Kemevuako v. the Netherlands (dec.)

Information Note on the Court’s case-law No. 131

June 2010

Kemevuako v. the Netherlands (dec.) - 65938/09

Decision 1.6.2010 [Section III]

Article 35

Article 35-1

Six month period

Original of the application form submitted outside the eight-week time-limit set in the Practice Direction on the Institution of Proceedings: inadmissible

Facts – The applicant, an Angolan national, complained of the refusal by the Netherlands authorities to grant him a residence permit. The final judgment in the domestic proceedings was sent to him on 15 June 2009. On 14 December 2009 the applicant’s representative sent a fax to the Registry, stating that he wanted to lodge a complaint under Article 8 of the European Convention on behalf of the applicant. He was then notified by the Registry that he had to return the application form to the Court by 4 March 2010, eight weeks from the date of the Registry’s letter of 7 January 2010. The representative was further informed that if he failed to do so, the date of submission of the completed application form would be taken as the date of introduction of the application. On 4 March 2010 the applicant’s representative sent a completed application form to the Registry by fax. The original of the form, as well as copies of all relevant documents, were received by the Registry by post on 12 March 2010. The envelope containing all these documents was postmarked 10 March 2010.

Law – Article 35 § 1: The Court first considered whether the complaint had been lodged within a period of six months from the date on which the final decision had been taken. In accordance with the established practice of the Convention organs and Rule 47 § 5 of the Rules of Court, the Court normally considered the date of the introduction of an application to be the date of the first communication indicating an intention to lodge an application and giving some indication of the nature of the application. Such first communication, which might take the form of a letter sent by fax, would interrupt the running of the six-month period. However, as the Court had held, it would be contrary to the spirit and aim of the six-month rule if, by any initial communication, an application could set into motion the proceedings under the Convention and then remain inactive for an unexplained and unlimited length of time. Applicants had therefore to pursue their applications with reasonable expedition after any initial introductory contact. A failure to do so might lead the Court to decide that the interruption of the six-month period was to be invalidated and that it was the date of the submission of the completed application which was to be considered as the date of its introduction. The Court was to be provided with the original of the application form, and also of the authority form if the applicant was represented. Transmissions by fax of these documents were, without the originals of these documents, insufficient to constitute a complete or valid application (see Rule 47 § 5 of the Rules of Court and paragraphs 1, 4 and 5 of the Practice Direction on the Institution of Proceedings). The fact, therefore, that the completed application form in the present case had been transmitted to the Registry by fax on 4 March 2010 was irrelevant as long as the original form had not also been despatched within the eight-week period, which ended on 4 March 2010. Although the cover letter accompanying the application form, as well as that form itself, had indeed been dated 4 March 2010, the envelope containing the original completed application form, and the signed authority form and copies of all relevant documents, had been postmarked 10 March 2010. In this respect, the Court had held that, in order for the date featuring on a first communication to be considered as the date of introduction of an application, it should be posted at the latest on the day after the date which appeared on the communication. If that communication was postmarked more than one day later, it was the date of the postmark − rather than the date featuring on the letter or application form − that would be considered as the date of introduction. The Court saw no reason to apply a different criterion in respect of the question whether the original application form had been submitted within the eight-week period. The date on which the envelope containing the original application form had been postmarked, namely 10 March 2010, should therefore be considered as the date of introduction of the present case. The six-month period having started to run on 15 June 2009, the application had been out of time.

Conclusion: inadmissible (out of time).

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

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