Information Note on the Court’s case-law 260
March 2022
Saakashvili v. Georgia (dec.) - 6232/20 and 22394/20
Decision 1.3.2022 [Section V]
Article 35
Article 35-1
Six-month period
Application lodged within legitimate three-month extension of six-month time-limit during critical Spring 2020 period of Covid-19 global pandemic: preliminary objection dismissed
Facts – The applications concern, under Articles 6, 7 and 18, the fairness of two separate sets of criminal proceedings in which the applicant, a former President of Georgia, was tried and convicted in absentia of complicity in committing criminal battery, abuse and misuse of authority.
Law – Article 35 § 1 (application no. 22394/20): As the contested submission date predated the entry into force of Protocol No. 15 which reduced the applicable time-limit under Article 35 § 1 for lodging applications to four months, the Court referred to its previous case-law on the six-month rule. In the present case, the starting point for the calculation of the six-month limit was the date the fully reasoned copy of the final Supreme Court’s decision in the relevant set of proceedings had been served on the applicant’s legal representative, namely, 1 October 2019.
In the normal course of events, this limit would have expired six calendar months later, on 1 April 2020. In the meantime, however, on 11 March 2020 the World Health Organisation declared a public health emergency of international concern – the highest level of alarm – in relation to the global outbreak of a new infectious and mostly respiratory disease caused by the SARS-CoV-2 coronavirus (COVID-19). In the light of those developments, on 16 March and 9 April 2020 the President of the Court announced a number of exceptional measures - decided in the exercise of his competence to direct the work and the administration of the Court under Rule 9 of the Rules of Court - to allow applicants, High Contracting Parties and the Court to handle the difficulties to which the global pandemic and widespread lockdown had given rise. One effect of those measures was that the Registry of the Court, when registering newly received applications, and without prejudice to any subsequent judicial decision on the matter, had to add three months in total to the method of calculation of the six-month rule under Article 35 § 1 whenever a calendar six-month period had either started to run or, on the contrary, had been due to expire at any time between 16 March and 15 June 2020.
Although the Government had not contested the applicant’s argument that the six-month period ought to be calculated in a manner that took into account the global health crisis and the above decision, the six-month rule was an autonomous public-policy rule par excellence and thus, it was necessary for the Court, independently of the parties’ position, to rule whether the applicant had complied with Article 35 § 1 by introducing application no. 22394/20 on 25 May 2020. In this connection, the Court noted that the Governments of two Member States had either requested clarification or expressed concerns about the question of the running of the six-month period during the global pandemic and in the light of the exceptional measures announced by the Court’s President. Whilst it was not the Court’s task in the present case to reply to arguments or concerns expressed outside the current proceedings, the Court, recalling that it had not yet had an opportunity to examine the application of the six-month rule in the exceptional circumstances of the pandemic, considered that it had to have regard to a range of relevant elements in its analysis of the present case.
In the Spring of 2020 the absolute majority of the member States, including the Council of Europe’s host State, France, had gone into complete lockdown because of the spread of COVID-19. That had entailed, amongst many other things, sudden and significant limitations on the possibility for potential applicants to have access to domestic court files, including for the purposes of preparing applications to the Court, as well as severe disruption of international transport and postal services all across Europe. In addition, by March-April 2020, a number of Member States had adopted measures extending time-limits for bringing cases to domestic courts and otherwise adapting judicial proceedings during the period of the public health emergency. The extent and insurmountable nature of the practical difficulties linked to that critical period had affected all parties to Court proceedings, applicants and respondent States alike, but had also required the Court to take measures, in accordance with the terms of the Convention and the Rules of Court, to maintain the exercise of its core, adjudicative functions pursuant to Article 19 of the Convention and ensure that it was not put in peril.
The ordinary application of the six-month rule in the extraordinary circumstances prevailing in the Spring of 2020 had risked endangering the right of individual petition for a certain period of time and would also have had rendered difficult if not, in some cases, impossible, the engagement by High Contracting Parties with cases. However, in the architecture of the Convention, an instrument of the European public order for the protection of individual human beings, the Court’s task under Article 19 to ensure observance of the engagement undertaken by the Contracting States meant the continued functioning of the right of individual petition enshrined in Article 34 was essential. Under Article 32, the Court had full jurisdiction to interpret and apply any provision of the Convention, including the six-month rule contained in Article 35 § 1, and to decide on any eventual dispute as to whether its interpretive jurisdiction extended to a matter.
In view of the above, in the exercise of its functions under Articles 19 and 32, weighing the legal considerations behind the six-month rule under Article 35 § 1 against the need to preserve the cornerstone of the Convention mechanism under Article 34, the Court confirmed that to achieve this balance, the running of the six-month period could legitimately be considered to have been suspended during the most critical phase of the global pandemic for three calendar months in total. This was, moreover, consistent with the general principle of public international law of force majeure as well as that of contra non valentem agere nulla currit praescriptio.
This extension was of an exceptional nature and had to be understood to be strictly related to the unprecedented situation that had occurred in the Spring of 2020 and – importantly – to the consequences that had been caused by the sudden and unexpected imposition of lockdowns in almost all of the Contracting States. Further, any concerns that might have arisen in relation to the considerations of legal certainty had been effectively catered for by the measures publicly announced by the Courts’ President, which provided for a clear time frame to the extension to operate in the given circumstances. Indeed, the President’s decisions had only sought, through the exercise of the Court’s exclusive power of interpretive jurisdiction, to adjust, by coming up with specific, clear and proportionate indications, the method of the calculation of the six-month rule to the reality of the global health crisis in order to preserve the essence of the right of individual petition.
Having regard thus to the fact that 1 April 2020 fell within the abovementioned time frame, the applicant had had additional three months – until and including 1 July 2020 – to lodge an application with the Court. As application 22394/20 had been introduced on 25 May 2020 it could not have been considered to have been lodged out of time.
Conclusion: preliminary objection dismissed (unanimously)
As regards the remaining objections as to the admissibility of the applications, the Court, unanimously, (a) joined the objection of the incompatibility ratione materiae with the provisions of the Convention of the applicant’s complaints under Article 18, taken in conjunction with Articles 6 and 7, to its examination of the merits; and (b) dismissed the objection that the applications constituted an abuse of the right of individual petition.
Conclusion: admissible (unanimously)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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