Information Note on the Court’s case-law 153
June 2012
Sabri Güneş v. Turkey (preliminary objection) [GC] - 27396/06
Judgment 29.6.2012 [GC]
Article 35
Article 35-1
Six-month period
Non-working day taken into account when determining expiry date of six-month time-limit under Convention criteria, irrespective of position under domestic law: preliminary objection allowed
Facts – The dies ad quem, that is, the day on which the six-month time-limit expired, was a Sunday. The applicant had therefore lodged his application with the Court on the first subsequent working day, which was the Monday.
In a judgment of 24 May 2011 a Chamber of the Court considered that the time-limit should be extended to the first subsequent working day. Accordingly, the applicant having complied with the six-month time-limit, his case was examined and the Court found by five votes to two that there had been a violation of Article 6 § 1.
Law – Article 35 § 1: The question was whether, when the dies ad quem was a Saturday, a Sunday or any other official holiday or day considered to be an official holiday, the time-limit should be extended to include the first working day thereafter.
In its judgment the Chamber had pointed out that the Court had always taken domestic law and practice into account when determining the dies a quo, and decided to apply the same approach to the dies ad quem. However, in the Grand Chamber’s view, an analysis of the case-law of the Convention institutions revealed that while taking domestic law and practice into account was, admittedly, an important aspect, it was not decisive in determining the starting point of the six-month period. The six-month rule was an autonomous rule which had to be interpreted and applied in each case in such a manner as to ensure the effective exercise of the right of individual petition. Moreover, application by the Court of its own criteria in calculating time-limits, independently of domestic rules, tended to ensure legal certainty, proper administration of justice and thus, the practical and effective functioning of the Convention mechanism. In fact, if in determining the dies ad quem the Court were bound to take account of domestic law and practice, it would have to draw up a full schedule of official holidays in the forty-seven States Parties to the Convention. Furthermore, having regard to the numerous means of communication now available to potential applicants (post, fax, electronic communication, Internet, and so on), the six-month time-limit was, now more than ever, sufficient to enable them to consider whether to lodge an application and, if so, to decide on the content thereof. In so far as it was difficult to conclude that there was a general consensus between Council of Europe Member States as regards the calculation of time-limits, the Court considered that it should follow its established approach. In the light of the foregoing, the Court saw no reason to justify departing from that approach.
That being so, since the final decision of the Supreme Military Administrative Court of 16 November 2005 had been served on the applicant on 28 November 2005, the time-limit laid down by Article 35 § 1 had started to run on the following day, 29 November, and expired at midnight on Sunday 28 May 2006. The application had been lodged on 29 May 2006, that is, after the expiry of the above-mentioned time-limit. As far as the Court was concerned, the fact that the last day of the six-month time-limit fell on a Sunday and that in such circumstances, under domestic law, time-limits were extended to the following working day, did not affect the determination of the dies ad quem. In keeping with the Court’s well-established case-law, compliance with the six-month time-limit was determined using criteria specific to the Convention. Furthermore, there was no indication in this case that the applicant, who had been represented by a lawyer who should have been aware of the Court’s case-law in this regard, could not have foreseen that the dies ad quem would fall on a non-working day and acted accordingly. Consequently, because this application had been lodged more than six months after service of the final domestic decision within the meaning of Article 35 § 1, the Court was unable to examine the merits of the case.
Conclusion: preliminary objection allowed (out of time).
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This summary by the Registry does not bind the Court.
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