The Strasbourg Court, the ‘Exhaustion of Domestic Remedies’ Rule, and the Principle of Subsidiarity: Between a Rock and a Hard Place?
By Natasha Simonsen –
The recent judgment of the European Court of Human Rights in Er & Ors v Turkey illustrates the tension between the principle of the subsidiarity and the trend in the Court’s case law towards relaxation of procedural constraints on access to justice.
The case arose from the disappearance of a Kurdish man, Ahmet Er, in Turkey in 1995. The case before the Court concerned a series of claims arising out of his arrest and detention (Article 5), disappearance and presumed loss of life (Article 2), and ill-treatment in custody by Turkish gendarmes (Article 3). The significance of the case lies in the relaxed approach adopted by the ECtHR to the ‘exhaustion of domestic remedies’ rule (Article 35(1)) and its implications for the principle of subsidiarity.
The principle of subsidiarity means that the primary responsibility for protecting human rights lies with states: only once ‘all domestic remedies have been exhausted’ can an application be made to the Court. The application must also be made within six months of the failure of the last domestic remedy. The objectives are to encourage applicants to try the national authorities before coming to the Court, and second, to bring those applications promptly. The Court has, historically, interpreted both principles fairly liberally (Varnava & Ors v Turkey, among many other authorities).
However, the massive increase in the Court’s docket (there are currently more than 128,000 pending cases: see here) has created new pressures. The recent Brighton Declaration proposes to reduce the six-month rule to four months. A retraction of the six-month rule is fine in principle, but is made more difficult by the trend in the Court’s case law, exemplified by Er & Ors v Turkey, towards relaxation of the domestic remedies rule.
In Er, the critical issue for the Court was when the six-month clock should be taken to have started ticking. Turkey submitted that it should be measured from the time that the Hakkari Civil Court certified Ahmet Er’s presumption of death in May 2003 (the applicants didn’t lodge their claim until May 2004). But the Court said that was not a relevant ‘domestic remedy’, because it was obtained for the purposes of property and custody matters, rather than (presumably) for obtaining a remedy for his disappearance and death: . Where the case, as here, concerns a disappearance, ‘there is a state of ignorance and uncertainty and, by definition, a failure to account for what has happened, if not an appearance of deliberate concealment and obstruction on the part of some authorities’ , and so there must be ‘a less rigid approach when examining the issue of compliance with the six-month time-limit’ . Here, it was enough that ‘the applicants lodged their application with the Court within ten years of the disappearance of their relative’  and that the applicants ‘did all that could be expected of them to assist the authorities’ in their ‘sporadic’ investigation . Judge Sajó, in a separate concurring opinion, cautioned that even this generous ten-year period for lodging applications with the Court should not be interpreted too rigidly.
Given that the existing, liberally applied, restrictions on admissibility are nevertheless opposed by some members of the Court as being too narrow, the success of any future attempts to reduce the six-month rule to four months must be cast into doubt. In any case, the Court appears firmly wedged between a rock (the interest in affording substantive justice) and a hard place (the need to take a stricter approach to admissibility rules to manage the ever-expanding caseload).
Natasha Simonsen is a DPhil student in the Faculty of Law, University of Oxford.