The Strasbourg Court, the ‘Exhaustion of Domestic Remedies’ Rule, and the Principle of Subsidiarity: Between a Rock and a Hard Place?

by | Mar 18, 2013

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Colin Harvey is Professor of Human Rights Law at the School of Law, Queen’s University Belfast|Colin Harvey is Professor of Human Rights Law at the School of Law, Queen’s University Belfast|Colin Harvey is Professor of Human Rights Law at the School of Law, Queen’s University Belfast|Colin Harvey is Professor of Human Rights Law at the School of Law, Queen’s University Belfast

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: [49]. 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’ [56], and so there must be ‘a less rigid approach when examining the issue of compliance with the six-month time-limit’ [57]. Here, it was enough that ‘the applicants lodged their application with the Court within ten years of the disappearance of their relative’ [59] and that the applicants ‘did all that could be expected of them to assist the authorities’ in their ‘sporadic’ investigation [60]. 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.


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  1. Andrew Tickell

    Good to see someone focussing on this issue, particularly in the context of disappearance cases. The increase in formalism envisaged by the draft Protocol No. 15 and its potential impact on this sort of case is a real worry.

    I would question, however, whether the contention that the Court has “liberally applied” the admissibility criteria and there is a “trend in the Court’s case law towards relaxation of procedural constraints on access to justice” stands up to empirical scrutiny.

    As I’ve written elsewhere (, looking into the Court’s published jurisprudence, it is quite easy to find authorities like Ers & Ors v Turkey where the concepts of admissibility have been flexibly applied, and prima facie strict requirements have been waived or varied to accommodate a case of sufficient interest or perceived importance.

    However, published decisions make up a tiny % of all of the Court’s decisions on admissibility, the vast majority of which will be made by single judges, without reasons, with a negative outcome for the applicant. In 2012, the number of cases rejected as inadmissible topped 80,000, up from 50,000 the year before.

    Their absence from the Court’s databases make these decisions difficult to recover, but it is important not to exclude them from our conception of the Court’s complete effective jurisprudence.

    If anything, the “trend in the Court’s caselaw” is generally towards heightened formalism as a pretext for the elimination of the overwhelming majority of applications submitted to it, not less. As is often the case, drawing conclusions about how courts practice from published cases alone is a precarious (and here, I suspect misleading) enterprise.

    • Natasha Simonsen

      Thanks for your comment, which raises some important points. I agree that the Court’s decision-making on admissibility issues is deeply problematic. Not only are claims often mechanically rejected with the barest minimum of explanation, but the Court occasionally makes highly significant statements with potentially manifold consequences in the little-publicised context of admissibility decisions. A good example of the latter trend was the decision in Larioshina v Russia (, where the Court said that ‘a wholly insufficient amount of pension and the other social benefits may, in principle, raise an issue under Article 3 of the Convention which prohibits inhuman or degrading treatment’, but similarly broad statements were also made in Pancenko v Latvia ( and more recently in Budina v Russia ( The Court’s problematic decision-making in the admissibility context raises some very important issues for the rule of law, including the lack of consistency, clarity and coherence in the Court’s jurisprudence as a whole (as you say, it is quite possible that published jurisprudence supports one trend, while unpublished decisions suggest another trend entirely). A related problem is the unavailability of translations of the Court’s judgments in the languages of contracting states, including even those judgments ranked by the Court’s Jurisconsult as having the highest level of importance. If other contracting states cannot access the decisions of the Court, then how are they to respond to their implications, and incorporate changes into their domestic law? These features seriously undermine the capacity of the law to act as a guide to citizens, practitioners, courts and officials, as Raz would have it aspire to do.

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