Admissibility at Strasbourg: Victims, Exhaustion and the Four-Month Rule

Victim status

An individual must claim to have been actually affected by the violation. In Klass and Others v Germany, App no 5029/71, 6 September 1978; Series A no 28 ECtHR · persuasive in Irish courts the Court said the Convention does not institute an actio popularis. But where measures are secret, legislation under which everyone can be monitored without knowing it can directly affect each potential user.

In Burden v United Kingdom, App no 13378/05, 29 April 2008; ECHR 2008 ECtHR · persuasive in Irish courts the Grand Chamber added that a person may challenge a law without an implementing measure if required to modify conduct or risk prosecution, or if a member of a class at real risk of being directly affected.

Exhaustion of domestic remedies

The exhaustion rule gives the State the opportunity to put matters right first. In Akdivar and Others v Turkey, App no 21893/93, 16 September 1996; Reports 1996-IV ECtHR · persuasive in Irish courts the Grand Chamber said applicants must use remedies that are available and sufficient, certain in practice as well as theory, and raise their complaints in substance. The Government claiming non-exhaustion must show the remedy was effective; the burden then shifts to the applicant. Mere doubts about prospects of success are no excuse.

In Vučković and Others v Serbia, App no 17153/11 and 29 others, 25 March 2014 ECtHR · persuasive in Irish courts the applicants had appealed to their Constitutional Court but had not raised their discrimination complaint there. The objection was upheld: it is the Convention complaint itself that must be aired at home.

Exhaustion in Ireland: McFarlane

In McFarlane v Ireland, App no 31333/06, 10 September 2010 ECtHR · persuasive in Irish courts Ireland argued that the applicant should first have sued for damages for breach of the constitutional right to trial with reasonable expedition. The Grand Chamber held the State had not shown that remedy to be effective: it had never been invoked in almost 25 years, and a remedy said to exist must be clearly set out and confirmed by practice or case law, even in a common law system with a written Constitution.

The 2003 Act did not fill the gap. Courts are excluded from “organs of the State”, and the Act is not retroactive. There was a violation of Article 13 with Article 6(1), by twelve votes to five.

The four-month time limit

Article 35(1), as amended by Protocol No. 15 (in force 1 August 2021), allows four months from the final decision. Most of the case law discusses the former six-month limit, and Schedule 1 to the 2003 Act still prints six months.

In Sabri Güneş v Turkey, App no 27396/06, 29 June 2012 ECtHR · persuasive in Irish courts the Grand Chamber held that the time limit is an autonomous Convention rule. The period ran from the day after service and expired at midnight on a Sunday; the domestic rule extending deadlines falling on non-working days did not apply, so the application lodged on the Monday was out of time.

The other grounds

The Court will not deal with an anonymous application, or one substantially the same as a matter already examined. It will declare inadmissible an application that is incompatible with the Convention, manifestly ill-founded or an abuse, or where the applicant has suffered no significant disadvantage unless respect for human rights requires an examination on the merits.

Key authorities

The leading authorities relied on in the source module (the full case table is in the module):

• Klass and Others v Germany, App no 5029/71, 6 September 1978; Series A no 28 ECtHR · persuasive in Irish courts — No actio popularis; secret measures can make each potential target a victim.
• Burden v United Kingdom, App no 13378/05, 29 April 2008; ECHR 2008 ECtHR · persuasive in Irish courts — Victim status without an implementing measure; the UK declaration of incompatibility not yet an effective remedy.
• Akdivar and Others v Turkey, App no 21893/93, 16 September 1996; Reports 1996-IV ECtHR · persuasive in Irish courts — The exhaustion rule, its flexibility and the burden of proof.
• Vučković and Others v Serbia, App no 17153/11 and 29 others, 25 March 2014 ECtHR · persuasive in Irish courts — The Convention complaint must be raised before the domestic courts.
• McFarlane v Ireland, App no 31333/06, 10 September 2010 ECtHR · persuasive in Irish courts — Ireland’s proposed constitutional damages remedy for delay not shown to be effective.
• Sabri Güneş v Turkey, App no 27396/06, 29 June 2012 ECtHR · persuasive in Irish courts — The time limit is autonomous; no weekend extension.

Key statutory references: European Convention on Human Rights, Articles 13, 34 and 35 (as amended by Protocol No. 15); European Convention on Human Rights Act 2003, Schedule 1.

Exam focus

1. Victim: directly affected, at real risk, or subject to secret measures?
2. Exhaustion: which domestic remedy, was it effective in practice, and was the Convention point raised?
3. Time: four months from the final decision, counted by Convention rules.
4. Then the Article 35(2) and (3) grounds.

LawShortcut uses a subject-by-subject legal-content review focused on substantive accuracy, authority, Irish-law relevance and exam application. Law can change; verify the current position before relying on these notes.

Related free notes: The ECHR Act 2003 · The margin of appreciation · all free Human Rights Law notes.