The lesson of Chaaban and Others v. Belgium: a cassation appeal that cannot provide redress for the particular Convention complaint does not necessarily postpone the time limit. A case can still be pending in Belgium while the Strasbourg clock is running.
Four months sounds simple.
Under Article 35 of the European Convention on Human Rights, an application must in principle be brought before the European Court of Human Rights within four months of the relevant final domestic decision.
But one of the most dangerous assumptions in Strasbourg litigation is that the last judgment delivered nationally is necessarily the decision from which that period starts to run.
It is not.
The Belgian case Chaaban and Others v. Belgium (dec.), no. 57273/16, 12 February 2019, illustrates how serious the consequences can be when the starting point of that period is not identified in the way Strasbourg identifies it.
The case is particularly relevant to Just Rights Europe: the applicants were represented before the European Court by the lawyer who founded and leads Just Rights Europe.
The case concerned the death of a detainee in Forest Prison.
Criminal proceedings were brought against two doctors involved in his care. After convictions at first instance, the Brussels Court of Appeal acquitted them on 26 February 2016.
The applicants, acting as civil parties, lodged an appeal on points of law before the Belgian Court of Cassation.
The public prosecutor did not.
By an order of 16 June 2016, the Court of Cassation refused to admit the applicants' appeal on a procedural ground.
The application to Strasbourg was lodged on 23 September 2016.
At first sight, one might assume that the Strasbourg time limit began with the Court of Cassation's order.
The European Court held otherwise.
The decisive question was what the applicants' cassation appeal could actually achieve.
As civil parties, their appeal could concern their civil interests, but could not by itself reopen the criminal prosecution following the acquittal.
For that, an appeal by the public prosecutor was required.
No such appeal had been lodged.
The Court did not treat the complaints, which concerned a death in custody, as a matter of simple medical negligence. For those Convention complaints, the applicants' own cassation proceedings therefore did not constitute an effective remedy which they were required to exhaust.
That conclusion had an immediate consequence.
If a domestic remedy does not have to be exhausted for the relevant Convention complaint, pursuing it does not necessarily postpone the Strasbourg clock.
The European Court examined when it became clear that the public prosecutor would not appeal in cassation against the acquittal.
That moment came when the fifteen-day period available to the prosecutor for lodging such an appeal expired.
The Court therefore calculated the Convention period from 15 March 2016, rather than from the later order of the Court of Cassation.
The application was consequently declared inadmissible as out of time.
Chaaban was decided under the former six-month rule.
Where the final domestic decision was taken on or after 1 February 2022, applicants normally have only four months.
The lesson is therefore even more important today.
Applicants must exhaust effective domestic remedies before applying to Strasbourg.
But Strasbourg does not require every conceivable domestic procedure to be pursued.
This creates two opposite risks.
An applicant who goes to Strasbourg too early may face inadmissibility because an effective domestic remedy remains unexhausted.
But an applicant who waits for a procedure which Strasbourg does not consider effective may discover that the Convention time limit continued to run.
The questions are therefore inseparable:
Which domestic remedy must be exhausted for this particular Convention complaint?
And from which decision does the four-month period begin?
A national lawyer may look at the procedural file and see:
Cassation pending.
A Strasbourg lawyer must ask:
Pending for what purpose, and capable of providing what remedy?
That distinction is fundamental.
The chronologically last national judgment and the relevant final domestic decision under Article 35 are not necessarily the same.
A case can still be moving through the Belgian courts while the Strasbourg time limit has already started.
Chaaban contains another important warning.
The Belgian Government had not raised the time-limit objection.
The European Court nevertheless examined it of its own motion and rejected the application.
Applicants therefore cannot rely on the respondent Government overlooking a time-limit problem.
Strasbourg itself can identify it.
Chaaban demonstrates how far Strasbourg procedural thinking may differ from domestic procedural instinct.
A lawyer may reasonably focus on the fact that national proceedings are continuing.
Strasbourg asks a different question:
Does the pending remedy still offer effective redress for the particular Convention complaint?
If not, time may already be running.
The real question is therefore not simply:
Do I have four months?
It is:
Four months from when?
A case can still be pending nationally while the Strasbourg clock is already running.
These notes are general information on Convention law; they do not constitute legal advice and do not create a lawyer-client relationship.
After the final decision of the highest national court, a case may be submitted to us directly, by the client or by national counsel.