COUNCIL OF EUROPE — — — CONSEIL DE L'EUROPE

Strasbourg; 5tïï" September-, -1-955 .••••' » Confidential "DH (55) U Or. Fr.

m COEOQ5281

TTTT"ROP~RAT\T COMMISSION OTT HUMAN RIGHTS

N O T E

by the Human Rights Department concerning Article 26 of the Convention

I

(

Article 26 of the European Convention of Human Rights'

states: "The Commission may only deal with the matter after

all domestic remedies have been exhausted, according to the

generally recognised rules of international law, and within a

period of six months from, the date on which the final decision

was taken."

This provision imposes two conditions precedent as to the

admissibility by the Commission of any application:

1. the exhaustion of domestic remedies]

2. the introduction of the case within a period of six months

from the date of. the final local decision. A.23-690

DH (55) il - 2 -

I. CONCERNING THE EXHAUSTION OF DOMESTIC REMEDIES

History of Article 26

In reviewing the preparatory work of the European Con-

vention of Human Rights, we find that the following clause

appeared in the draft first prepared by the European Movement

in 1949: . . • "A petition shall not be so dealt with until the

internal juridical processes of the State concerned have been exhausted, provided that these function without unreasonable delay." The recommendation adopted by the•Consultative Assembly

on 8th September, 19^9 (Doc. 108) contains Article 12 which is

as follows: "After all other means of redress within a State have

been tried, any person, or corporate body, which claims to have been the victim of a violation of the Convention by one of the signatory States, may petition the Com- ^ mission in a request•presented through legal channels.

The drafting of this text underwent several stages in the

Committee of Experts and the Conference of Senior Officials.

The principle was first stated as follows: "The Commission may

only deal with the matter after all domestic remedies have been

exhausted."

As a result of a proposed amendment there was then added:

"according to the generally recognised rules of international

law. "

Finally, during the examination of this draft by the Committee of Ministers, the latter part of this phrase was drafted for reasons of clarity as follows: ; "according to the generally recognised rules of international law". /French text changed onl^J . . .

The preparatory work of the Convention, either by the.

Committee on Legal and Administrative Questions, the Assembly,

the Committee of Experts or the Conference of Senior Officials,

only contains extremely brief comments or explanations con-

cerning this principle. In the first report of the Committee

on Legal and Administrative Questions it was stated as follows:

"The Commission shall not deal with an individual com-plaint until after the plaintive has exhausted.1 all other means, of redress within a state' . Long prac-tice in international procedure has defined the meaning of this expression as being a resort to the ordinary legal channels, to the exclusion, for example, of a request for a re-trial of the case." (Doc. 77).

M. Dominedo stated as follows in the Assembly:

"In order to avoid conflicts between the international court and national courts,' it will be necessary to lay down that recourse to the Court in order to assert a positive right, for which sanctions are laid down, will only be permitted when recourse .to.the national courts has been exhausted." (CR 1949, Part II, p. 424).

"We must equally determine the precise line of demarcation between the national courts and the supra-national court. The right to bring a complaint should only be allowed in the case where all recourse to national courts has been exhausted. This is a technical question " (CR 1949, Part IV, p. 1248).

Sir David Maxwell-Fyfe observed:

"The first point we wish to establish is that the indi-vidual should have a chance of getting justice and redress against injustice that happens to him. He can only come to the. Commission when he has exhausted all the remédies of his own country and the means of redress open to him within his own State. The Assembly will remember that Article 12 only comes into operation after all other means of redress within a State have been tried. The suggestion, therefore, that it will produce shoals of complaints must be considered, with the additional con-sideration that the person who makes the complaint must already have gone through the legal procedure of his own country."

The following two comments are contained In the report of the Committee of Experts who had been charged with the drafting of the Convention:

- "The Committee further considered that it was ob-.. viously within the Commission's competence to decide-whether, in a case of this kind, all legal remedies within a State had been exhausted." (Doc. CM/WP 1 (50) l) .

- "The.Committee inserted in the text of Article 18 (22) the words 'according to the generally recognised rules of international law' to indicate that, in-order to decide whether all domestic legal remedies had been exhausted, it would be necessary to take into account the jurisprudence established in this respect according to which cases, where national tribunals improperly delay their taking decisions are considered as an exhaustion of legal remedies." (Doc. CM/WP 1 (50) 6 and CM/WP (50) 1 5 ) .

Concerning the rule of the,Law of Nations

Article.26 simply adopts the rule of the Law of Nations

which in principle makes an international claim subject to the

preliminary exhaustion of local .remedies.

According to some opinions on legal doctrine,.the exhaustion

of local remedies by an injured person is an essential condition

of the creation of an international responsibility, while others

only attribute to it the character of a requisite condition for

referring a case to an international tribunal. . (See : generally

on this question, Annuaire de l'Institut de Droit International,

1954, .tome I, pp. 5-111).

M. Henri Rolin, in his Lecture to the Academy of Inter-

na tiônàl" Law stated: ; "Since traditionally the rule of exhaustion 'of domestic

remedies was exclusively conceived as an estoppel for claims brought prematurely before international tribunals, we prefer to regard a domestic remedy, where it exists, as a proper tribunal of first degree which has been invested by the Law of Nations with the duty of ensuring the observance of the latter." (H. Rolin, Les principes de Droit International Public, Recueil des Cours, 1950, ' tome II, p. 454) .. ..............

M. Ch. de Visscher regards the preliminary exhaustion of

local remedies as a pure "rule of procedure" which "has less

effect on the conditions of the existence of such responsibility

than.on the conditions of the exercise of the claim."

(Ch. de Visscher, Le déni de justice en Droit International,

Recueil des Cours, 1935* tome II, p. 42).

Without considering further the juridical character of this

rule, let us.be content to say that it is a principle of the

Law o.f Nations which has been accepted and confirmed by inter-

national customary law, by conventional law and by international

jurisprudence.

For example: (a) The Agreement of 20th December, 1907, setting up the

Court of Justice of Central America provides in Article.2:

"This Court shall also take cognizance of the questions which individuals of one Central American country may raise against any other of the other Contracting Govern-ments, because of the violation of Treaties or Conventions, and other cases of international character; no matter whether his own government supports said claim or notj and provided that the remedies which the laws of the respective country provide against such violation shall have been exhausted and that a denial of. justice shall be shown."

(b) The General Act of Geneva of 26th September, 1928, Arti-

cle 31', para. 1, provides as. follows:

"in the case of a dispute the-occasion of• which-, ac-cording to the municipal law of one of the parties, falls within the competence of Its judicial or administrative authorities, the party in question may object to the matter in dispute being submitted for settlement by the different methods laid down in the present General Act until a decision with final effect has been pronounced, within a- reasonable, time, by the.competent authority."

This same provision is found in.the draft of the European

Convention for the Pacific Settlement of Disputes (Art. 31).

(c) This rule appears in a great number of bilateral treaties of arbitration and conciliation.

For example, reference can be made to Article 3 of the Treaty concluded on 20th May, 1926,- between Germany and the Netherlands:

"In regard to questions which, under the national laws of the party against which a demand has been formulated, are within the competence of judicial authorities, in-cluding administrative tribunals, the defendant party -may require that ' the'''dispute shall not be submitted to arbitral award until a final decision has been pronounced by these judicial authorities and that the matter "'shall be brought before this tribunal not later than.six months after the date of such decision " (See Treaty Series,

.. L. of N., Vol. LXVT, 1927-28, p. 121). .

. It should further be noted that this rule can only be excluded by the clear w.ish of the Parties to derogate from the general principle. This is the case In the. arrangement con-cluded on 10th August,. 1910, between Great Britain and. the •United States:

"No demand shall be refused or rejected by the appli-cation of the general principle of international law in respect of the exhaustion of local, remedies being con-sidered as a condition precedent' f or "the validity' of v-such claims,." (Article 3). /Not official textJJ

Concerning the meaning of 'this rule

In order to define the rule of exhaustion of local remedies

and to determine its significance, Article 26 refers to the "generally recognised rules of international law" in this

respect.

D H (55) il - 8 -

The examination of,this question should accordingly be

made in the light of the principles of the Law of Nations.

It must be recognised, however, that international jurisprudence

is not as helpful nor is the practice as clear as is presumed

by Article 26.

It can be agreed first of all that the consequences of

this rule are to make an- Interna-t-lonal • el;a:lm- • sub joe t -to such

exhaustion (Case of the Panevezys-Saldutlskis Railways; P.C.I.J.,

Series A/B, No. 76 p. 18). It can further be agreed that this

rule provides exclusively for "remedies before the judicial

authorities, including administrative tribunals, and not for

remedies of a non-judicial character.

The rule according to which an international tribunal cannot

hear a case unless there has been a previous exhaustion of local

legal remedies has been established as a result of the principle

that "it is the duty of the State to assure to foreigners* in

the.sphere of judicial protection, a treatment consistent with

the requirements of international law". (Ch.' de Visscher, .Le

déni de justice en Droit International', Recueil dos Cours, 1933*

tome II, p. 376) .

The exhaustion of remedies should then be understood as

being' "within the sphere of local judicial protection."

Article 26 of the Convention clearly states that such ex-

haustion takes place by a "final decision". Does the word

"decision" not mean a "decision of a judicial or administrative

tribunal" in the case concerned?

This Is, moreover, the result of doctrine, conventions

and jurisprudence.

One author puts the question as follows: "Shall the

International judge be bound to stay the proceedings for as long

as the local judge has not given a final judgement. The

former, however, will in no way be bound by the judgement of

the local tribunal." (C. Tenekides, L'epuisement des voies

de recours internes, Revue de Droit International, 1933* P-515)'

The Treaty between Germany and the Netherlands, quoted

above, submits to the rule of exhaustion "questions which

are within the .competence of judicial authorities, including

administrative tribunals" and which can only be submitted to

arbitration after "a final decision has been pronounced by these

judicial authorities." (See also the Arbitration Agreement be-

tween Germany and Switzerland of 3rd December, 1921, Article 10,

para . 2) (1)'

• •/

(l) 'If in an arbitration award it is proved that a decision or measure of a court of law or other authority of one of the Parties is wholly or in part contrary- to international law, and if the constitutional law of that Party does not permit, or only partially permits, the consequences of the decision or measure in question, to be annulled by administrative measures the arbitration award shall award the injured Party equitable satisfaction of another kind.

The above quotation does not directly affect the question under examination, but it indicates the origin of Article 50 of the European Convention of Human Rights.

in the Panevezys-Saldutiskis Case, the Permanent Court of

International Justice referred to the rule of'preliminary ex-

haustion of local remedies and held that: "The Lithuanian

courts alone can pronounce a final decision" in this matter.

(P.O.I.J., Series A/B, NO.. 76, p. 19) .

. . .The .arbitration judgement given on 8th June, 1932* in the

SALEM Case between the United States and Egypt states: • "As a •

rule'it is sufficient if the claimant has brought his suit up

to the highest instance of the national judiciary." (See the

SALEM Case, United States v. Egypt, 1932, in the Review of

International • Law-, X-I-, 1-93-3* !>• 'jCiO et seq.).

In the memorandum attached to the Note sent by the British

Government on 24th April, l'9l6, to the United States Government

it" is stated as follows: "His Majesty's Government attaches the greatest impor-

tance to the observation of the following rule: when persons have an effective remedy available before the Courts of a civilized country pursuant to which they can obtain adequate satisfaction -in-the case of a violation of their rights, it is necessary to make use of the ef-fective remedy so provided for before entering upon diplomatic action." /Not official text ¿J (See American •Journal of International Law, 1916, special supplement, P. 139.) Finally, formula No. 27, drafted by the Preparatory Commit

tee of the Conference for the Codification of International Law

at The Hague in 1930, also provides:

"When the foreigner has a legal remedy open to him in the courts of the State (which term includes administrative courts), the State may require that any question of inter-national responsibility shall remain in suspense until lté, courts have given their final decision." (See Li of N., Doc . C -75, M.69/ 1929, P- 139.)

Of what does the exhaustion of remedies consist?

The rule of exhaustion requires that the party shall have

employed all judicial remedies which the domestic law makes

available to him. A confusion should not be made between a

final decision and a decision which exhausts all remedies.

A judgement pronounced-by a court of first Instance, against

which no appeal has been made within the legal period laid down,

isxa final decision. The party has not, however, the right

to rely upon such decision because, by failing to appeal, he

has not- exhausted the remedies open to him.

In--the, case., therefore, where an appeal--to -the"Cour- de

Cassation" is- allowed, it is only • the judgement given- by -the

"Cour de Cassation" which will be considered according to the

Law of Nations as "the, final decision" .

The judgement of the Permanent Court of International

Justice given in the case of The Electricity Company of Sofia

and Bulgaria leaves no doubt on this subject:

- • "Whatever the term applied by the Sofia Court of Appeal to its judgement, the fact remains that it was not a decision with final effect within the meaning given to that expression by Article 3, No. 1. The local remedies rule contemplated by the Treaty of '1931 implies the ex-haustion of .all appeals, including appeals to the Court of Cassation, a decision by which alone renders the judge-ment final either by annulling the judgement of the Court -

of Appeal and sending the case back for a re-trial, or by-rejecting the appeal." (See P.C.I.J., Series A/B,

. . No. 77, p.79.) • ' The arbitration -judgement given:-on 8th June, 193'2", between

the United States and Egypt in the SALEM Case is in the same

sense :

"As a rule it is sufficient if the claimant has brought his suit up to the highest instance of the national judi-ciary." (See the SALEM Case, United States v. Egypt, 1932, in the Review of International Law, XI,. 1933, p. 760 et seq.)

The same principle should apply in respect of remedies in

administrative matters before the Council of State or before

any other authority set up by the, municipal law of each Party

in order to hear cases in the final instance.

On the other hand, it is agreed that extraordinary procedure

such as requête civile (application for re-trial), la prise

partie (suit against a judge), recours en revision (application

for re-trial In criminal case), etc. do not come within the

sphere of application of this rule.

This rule, therefore, applies only to the ordinary reme-

dies available according to the local law to the injured party.

The Committee on Legal and. Administrative Questions stated:

"Long practice in international procedure has defined the

meaning of this expression as being a resort to the ordinary

legal channels, to the exclusion, for example, of a request for

re-trlal of the case." (Doc . 77).

This also appears in the Yuille, Shortridge & Co., Case:

"it is true that the rule .of exhaustion of the courts should not be interpreted in an absolute sense. For example, the injured party need not institute a discip-linary case against the judge who pronounced the final-judgement." (See the "Note on Doctrine" in the Yuille, Shortridge & Co., Case, La Pradelle-Politis, 11, 112; P. Guggenheim, Traite du Droit International Public, tome II, p. 23, note 2). /Not official textJJ

Method of examination of exhaustion

In considering the exhaustion of local remedies, it is

necessary to refer to the local law in order to find out in each

case if the rule has been observed or not. This examination

must inevitably involve a consideration whether the national

courts of a Party are competent or not to hear the case and what

remedies are open to individuals.

The rule shall accordingly be applied having regard to the municipal legislation of each Party to the Convention.

"The question whether or not the Lithuanian courts have jurisdiction to entertain a particular suit depends on Lithuanian law and is one on which the Lithuanian courts alone can .pronounce a final decision. It....is. .not for this Court to consider the arguments which have been addressed to it for the purpose either of establishing the jurisdiction of the Lithuanian tribunals by adducing particular pro-visions of the laws in force in Lithuania,•or of denying the jurisdiction of those tribunals by attributing a parti-cular character (seizure jure imperii) to the act of the Lithuanian Government. Until it has been clearly shown that the Lithuanian courts have no jurisdiction to enter-tain a suit by the Esimen Company as to its title to the -Panevezys—Saldutiskis' railway, the Court cannot accept the contention of the Estonian Agent that the rule as to the exhaustion of local remedies does not apply in this case because Lithuanian law affords no means of redress." (P.C.I.J.., Series A/B, No. 76, p. 19) .

Onus of proof

. As. an international claim is subject to the exhaustion

of local remedies, it is for the complainant to establish that

he has fulfilled this condition or, where appropriate, that he

did not have to fulfil it.

This rule also appears in the judgement of the Permanent

Court of International Justice just quoted. .(Series. A/B, \ .-

No . 76, p . 19).

Article 26 of the Convention makes, the ..exhaustion of local

remedies a mandatory condition since it formally provides that

"the Commission may only deal with a matter after all domestic

remedies have been exhausted...."

Moreover, Article 27, para.. 3, compels the Commission to

reject any petition, considered as Inadmissible according to

Article 26. -.-.•-.•••

. ,It can accordingly be concluded from these two provisions

that the Commission is bound automatically to .examine a .case if

the applicant has conformed with the rule of exhaustion of

domestic remedies.

In the case, however, where the defendant Party has not

raised the obje.ction . o.f... inadmissibility, it shall be for the

Commission to raise such objection automatically.

The Committee of Experts instructed to draft the Conven-

tion in 'fact stated:

"that it was obviously within the Commission's competence to gocide_ whether, in a case of this kind, all legal remedies within a State had been exhausted, without it being. necessary to make an expressed provisio.n therefpr,..." (Doc. CM/WP 1 (50) 1)

' Application of this rule" The exhaustion of domestic remedies was only included in

the Assembly draft in respect of applications coming from "any

person". On the' other hand, the Committee of Experts made this a definite and general rule which, by reason of its position in the Convention, applies both to applications by a Contracting Party (Article 24) and to those coming from individuals (Arti-cle 2 5 ) .

The same opinion was stated by the Rapporteur of the Com-mittee on Legal and Administrative Questions, M. Teitgen, to the Assembly on 24th September, 1953, after the Convention had come into force.

."Cases may not be brought before the Commission, whether they concern a Member.State, a private Individual or group or' a""non-governmental organisation, until all local remedies have .been exhausted. I refer you to Article 26." (CR 1-953, Vol. V,' p". 6 1 3 )

In view of the fact that the Convention refers to the

"generally recognised rules of international law" in the matter,

the Commission must consider these rules in its examination as

to whether the above rule applies or not in a given case.

For example, as far as concerns the complaint of one Con-

tracting Party against another Party, the rule will only apply

to the extent that the complainant Party intervenes in order to

obtain-redress -for a breach 'of the Convention against a person

subject -to the jurisdiction of the defendant Party..

On the other hand, if a Party brings an action on its own

behalf for a breach of the obligations adopted*by the Conven-

tion, the above rule cannot be used against it, because in this

case, being a State, it cannot pursue its case before the

national courts of the other Party. Example: the complaint

of one Party against another Party for a breach of Its obli-

gation to hold free elections at reasonable Intervals by secret

ballot (Article 3 of Protocol).

In other words, In disputes between states or, in parti-cular, In disputes between Contracting Parties, the rule of exhaustion of domestic remedies shall not apply in cases where the non-competence of the local courts is clear.

M. Rolin stated in this connection: "Where local remedies .have.been tried in vain or where they are shown to be impossible through lack of adequate "'•provls Ions' of"'thev local'law.' it will be necessary to seek redress by international means." (op. cit. p.'455)

International law also recognises that this rule could not apply in certain cases:

- -even when a State is not acting as a sovereign power but as a. legal person, - . . .

and-even-when-a - State'' is acting In" the "redress of damages caused-to private-persons.

The cases'established under International law as being

outside the rule of exhaustion of domestic remedies should

accordingly be as valid for Article 24 as' for Article 25 of

the Convention.

Some writers represent these cases as being exceptions to

thé rule; others maintain that what are called exceptions to the rule are in fact only cases falling outside the sphere of

the rule. It is sufficient to observe that:

1. This rule has no application when the local system of the

State-, provides .no., remedy., to the injured...party.,.

... In. the case of..thev...P.aneve.zys-Saldutis.kis Railway, the

Permanent .Court of...International Justice , stated: • "There can. be . no . need to reso.rt to the ...municipal. ...courts

if those courts have no jurisdiction to afford relief; nor is it necessary again to resort to those courts if the result must be a repetition of a decision already given." (See P.C.I.J., Series A/B, No. 76, p. 18.)

In the case of the "Interocean Transportation Company of

America" against the United States the arbitrator stated in his

judgement of 5th October, 1937: "Thus, though claimant's failure to purs.ue his remedies

against Great Britain to exhaustion in .the British courts, by appealing from the adverse- decision in prize of the President, is prima facie a bar to his right to prosecute his claim, it is open to claimant to show that he did not do so because the settled course of decision in those courts had already predetermined the judgement on appeal, and that if he had appealed, he would inevitable have stood as he stands-now, with judgement in prize against him". (Cf. Annual Digest and Reports of Public Inter-national Law Cases, 1935-1937, P- 274.)

The cases could here be included where, according to the local system of a State, its own courts are not competent either to decide cases brought against the State (case of Ruden and R.T. Johnson, Moore Arbitration, 1653* 1655* 1656) or to give judgement on .measures taken by certain governmental authori-ties (judgement by M. Unden of 29th March, 1933, in the Bulgarian-Greek dispute concerning certain forests of Central Rhodopia, in: Annual Digest and Reports of Public Inter-national Law Cases, 1933-34, p. 94.). 2. This r.ule has no application, even if remedies exist,

if .access to the courts., is prevented, if the remedy is shown in advance to be ineffective, or if the courts do not Inspire confidence or if they delay judgement, etc. Reference Is made to the judgement of the Permanent Court

of International Justice in the case of the Chorzow Factory:

"It is, moreover,, a principle generally accepted in the jurisprudence of International arbitration, as well as by municipal .courts,- that one Party cannot avail himself of the fact that the other has not fulfilled some obligation or has not had recourse to some means of redress, If the former Party has, by some illegal act, prevented the latte from.fulfilling the obligation in question, or from having recourse to the tribunal which would have been open to him (P.C.I.J.,Series A, No. 9, p.31,) M. Unden, in his judgement In the Case of Central Rhodopia

rejected the rule of exhaustion and held that, inter alia, the confiscation of the forests concerned had been carried out pur-suant to a Bulgarian law which the local courts had been com-

pel led. to apply and whose provisions provided no chance to the parties of winning their case.

In the R.T. Johnson case, the. rule of exhaustion was simi-larly rejected as the resource to the local courts had been considered superfluous either because the law laid down by the higher courts left no doubt as to the fate of the action or because other parties in the same circumstances had already referred their cases to the courts and had had such cases dis-missed. • (R.T. Johnson Case, 26th February, 1870, Lapradelle and Politis, 11, p. 593-94).

Finally, reference should be made, without pretending to

exhaust this subject, to the dispute between the British Govern-

ment and the Finnish Government in regard to the requisition of

Finnish property during the 1914-18 war. A long extract is

given below of the Lecture.of M. Ch. de. Visscher to the Academy

of International Law which deals with this question as a whole:

" T h e claim directly challenges the responsibility of the British Government. The Finnish shipowners had, In accordance with British legislation, brought their claim before a special tribunal (Admiralty Transport Arbitration Board). They had obtained the .diplomatic support of their Government after the case had been dismissed by this tribunal. The offer of arbitration was declined by the British Government and the dispute was then brought before the Council of the League of Nations (July, 1931). The British Government there raised the objection of the failure to exhaust domestic remedies. It should be ob-served that the Finnish shipowners had failed to lodge an appeal within the prescribed period against the decision of the Admiralty Tribunal. The Finnish Government replied to this objection that such an appeal could be considered as being, a priori, ineffective as a judgement had been pro-nounced on the facts and the appeal tribunal could only -.consider points-of law. The parties could'not be com-

pelled to undertake an appeal which was shown, a priori, to be Ineffective. This preliminary question as to the exhaustion of local remedies was submitted to arbitration by M. Algot Bagge, Judge of the Supreme Court of Sweden. The judgement of the Arbitrator was substantially in favour of the Finnish argument. Its chief interest lies in an extremely profound study of the conditions of application of the rule of exhaustion of domestic remedies. The Arbitrator admitted that from a formal point of view a possibility existed for the claimants to lodge an appeal, but that the point of law which would have been the basis of the appeal would in no way have been capable of changing the judgement pronounced by the tribunal of the first instance. This remedy, although formally open to the parties, could not be of practical assistance to them. The Arbitrator emphasised, as did the Finnish Government, that no claim of a denial of justice had been expressed either against the British legislation or against the British tribunals; the complainants had declined to exhaust a remedy theoretically open to them not because there had been a denial of justice, but simply because one could not consider as a means of redress a tribunal which was incapable of changing the judgement pronounced, nor could an appeal which clearly could not provide any remedy be considered as a "local redress"." (See Recueil des Cours, 1935, tome II, pp. 48-49.):

As far as concerns the non-application of this rule in the

case of "denial of justice", there are considerable arbitration

authorities (in particular the Fabiani, Chattin, Mertini, Salem

Cases) as well as the work of the Institute of International n

Law (see 1954 Yearbook, Aix Conference, pp. 7 - 1 H ) a large

bibliography, (a note of which is attached hereto)which makes

further consideration here unnecessary.

Denial of justice .can be "resulting either from a lacuna

in the judicial organisation or from the refusal of administrative

or extraordinary methods of redress". (Morocco Phosphates Case,

P.C.I.J., Series A/B, No. 74, p. 28; see also the Lotus Case,

P.C.I.J., Series A, No. 10, p. 24; Anglo-Iranian Oil Company

Case, I.C.J., 1951 Report, pp. 92-93).

It is possible that, without there being a "denial of

justice" in the strictly legal sense, there might be a proce-

dure which unreasonably delayed the outcome of the case.

Where exhaustion of remedies is carried out in accordance with

the local law, such law should not require a series of pro-

ceedings- which prevent the complainant from arriving at the_

final tribunal without a very considerable lapse of time.

It was for this reason that the preliminary draft of the

Convention made by the European Movement provided that domestic

remedies should be exhausted "provided that they operated with-

out excessive delay".

The Committee of Experts considered that: "it would be

necessary to take into account the jurisprudence established

in this respect according to which cases where national tri-

bunals improperly delay their taking decisions are considered

as an exhaustion of legal remedies". (Doc. CM/WP I (50) 6 and

15)

The General Act of Geneva and the Draft of the European

Convention for the Peaceful Settlement of. Disputes provided

that final decisions made by the competent authorities should

take place "within a reasonable period".

It should moreover be observed that this obligation is

expressly mentioned in Article 6 of the Convention: "...everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law " (See also Article 5, paras . 3 and 4).

Certain cases are described in this Article where the rule

of exhaustion does .not apply: if the tribunal is not indepen-

dent, if it is not impartial or if the case is not decided

within a reasonable period.

3. This rule Is not applied in a strict or absolute manner;

it can be modified as a result of particular circumstances

and should be Interpreted In a reasonable manner.

Several decisions on jurisprudence agree that the rule

does not necessarily require the preliminary employment of all

means provided for by the local law, but simply the normal em-

ployment of such means (see, in particular, the Case of the

Eliza against Peru and the United States, 28th November, 1863,

Lapradelle-Politis, 11, 271 et seq.; the Salem Case between

the United States and Egypt, 8th June, 1932, Department of

State Arbitration, Series No. 4 (b)).

In this connection the Swiss Government stated as follows

in the Losinger & Co. Case: "The Swiss Government did not fail to recognise the prin-

ciple of international law according to which in general the local legal remedies of a State should be exhausted before a foreigner could, by means of his national govern-ment, apply to an international :j.udge for the redress of an injustice or the remedy of a wrong suffered by him. It considered, however, that this principle has not an absolute character and that it . should... be...modified, in the case where it would lead to an obvious injustice." (Comments and con-clusions of. the Swiss Government, 14th April, 1936, PubII- -cations of the Court, Series C, No. 78, p. 156) . /Not official.-text J/

This point was emphasised by the German Government during the preparatory work, of - The - Hague Conference for the Codifica-tion of International Law".

"The preliminary exhaustion of remedies cannot be relied upon when, for particular reasons, It would not be possible to require the State concerned to await the final judgement This might occur, for example, because there is the danger of new damage, or because, for example, in the case of the infringement of the provisions contained in the contract, there is a danger of a repetition of the act complained of. In such cases it is proper to recognise that the State in-jured in the person of Its national has the right to esta-* blish its allegation as soon as possible." (See L. of N», Doc. C 75, M. 69, 1929, p. 136). /Not official text.J

_ _ DH (55) 11

II. CONCERNINGTHE PERIOD OF SIX MONTHS. :.. .

Article 26 provides that the Commission may only deal with a matter after all domestic remedies had been exhausted and then adds: "Within a period of six months from the date on which the final decision was taken."

This is the second condition as to the admissibility of applications.

In the report to the Committee of Ministers submitted by

the Conference of Senior Officials there is the following text:

"At the end of this Article the Conference added the w o r d s : ' a n d within a period of ...six ..months...-frora.~th©...4ate on which the final decision was taken'. The Conference con-sidered, it useful to fix a time' limit during which re-course to the Commission should be formulated, in accordance with the provision to this effect in Article 31, para. 2 of the General Act of Geneva." (Doc. CM/WP 4 (50) 19 revised.) An objection might.be made that the period is toe short

(the General Act fixes it at one 'year; the Legal Committee of

the Assembly proposes, ..in the case of the European Convention

for the Peaceful Settlement of Disputes, that the period should

be two years), but no-one could deny Its usefulness. As the

Convention has as its purpose the guarantee of the exercise of

certain fundamental civil and political human-.rights:, -the-inter-

na ticnal tribunal, having been considerably delayed by the

exhaustion of the domestic remedies, should hear the'alleged

violations of these rights within the shortest possible time.

Concerning the principle

The terms of Article 26 are clear: the Commission may

only deal with a case "within a period" of six months from the

date on which the final local decision was taken. It may not

deal with a matter either before the exhaustion of the local

remedies or after the expiry of the period of six months.

The failure to observe-the period laid down by the Con-

vention will accordingly have the same legal consequence as

the failure to observe the period laid down by the rules of

procedure under municipal law. It is not a question of the

prescription of an action but of a lapse or of an estoppel of

the right to bring a case before the International tribunal

provided for by our Convention.

With regard to the provisions of Article 62 of the Con-

vention, this distinction could possibly be of interest if a

Party to the Convention, which exercises the right to protect

its nationals, decides to bring a case not before the tribunal

provided for by our Convention but before the International

Court of Justice, after it has allowed the period of six months

"from the date on which the final decision was taken" to elapse.

Concerning the rule

The following conclusions can be drawn from the second rule mentioned in Article 26 in respect to the time-limit: 1. The non-observation of the time-limit involves the. in-admissibility of the claim.

That is the expression which is used by Article 27, para.

3, which states as follows: "the Commission shall reject any

petition referred to it which it considers inadmissible under

Article 26."

2. In the same manner as for the exhaustion of domestic remedies

and for the same reasons, the period of six months should apply

as much for the claims of Contracting Parties (Article 24) as

for the claims of individuals (Article 25) before the Commission.

3. Although Article 26 lays down the period of six months^

"from the date on which the final decision was taken" and there-

by connects the two conditions as to admissibility, it might be

that the second condition should be applied independently of

the first.

In cases, therefore, where there is an exception to the

rule of exhaustion of domestic remedies, i.e., in the absence

of a final local decision, the question arises whether the

obligation to introduce the application within six months remains.

The answer should apparently be in the affirmative. The

application should in such case be submitted, in the absence of

a local judicial decision, within six months from the date of the

alleged breach or of the date on which the fact complained of

occurred.

Where exhaustion of remedies is not required, the word

"decision" could be interpreted,as .being a wider term than

"judicial decision". It would mean, therefore, any decision

taken by any authority whatsoever, and constituting a breach of'

the Convention.

4. Where a legal decision Is concerned-, It Is necessary • to refer

to the local law in order to determine the date on which such

decision, became .."final" . It is here a question of fact to be

examined in each given case: to see whether the decision

became final on .the date of its "pronouncement" or on the date

of its notification or on some other date laid down by the

local law.

5• As in the case of the exhaustion of remedies, it is for •

the complainant party to submit proof as to the time-limit.

•• 6•. In regard to a mandatory condition imposed by the Con-

vention, the Commission is obliged automatically to examine

whether such condition has been fulfilled.

7. The time-limit of six months is an exact time-liitiit. Time-

limits extended by reason of distant communications should in

principle be provided for and laid down in a legal provision.

The Convention is silent on this point and it could not therefore

be accepted that such time-limits could be added to the time-

limit laid down by the Convention. This rule, however, should

apparently be applied according to the principles of general

•.law;., no verdict of lapse, should be pronounced if, by reason of

particular ..circumstances., .it .has.-been impossible for a party to

take action within the time-limits laid down.

8. A separate study has been made by the secretariat of the Com-

mission concerning the problem of the application of the six

months period in relation to individual applications lodged with

the General Secretariat at different dates (See Doc. DH (55) 10).

A P P E N D I X

Principal works concerning the exhaustion of domestic remedies.

AGO, (R.)

BORCHARD, (E.M. ).

CARABIBER •

DURAND, (C.H.)

EAGLETON, (C.)

E US T AT HIA DE S

FACHIRI

La regola del parvio esaurimento del ricorsi intern!, in t Archivio di Diritto publico, Vol. Ill fasc. 3. Basic elements of diplomatic protection of citizens abroad, in : American Journal of International Law, 1913, p. 1+97 et s. Les principes de la -orotecti-on diplomatique des nationaux à l'étranger, in : Bibliotheca Visseriana, III, p. 1 et s. in : l'Annuaire de l'Institut du Droit inter national, 1931s II* P» k2-k et s» The local remedies rule, in t American Journal of International Law, 193Û, p. 729 et s. Les- juridictions internationales de droit interne, 191+7, p. 132 et s. La.responsabilité internationale des Etats pour déni de justice,. in : Revue générale de droit international public, 1931, p. 698 et s. Denial of Justice in International. Law, in : American Journal of International Law, 1928, p. 538 et s. L'épuisement -de»s recours' internes et le déni de justice, in : Revue de droit international et de législation comparée, 1935? P» 50l+ et s. La responsabilité internationale de l'Etat pour les actes des organes judiciaires et le problème du déni de justice en/ droit International, 193é, II, p. 331 et s. The local remedies rule, in : British Yearbook of International Law, 1936, p. 19 et s.

DH (55) il Appendix I

PITZMAURICE, (G.G.)

PR IE DM ANN, (H.)~

GARNER, (J.W.)

The meaning o in t British 1932, p. 93 e Epuisement, de in : Revue de législation c International judgments of amounting to in : British

f the term "Denial of Justice", Year b o ok " o f " In t e r n a 11 on a 1 Law, t s . s voies.de recours internes, droit international et de omparée, 1933s P» 3l8 e t s» Responsibility of States for Courts arid verdicts 'of Juries Denial of Justice, Yearbook of International Law,

1929. GUGGENHEIM, (P.) Traité de Droit international public,

Tome II, 195U, p. 21 et s. Digest of International Law, 19^3» V, p. 501 6 t s«

Session de Lausanne, rapport STRISOWER

HACKWORTH, (G.H.)

INSTITUT DE DROIT INTERNATIONAL

RESEARCH IN INTERNATIONAL LAW S.D.N.

SAUSER-HALLj (G. )

a, sur la responsabilité internationale des Etats à raison des dommages causés s.ur leur territoire, à la personne ou aux biens des étrangers, cf. Annuaire, 1927, 1, P-U55 et £ b) Session de Cambridge, rapport BORCHARD sur la protection, des nationaux à l'étran-ger, cf. Annuaire, 1931*1* P» 257« c) Session d ' AIx-en-Proven.ce , rapport VERZIJL sur la règle de l'épuisement des recours internes, cf. Annuaire, ;195̂ -* p. 5 à 111. Harvard Làw School, Draft of Conventions, Cambridge, Mass., 1929.

Conférence for the Codification of Inter-natioanl Law, Bases of discussion,'Vol. III3 (Doc. c. 7 5 , M . 69,. 1929,,V,,III). Documents of the Conférence for the Codi-fication of International Law. The Hague, 1930, (Doc. C. 351 (c) , M. I45 (c), 130V). Minutes of the Third Committee. Exposé devant la Cour Permanente de Justice Internationale dans l'affaire "Losinger" c/ Etat yougoslave, C.P.J.I., Série C, N 78, 15é et

DH (55) il Appendix I

STRÏÏPP TENEKIDES,

(G.G.)

DE VISSCHER, Charles

il

WITENBERG

Das völkerrechtliche Delikt, 1920. L'épuisement des voies de.recours internes comme condition, préalable de l'instance inter nationale, in : Revue de droit international et de legis latîon comparée, 1933» P» 5lU- e t s-La responsabilité des Etats, in : Bibliotheca Visseriana, II, p. o9 et s. Le déni de justice en droit International, in : Recueil des Cours, 1935, H , P • 3^9 et s La recevabilité des réclamations devant les juridictions Internationales, in : Recueil des Cours, 1932, III, p. 5 et s.