CYIL vol. 11 (2020)

CYIL 11 (2020)

CONVENTION IN THE TIMES OF COVID-19: WHO IS THE MASTER…

Many questions, no answers Turning back to the cited press releases, let’s have a closer look at the decision to prolong time limits. Unlike the other measures which rather relate to the internal administration of the Court, the time limit for lodging of an application is enshrined directly in the Convention for the Protection of Human Rights and Fundamental Freedoms (see Article 35 para 1). Therefore, it might be acceptable to inform the public by a simple press release about the fact that certain hearings were postponed or that inadmissibility decisions will not be notified for a certain period. However, the alteration of the time limit for lodging of the application requires a different form and an in-depth explanation of who, why and on what basis has taken such decision. The press releases remain, even after two months since the original measures were adopted, the only official source, informing about the measures, that has been published by the Court. This is in itself enormously problematic. The press release is not a binding document. As explicitly stated at the end of every single one of them, “press release is a document produced by the Registry. It does not bind the Court.” Having regard to the fact that no official decision regarding the alteration of the time limit has been published, it is to be stressed out that applicants do not have any official binding document containing any information about prolongation of time limits they could rely on. It is hence risky to follow the newly announced time limit. Not only the press release does not bind the Court and the applicants are thus left in the situation of legal uncertainty. Moreover, the published documents do not give any answers to the crucial questions that arose. Who had taken the decision to prolong the time limit? The first press release states that it was “the European Court of Human Rights”. The later ones do not in any way clarify the situation. But who exactly is the Court? Have the measures been adopted in a plenary session, by the President of the Court, by the Registrar or one of the decision- making formations? Has it been adopted unanimously or by how many votes? The Rules of the Court define the Court as “either the plenary Court, the Grand Chamber, a Section, a Chamber, a Committee, a single judge or the panel of five judges”. Such a definition does not cast much light on who has taken the decision to prolong the time limit; it may only exclude the Registrar as the potential decision-maker. Even more problematic is the question of the legal basis for the time limit? From what legal document has the authority to do so been inferred? Another problematic aspect is the period for which the measures were in force. According to the first press release, the time limits were to be suspended for one month. Although the existence of the sunset clause (limitation of the extraordinary measures adopted) is certainly important, the “European Court of Human Rights” (whoever it was) put itself in a difficult position. Regardless of the problematic legal basis for such a step, it must have been a difficult decision to adopt a measure with expectedly an important impact on many proceedings. Yet the decision to either end or prolong the suspension of the time limits must have been even a harder one. As stated above, the period has further been prolonged to three months on the total. Despite the number of questions such decision raises, the Court again decided not to justify such step at all. What were the criteria for the prolongation of the suspension of the time limits? Did the Court take into consideration the number of States within the Council of Europe which had prolonged or had ended the states of emergency previously declared? How did it take into account the fact that the situation in some States had improved significantly whereas in other States had remained alarming? Or was it concerned predominantly by the situation in the host state? Does the Court have a clear standpoint on how to respond to

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