Is it a condition for an alleged violation of the right to a fair trial to be brought through an individual application that the trial must have concluded? Are there any exceptions? For a complaint regarding a violation of the right to a fair trial to be brought through an individual application, the trial must have concluded. However, complaints concerning the “right to be tried within a reasonable time”, the “right of access to a court”, and the “presumption of innocence” constitute the three exceptions to this condition.

For an individual application to be made due to a violation of the right to a fair trial, the case must have concluded. However, the “right to be tried within a reasonable time“, the “right of access to a court“, and the “presumption of innocence” constitute the three exceptions to this rule.

As a rule, for a person accused of a crime or party to a dispute concerning civil rights and obligations to benefit from the protection of Article 6 of the Convention, which regulates the right to a fair trial, through an individual application before the ECHR or the Constitutional Court, their trial must have concluded and the decision rendered as a result of the trial must have become final. If the trial is ongoing, the individual’s application as a victim will not be accepted.

 The fundamental rationale behind the requirement that the merits of the dispute have been decided is to grant the national state the opportunity to remedy the infringement in question. Because the ECtHR, when examining whether Article 6 has been violated, considers the entirety of the proceedings at the national legal level. For it is always possible that an issue overlooked at a certain stage of the proceedings may be remedied in subsequent stages.

The requirement that the proceedings must have ended contains three exceptions.

The first exception is a complaint concerning the violation of the right to a trial within a reasonable time. A person claiming a violation of the right to a trial within a reasonable time may apply individually to the ECtHR or the Constitutional Court without waiting for the final decision in the case. Because there is an ongoing violation here. Furthermore, for ongoing complaints regarding exceeding a reasonable time, the ECtHR does not require domestic remedies to have been exhausted at the date of the application. (Neumeister/Austria, 1968, pr.17-20) The existence of such an exception is primarily related to the fact that the violation of the right to a trial within a reasonable time is not connected with the type and nature of the final decision. For even if the final decision is in favour of the party complaining about the reasonable time, it will not prevent the violation of this right. Indeed, the state will not be able to escape responsibility by arguing that the outcome would not have changed even if the case concerning the excessive duration had been concluded within the normal timeframe. The defence that the same decision would have been rendered in the case cannot be considered a legitimate justification from the state’s perspective. (H./United Kingdom, 1987, pr.81)

Second exception is a complaint regarding the violation of the right to access a court. Because the violation of the right to access a court inherently involves preventing a judicial process. Naturally, a trial that has not yet begun cannot possibly be concluded.

The third exception relates to a complaint concerning the violation of the presumption of innocence. In complaints regarding the violation of the presumption of innocence, a decision on the merits of the dispute is not a mandatory element. A book recommendation.

Why is Expert Lawyer Support Necessary for Individual Application?

Why is Expert Lawyer Support Necessary for Individual Application?

Individual application is a highly technical application method from the perspective of both the Constitutional Court (AYM) and the European Court of Human Rights (ECtHR). It is not sufficient to merely claim a violation of rights; it must be demonstrated in detail from which specific event this violation arose, with which constitutional or conventional guarantee it is connected, and how domestic legal remedies have been exhausted in this regard.

The admissibility stage of applications, in particular, is the most critical point of an individual application. Courts first examine whether the application was filed within the time limit, whether all necessary documents were submitted completely, whether the applicant has victim status, and whether the alleged violation truly falls within the scope of an individual application. The smallest mistake made at this stage will lead to the rejection of the application without even entering into the merits of the violation.

Some of the problems frequently encountered in individual applications are as follows:

Incorrect calculation of deadlines: In applications to the Constitutional Court (AYM), an application must be made within 30 days from the date the decision becomes final. If this period is calculated incorrectly, the right is forfeited.

Reliance on the wrong right: Applications may be rejected if rights such as the right to a fair trial, the right to property, or the right to privacy are not correctly associated.

Incomplete submission of evidence and documents: Especially court decisions and related documents must be fully and properly added to the file.

Inability to establish the connection of the violation with the concrete case: Applications in the nature of general complaints are not accepted; the violation must be presented in a concrete and convincing manner.

For these reasons, seeking expert legal assistance during the preparation of an individual application becomes a necessity to prevent the loss of rights. An experienced lawyer in the field will both ensure the application’s compliance with admissibility criteria and contribute to effectively presenting the violation. Thus, the applicant’s chances of having the violation they actually experienced examined and remedied by the Constitutional Court or the ECHR will increase.