As a rule, for a person accused of a crime or a 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 to the ECtHR or the Constitutional Court (AYM), the proceedings must have ended and the decision rendered as a result of the proceedings must have become final. If the proceedings are still ongoing, the individual’s application as a victim will not be accepted.
The fundamental rationale behind the requirement that a decision must have been rendered on the merits of the dispute is to grant the national state the opportunity to remedy the violation in question. This is because the ECtHR, when examining whether Article 6 has been violated, considers the proceedings as a whole at the national legal level. Indeed, there is always a possibility that an issue overlooked at a certain stage of the proceedings can be remedied at later stages.
The requirement that the proceedings must have concluded encompasses three exceptions.
The first exception is a complaint regarding the violation of the right to be tried within a reasonable time. A person claiming that the right to be tried within a reasonable time has been violated can file an individual application with the ECtHR or the Constitutional Court (AYM) without waiting for the case to conclude with a final decision. This is because there is an ongoing violation. Furthermore, for complaints concerning ongoing excessive length of proceedings, the ECtHR does not require the exhaustion of domestic remedies on the date of the application. (Neumeister/Austria, 1968, pr.17-20) The existence of such an exception is primarily related to the fact that a violation of the right to be tried within a reasonable time is not dependent on the type or nature of the final decision. Even if the final decision is in favor of the party complaining about the excessive length, it will not prevent the violation of this right. Moreover, the state cannot escape responsibility by claiming that the outcome would not have changed even if the case, subject to excessive length, had been concluded within a normal timeframe. The defense that the same decision would have been rendered in the case cannot be accepted as a valid justification for the state. (H./United Kingdom, 1987, pr.81)
The second exception is a complaint regarding the violation of the right of access to a court. The violation of the right of access to a court essentially involves the prevention of proceedings. Naturally, proceedings that have not yet commenced will not be able to conclude.
The third exception concerns complaints about the violation of the presumption of innocence. In complaints of presumption of innocence violation, a decision on the merits of the dispute is not a mandatory element.
