PART 2: How to Bring a Case to the Court
or rather not ‘incompatible’, with the Convention ratione temporis, ratione loci, ratione
materie, and ratione persone; 3) that he or she has exhausted domestic remedies;
4) that the complaint complies with the rule that it must be submitted within
six month (or four months, after the entry into force of Protocol No. 15 to the
Convention) after the final domestic decision; 5) that the complaints are sufficiently “substantiated” on their face to disclose a violation of the Convention; 6)
that the damage suffered is substantial; (7) that the applicant suffered a substantial
disadvantage and finally that the application is not 8) ‘abusive’; 9) ‘anonymous’; or
10) ‘substantially the same’ as one which has been or is being considered by another
international procedure of investigation or settlement. Virtually all of these criteria
have been interpreted extensively by the Court and some of them have important
exceptions. Some of these exceptions apply specifically in the context of violations of Articles 2 and 3. The admissibility requirements are discussed below in
sections 2.2.2–2.2.8
The Court, through its rules of admissibility, imposes a very high standard of diligence on applicants wishing to have their “day in court” in Strasbourg. However,
it is important to note that the obligation of due diligence starts well before proceedings commence in Strasbourg. In fact, as will be seen in this section, due diligence needs to be exercised from the very beginning of the case in the national
system if it is to have a chance of succeeding before the Court: an applicant who
has not presented properly documented complaints to the appropriate domestic
authorities on a timely basis and in compliance with domestic rules of procedure
will have a difficult time convincing the Court that his or her application merits
consideration. To be sure, the principle of subsidiarity,321 which stipulates “that the
High Contracting Parties […] have the primary responsibility to secure the rights
and freedoms defined in this Convention,”322 requires that Contracting Parties be
given a proper opportunity to redress complaints through their own domestic
system before being held to account internationally.
321 See Dinah Shelton, “Subsidiarity and Human Rights Law”, in Human Rights Law Journal, vol. 27, 2006,
p. 5; Mark Villiger, “The Principle of Subsidiarity in the European Convention on Human Rights”,
in Marcelo G. Kohen (ed.), Promoting Justice, Human Rights and Conflict Resolution through International
Law; Liber Amicorum Lucius Caflisch, Brill, 2007, p. 623; Herbert Petzold, “The Convention and the
Principle of Subsidiarity”, in Ronald St. J. MacDonald, Franz Matscher and Herbert Petzold (eds.),
The European System for the Protection of Human Rights, Kluwer, 1993, pp. 41–62.
322 Protocol No. 15 amending the Convention on the Protection of Human Rights and Fundamental
Freedoms, ETS No. 213, 24 June 2013, Article 1 amending the Preamble to the Convention. See also
Scordino v. Italy, (No. 1) [GC], no. 36813/97, 26 March 2006, § 140.
105
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents