The age of subsidiarity? The ECtHR’s approach to the admissibility requirement that applicants raise their Convention complaint before domestic courts

Abstract

The Copenhagen Declaration (2018) welcomed European Court of Human Rights (Court) ‘continued strict and consistent’ application of the admissibility criteria, ‘including by requiring applicants to be more diligent in raising their Convention complaints domestically’ when exhausting domestic remedies. This article answers the question whether the Court has indeed required applicants to be more diligent in this respect. The answer contributes to a body of academic research studying to what extent and how the Court has developed the subsidiarity principle. Additionally, the answer is of great practical relevance to applicants and their representatives, because they may have to change how they plead their case before the domestic courts with a view to bringing a complaint in Strasbourg. The case-law analysis performed in this article shows that, in some recent rulings, which mainly hailed from the UK, the Court has indeed required applicants to be more diligent in raising their Convention complaints domestically. However, the Court does not maintain this stricter line consistently.