CYIL 2012

ADMISSIBILITY CRITERIA FOR LODGING AN APPLICATION WITH THE ECHR… considered liable for the infringement if it occurred in territory effectively controlled by it ( Cyprus v. Turkey 29 ). 3. – Incompatibility ratione temporis is related to the date of ratification of the Convention or acceptance of the jurisdiction of the Convention institutions. The application will be rejected by the Court if a violation took place before the date of the entry into force of the Convention and Protocols in respect of the State concerned (for instance, see Šilih v. Slovenia 30 ). It is important to mention that the theory of the Convention law includes a term “continuing violation”! This is a breach which originated before the entry into force of the Convention and persists after that date. For example, it covers the continued impossibility for the applicant to regain possession of property in the case of Hutten-Czapska v. Poland. 31 4. – Incompatibility ratione materiae. According to Article 32 of the Convention, the jurisdiction of the Court extends only to matters concerning the interpretation and application of the Convention and the Protocols thereto. This means that a right that lies outside of this scope is not protected by the European Convention and the Court has no jurisdiction to examine these submissions. The Convention, inter alia , does not guarantee a right to asylum ( Chahal v. the United Kingdom 32 ), a right to work ( Chen v. the Netherlands 33 ), or a right to divorce ( Johnston and Others v. Ireland 34 ). 6. Non-exhaustion of all domestic remedies In accordance with the generally recognised rules of international law an applicant must have used all the remedies in the State concerned that might have been able to redress the situation the applicant is complaining about. Usually this will mean that a person should file an application to the appropriate court followed by an appeal, where applicable, and a further appeal to a higher court such as the Supreme Court. In some countries such as the Czech Republic, for example, the role of the highest court is fulfilled by a constitutional court. In addition, if the legislation of the State concerned proposes more than one potentially effective remedy then the applicant is only required to have used one of them (for example, see the cases Moreira Barbosa v. Portugal 35 and Karakó v. Hungary 36 ). The practice of the Court establishes that it is not enough merely to make use of these remedies. In so doing, an applicant must also have actually raised his or her complaints before the national courts.

29 Cyprus v. Turkey [GC], no. 25781/94, ECHR 2001-IV. 30 Šilih v. Slovenia [GC], no. 71463/01, 9 April 2009. 31 Hutten-Czapska v. Poland [GC], no. 35014/97, ECHR 2006-VIII. 32 Chahal v. the United Kingdom – Rep. 1996-V, fasc. 22. 33 Chen v. the Netherlands, no. 37075/06. See also Coorplan-Jenni GmbH and Elvir Hascic v. Austria (dec.), no. 10523/02, 24 February 2005.

34 Johnston and Others v. Ireland, 18 December 1986, Series A no. 112. 35 Moreira Barbosa v. Portugal (dec.), no. 65681/01, ECHR 2004-V. 36 Karakó v. Hungary, no. 39311/05, 28 April 2009.

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