PARTLY DISSENTING OPINION OF JUDGE MORENILLA  

(Translation)

With regret, I part company with the majority as regards its conclusion that the Court cannot deal with the merits of the applicant's complaints on account of his failure to exhaust domestic remedies. I refer once more to my dissenting opinion annexed to the Cardot v. France judgment of 19 March 1991 (Series A no. 200, p. 23), which the majority cite in paragraph 30 in fine, where I set out my reasons for opposing a fresh examination by the Court of a plea of inadmissibility that had already been submitted to the Commission and dismissed in the Commission's decision on the admissibility of the application in accordance with Article 27 para . 3 of the Convention (art. 27-3) (paragraph 29 of the judgment).

I consider too that in the present case Mr Ahmet Sadik invoked his right to freedom of expression in substance in the Greek criminal courts on account of the very nature of the offence of disturbing the public peace that he was accused of and for which he was sentenced to eighteen months' imprisonment, in particular for contravening Article 192 of the Criminal Code through the communiqués he had published during the elections as a candidate of the Güven political party representing part of the Muslim population of Western Thrace.

In these accusations and in his conviction the question of the freedom of expression of the candidates for election to the Greek Parliament, even if it was not expressly raised, constituted the substance of the impugned criminal offences and the proceedings brought in the Greek criminal courts which were capable of remedying the applicant's complaints. Article 27 of the Convention (art. 27) requires a flexible interpretation without excessive regard for matters of form (see the Guzzardi v. Italy judgment of 6 November 1980, Series A no. 39, p. 26, para . 72), a "pro victima " approach in favour of admissibility in order to allow the Convention institutions to consider the alleged complaints.

[1] The case is numbered 46/1995/552/638. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[2] Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol (P9). They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[3] For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1996-V), but a copy of the Commission's report is obtainable from the registry.

[4] See paragraph 4.2 of my dissenting opinion in the case of Brozicek v. Italy of 19 December 1989 (Series A no. 167, pp. 23 et seq.). My opposition to this doctrine - which has gradually won some support within the Court - was spurned in the Court's judgment of 25 March 1992 in the case of B. v. France (Series A no. 232-C). The present case has again confirmed my conviction that the doctrine is essentially wrong.

[5] See Jost Delbrück in: Jekewitz et al., Des Menschen Recht zwischen Freiheit und Verantwortung (Festschrift Josef Partsch ), pp. 225 et seq..

[6] See his dissenting opinion in the case of Cardot v. France (judgment of 19 March 1991, Series A no. 200, p. 24).

[7] See the contribution of Delbrück referred to in note 2; see also Gurdip Singh in E.S. Venkataramiah (Editor), Human Rights in the Changing World (1988), p. 261.

[8] See paragraph 50 of its judgment of 18 June 1971 (Series A no. 12, p. 29) where it said that "the rule of exhaustion of domestic remedies delimits the area within which the Contracting States have agreed to answer for wrongs alleged against them before the organs of the Convention" and added that "the Court has to ensure the observance of the provisions relating thereto just as of the individual rights and freedoms guaranteed by the Convention and its Protocols", thereby suggesting that the defence plea was as important to States as fundamental rights to citizens. In paragraph 3.4 of my dissenting opinion referred to in note 1 I have already critically commented on this passage.

[9] See the Cardot v. France judgment of 19 March 1991, Series A no. 200, p. 18, para . 34, in combination with its Van Oosterwijck v. Belgium judgment of 6 November 1980, p. 19, para . 39. The Commission takes the same view: see its case-law as summarised by Amerasinghe , Local Remedies in International Law (Grotius Publications Limited, Cambridge, 1990), p. 178. However, when the national court has considered the case ex officio, the Commission takes the view that the requirements of the rule are met (see its decision of 10 May 1979, application no. 8130/78, Decisions and Reports 16, p. 120).

[10] See paragraph 33 of the Court's judgment.

[11] Nor did I find such reasons in the sparse observations of learned authors. Flauss , who in RUDH 1991, pp. 529 et seq., has written a paper "La condition de l'épuisement des griefs au sens de l'article 26 CEDH: les enseignements de l'arrêt Cardot " (art. 26), merely contends that the interpretation of the rule should not be too favourable to individuals, but utterly fails to explain why an interpretation which prevents a (possible) victim of a violation of fundamental rights being denied justice on no other ground than that he or she is also a victim of his or her domestic counsel's incompetence, is too favourable to the individual. I would rather say that it is too favourable to the State! Florence Benoit-Rohmer in a note ( Dalloz 1993, Jur . 563) on the Court's De Geouffre de la Pradelle v. France judgment of 16 December 1992 merely claims that another interpretation than that of the Court " aboutirait à vider de sa signification cette condition essentielle de recevabilité ".

[12] Series A no. 200, p. 22, para . 2.

[13] See, for example, Flauss in his article referred to in note 8, RUDH 1991, pp. 535 et seq.

[14] See W.J. Ganshof van der Meersch , Organisations européennes I (Editions Sirey , Paris, 1966), pp. 374-75.

[15] See instead of all other possible references the Court's Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, pp. 25-26, para . 55.

[16] See also paragraph 75 of that judgment, where the Court even described the Convention as "a constitutional instrument of European public order ( ordre public)".

[17] See its judgment of 14 December 1995 in the joint cases C-430/93 and C-431/93, ECR 1995-I, pp. 4705 et seq.

[18] See paragraph 31 of the Court's judgment. See also: Alkema , Bellekom , Drzemczewski and Schokkenbroek (Editors), The Domestic Implementation of the European Convention on Human Rights in Eastern and Western Europe, Proceedings of the seminar held in Leiden , 24-26 October 1991, pp. 26 et seq.

[19] See paragraph 17 of the Court's judgment.

[20] See paragraphs 10 and 15 of the Court's judgment. The Patras Court of Appeal held, inter alia, that "the accused deliberately sought to instil and implant (...) the seeds of discord, hatred and hostility towards the Christian Greeks who lived in the same region".

[21] In its report referred to in paragraph 4 of the Court's judgment Helsinki Watch suggests that the incidents were rather the work of the majority!