CONCURRING OPINION OF JUDGE MARTENS

1. I have voted in favour of rejecting the Austrian Government ’ s preliminary objection because it was examined and rejected by the Commission: for the reasons given in my separate opinion in the Brozicek case (Series A no. 167, pp. 23 et seq.) I think that the Court should leave it to the Commission to determine whether such pleas are founded or not.

2. In the present case t he Court has for the first time [*] extended the doctrine that I question to a preliminary objection based on an alleged failure to observe the time-limit specified in Article 26 (art. 26). It seems to me that the reasons given in my afore-mentioned opinion are all the more cogent when it comes to extending that doctrine, and especially extending it to the present type of preliminary objection, and should have led the Court to refrain from doing so. In this connection I would make the following three points.

Firstly, assuming jurisdiction to examine the present preliminary objection should lead to consideration of the question whether Rule 44 para. 4 (present numbering) of the Commission ’ s Rules of Procedure - as applied in the Commission ’ s case-law over more than three decades - is the best way of supplementing the last words of Article 26 (art. 26) of the Convention. There is, however, no reason for the Court to do this as there are no complaints that either the Rule or its application by the Commission are unsatisfactory. This is well illustrated by the fact that this is the first time after all these years that a Government reiterates before the C ourt an objection of this kind [*]  !

Secondly, reviewing whether the Commission has correctly applied its rules to the case at hand necessarily draws the Court into pure questions of fact which, under the Convention system, should be left to the Commission.

Lastly, differences of opinion between the Commission and the Court as to questions of that kind could lead to a result that I would find completely unacceptable: imagine, for example, an applicant who, after fighting his case strenuously before the Commission and then before the Court for five or six years, is told that all his efforts have been in vain because in the Court ’ s opinion his application was made a day too late!

CONCURRING OPINION OF JUDGE MORENILLA

In this case the Court has decided to reject the Government ’ s preliminary objection as to the admissibility of Mr Oberschlick ’ s application. This conclusion does not, however, reflect a certain disparity in the reasoning. Like Judge Martens, I have voted in favour of rejecting the objection starting from the premise that the decision of the Commission should be respected for the reasons expressed in my dissenting opinion in the Cardot case (judgment of 19 March 1991, Series A no. 200) in which I subscribed entirely to the analysis and conclusions of Judge Martens [in his separate opinion] in the Brozicek case (Series A no. 167, p. 23 et seq.).

As I said on that occasion, the role of this Court is not to act as a Court of Appeal from the Commission, examining the case-files to check if an application was correctly admitted. In the allocation of roles under the Convention, the two organs set up to ensure the observance of the engagements undertaken by States ’ Parties (Article 19) (art. 19) have each different functions with clear-cut boundaries to avoid any overlapping. The main province of the Commission is to decide on the admissibility of petitions, according to Article 27 (art. 27) of the Convention, while the jurisdiction of the Court "shall extend to all cases concerning the interpretation and application of the present Convention" as provided for in Articles 45 and 46 (art. 45, art. 46) of the Convention.

The preliminary objection raised by the Government in this case is a paradigm of the undesired consequences of the appeal jurisdiction assumed by this Court in questions of admissibility following the De Wilde, Ooms and Versyp judgment of 18 June 1971 (Series A no. 12, pp. 29-31, paras . 49-55): the Government ’ s preliminary objection is based on a mere question of fact - the date of the introduction of the application before the Commission - and, as such, it should be decided by this organ on the basis of its undisputed practice and in accordance with Articles 27 para. 3, 28 and 31 (art. 27-3, art. 28, art. 31) of the Convention, and in the light of Rule 44 para. 3 of its own Rules of Procedure which confers on the Commission a margin of appreciation in deciding on the date of introduction of the first communication from the applicant setting out the object of the application.

Moreover the re-examination of this question by the Court involves not only a fresh assessment of the basis for the Commission ’ s decision in this matter but it also amounts to questioning the practice of the Commission based on its own experience, as well as the compatibility with the Convention of Rule 44 para. 3 of the Commission ’ s Rules of Procedure.

The fact that in the present case the Court and the Commission have shared the same views with regard to the time-limit objection does not exclude:

(1) the applicant ’ s uncertainty as to the outcome, since after winning his case before the Commission he may, with good reason, fear that at the end of a long procedure the Court may not decide on the merits of his complaint;

(2) the possibility of two contradictory decisions that may endanger public confidence in the Convention system ’ s ability to protect the rights of the individual; and

(3) a time-consuming activity of the Court with no real effect on the protection of individual rights because either - as in this case - the Court confirms the Commission ’ s finding and proceeds to examine the merits of the case or it quashes the decision and declares itself unable to take cognisance of the applicant ’ s complaints.

In my view, having regard to the uniqueness of the preliminary objection in the present case, the Court has missed an opportunity to reconsider its established case-law on the examination of admissibility objections and to leave all matters of admissibility entirely to the Commission thereby respecting its "final" decision on such questions.

[*]  The case is numbered 6/1990/197/257.  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.

[*]   The amendments to the Rules of Court which entered into force on 1 April 1989 are applicable to this case.

[*]  Note by the Registrar: as amended by Article 11 of Protocol No. 8 (P8-11), which came into force on 1 January 1990 .

[*]  Note by the Registrar.  For practical reasons this annex will appear only with the printed version of the judgment (volume 204 of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.

[*]  See, however, note 2.

[*]   In the "Vagrancy cases" an objection based on non-observance of the time-limit had been raised by the Government for the first time at the oral hearings before the Court; the Court therefore held that the Government was estopped (see the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 11, pp. 32-33, para. 58).