JOINT DISSENTING OPINION OF JUDGES THÓR VILHJÁLMSSON, PETTITI, RUSSO , DE MEYER AND VALTICOS

(Translation)

We consider that the domestic remedies were not exhausted in this case.

The applicant could have appealed against the judgment convicting him delivered in Savona [1] . He did not do so.

He chose to apply to the Commi ssion as early as 7 May 1984 [2] , barely two days after having learnt, on 5 May 1984, of t he existence of the judgment [3] and more than two months before the earliest point at which the period prescribed for filing an appeal could have begun to run, since he did not in fact receive a copy of the judgment until between 10 and 18 July 1984 [4] .

If he was able to set in motion the Convention machinery so quickly, he could equally have taken the necessary steps to institute proceedings in the Italian appeal court in good time.

His conduct is all the more difficult to understand because he has himself a certain amount of legal knowledge, since he was, as he has stated, a Doctor of Laws and former lawyer [5] . It was for him to obtain information and advice concerning the remedies available to him and he had ample time to do so. He had known, since 1976, that criminal proceedings had been instituted against him in Italy [6] and did not have to con tact the Ministry of Justice [7] to obtain such information and advice. Moreover, it appears clearly from the facts of the case that the applicant never gave an address for service and never h ad the intention of so doing [8] . Contrary to the view which the majority s eems to take in this respect [9] , there could therefore be very little doubt as to the admissibility of the appeal.

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As the applicant did not give the respondent State the opportunity to remedy, in its domestic legal system, the violation of his rights, in so far as there was a violation, we consider, for this very reason, that it is not possible to find such a violation.

SEPARATE OPINION OF JUDGE MARTENS

1. The present case is a striking example of the practical consequences of the doctrine which was adopted by the Court in 1971 in its De Wil de, Ooms and Versyp judgment [10] .

In that judgment the Court held that it had jurisdiction to examine preliminary objections as to admissibility, such as one based on non-exhaustion of local remedies, in so far as those objections had first been raised before the Commission. This doc trine has since been refined [11] and regularly applied [12] .

The present case is rather simple as to its merits, but the preliminary objections which the respondent State reiterated before the Court raised difficult questions, both of interpretation of Article 26 (art. 26) of the Convention and of Italian law, and required, moreover, delicate factual assessments. Consequently the Chamber, after deliberations which occupied eleven judges for at least half a day, relinquished jurisdiction in favour of the plenary Court, whereupon twenty judges had to devote some further five hours to deliberations on these questions. This experience made me ask whether, under present conditions, the Court should abide by its aforementioned doctrine or should overrule its De Wil de, Ooms and Versyp judgment [13] .

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2. A court that is considering whether it should overrule its own case-law will have to ponder various aspects of that question. I will mention three. It will, firstly, have to assess whether the arguments invoked for the new ruling are definitely more convincing than those on which its existing case-law was based, for one should overrule only if one is convinced that the new doctrine is clearly the better law. Secondly, there is the policy side of the question to be looked into. Lastly, the court will have to consider how serious a blow overruling would be to legal certainty.

I will make some remarks on each of these aspects.

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3.1 In my opinion the arguments against the Court ' s aforementioned doctrine are definitely more convincing than those on which that doctrine was based.

3.2 The Court has based its doctrine mainly on the broad wording of Articles 45 and 46 (art. 45, art. 46) of the Convention and has inferred therefrom that "once a case is duly referred to it, ... the Court is endowed with full jurisdiction and may thus take cognisance of all questions of fact and of law which may arise in the course of th e consideration of the case" [14] (my italics).

The various dissenters in the De Wilde, Ooms and Versyp case have already shown that this interpretation of the term "cases" ("affaires") in Article 45 (art. 45) is hardly compatible with the wording of Articles 31, 32 and 48 (art. 31, art. 32, art. 48) which rather seems to suggest that the term "case" ("affaire") means - as Judge Bilge put it - "the question whether there has or has not been a violation of the Convention" [15] . As those dissenters did not fail to stress, the economy of the Convention supports this construction of the term "case" ("affaire"): the system of the Convention would appear to be that it is for the Commission (exercising a judicial function) to make a final decision on admissibility and (exercising an advisory function) to express an opinion "as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention" (Article 31) (art. 31), whereupon the question "whether there has been a violation of the Convention" (Article 32) (art. 32) shall be finally decided either by the Committee of Ministers or by the Court. The Court ' s later case-law enhances this argument based on the system of the Convention by admitting that it is the Commission ' s decision on admissibility which "determines the object of the case brought before the Court" and by considerably qualifying its above-quoted ruling on the extent of its jurisdiction by the words "it is only within the framework so traced that the Court ... may take cognisance of all ques tions of fact or of law ..." [16] (my italics). But neither this acknowledgement nor the repeated stressing that the "framework" or "compass" of the case is decisively "delimited by the Commissi on ' s admissibility decision" [17] has induced the Court to abandon the aforementioned doctrine. Yet it would seem clear that this doctrine is hard to reconcile with the delimitative force of the Commission ' s decision on admissibility!

3.3 One can look at this argument based on the system of the Convention from yet another angle. The Court is not to act as a court of appeal from the Commission and has not been empowered to quash its decisions. It does not fit in with this system that (as is possible under the Court ' s doctrine) in one and the same case the Commission should reject the preliminary objection, accept the petition and express the opinion that there has been a violation, while the Court should find that objection well-founded and therefore hold that it is unable to take cognisance of the merits of the case. It is not to be assumed that the Convention makes it possible for a case to end with two contradictory decisions.

3.4 In its De Wilde, Ooms and Versyp judgment the Court also relied especially on the importance of the exhaustion rule which "delimits the area within which the Contracting States have agreed to answer for wrongs alleged against them before t he organs of the Convention" [18] . It even went so far as to suggest that the observance of this rule was as important to States as the observance of the rights and freedoms guaranteed in the Convention was to individuals; it implied thereby that just as the question whether the latter rights had been respected is examined by both the Commission and the Court, so too the question whether local remedies have been exhausted should be examined by both Convention organs.

I cannot accept this equation. In my opinion there is a marked difference in kind between the fundamental rights and freedoms of individuals guaranteed in the Convention and the traditional privilege of States of being dispensed "from answering before an international body for their acts before they have had an opportunity to put matters right thro ugh their own legal system" [19] . The implied argument for a double control is therefore not only totally unconvincing for me, but rather militates against the Court ' s doctrine: that doctrine is apt to create the wrong impression that the rules of Article 26 (art. 26), rules that are mainly procedural devices for sifting purposes, are equal in status and importance to the rights and freedoms under the Convention.

3.5 There is a further - and in my eyes rather weighty - argument against the aforementioned doctrine of the Court: that doctrine creates a disparity between the parties, because when the Commission accepts a preliminary objection as to admissibility based on non-exhaustion of domestic remedies, the applicant (who, ex hypothesi, is a victim of a violation) [20] cannot attack that decision before the Court, but in the reverse case the supposedly wrong-doing State can. Under a convention which stresses that one of the basic principles of fair trial is equality of arms, that seems at least odd.

3.6 To round off I would draw attention to the fact that the aforementioned doctrine of the Court has also been criticised, sometimes rather severely, by quite a number of learned writers [21] . In my opinion this too is an aspect to be taken into account when considering whether or not the Court should overrule its De Wilde, Ooms and Versyp judgment.

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4.1 Coming now to the policy side of the problem, I propose to consider various practical arguments pro and contra the doctrine under discussion.

4.2 The first practical argument that comes to mind is decidedly contra: it is very undesirable that an applicant, who after some years of battling has won his case before the Commission, should find himself, after a further rather long period of stress, denied a judgment on the merits.

4.3 A second practical argument is pro: it will be clear that the main rationale of Article 26 (art. 26) is to provide means for the task of sifting which Article 27 (art. 27) assigns to the Commission; it will also be clear that for the case-load of the Court it is not immaterial how the Commission interprets and applies the rules of Article 26 (art. 26). Therefore, there is a certain interest for the Court in being able to control the Commission in this respect.

It must be noted, however, that this argument is of a purely theoretical character. It is true that in 1971, when the De Wilde, Ooms and Versyp judgment was rendered, the Court may have felt some uncertainty as to whether or not the Commission held the same views as the Court with regard to the interpretation and the application of the principle of prior exhaustion of domestic remedies. But at that time the case-load of the Co urt was nearly non-existent [22] , so that for practical purposes it would have been without any importance if the Commission were to have interpreted and applied Article 26 (art. 26) more leniently than the Court deemed fit. And now, nearly twenty years later - when the proper functioning of the Court would, having regard to its present case-load, be seriously endangered by such interpretation and application -, experience has taught that in this respect there do not exist serious differences of opinion between the Commission and the Court: in all those years the Court has only twice come to a conclusion that differed from that of the Commission [23] !

4.4 A third, and in my view decisive, practical argument is contra. I refer again to the continuing and rather alarming increase in the Court ' s case-load which, were the Commission to become a semi-permanent body, would only become worse. This increase should, in my opinion, prompt re-thinking of accepted doctrines. Abandonment of the doctrine under discussion would result in a considerable saving of time and energy. This is because preliminary objections are argued before the Court in many cases and quite often raise difficult and therefore time-consuming questions: firstly it may be necessary to go very carefully over the files of the Commission to ascertain whether or not the objection has already been raised - in substance (!) - before the Commission; then, questions may arise as to the interpretation of the many subtly connected rules that we conveniently, but with some over-simplification, designate as the exhaustion rule; and, lastly, it may be necessary to go into intricate questions of domestic law and to make difficult factual assessments. Moreover, most of these questions will already have been answered by the other Convention organ, which has far more practice and therefore experience in this field than the Court. The time and energy spent on these questions could and should be devoted to the Court ' s specific task of ensuring the observance of the rights and freedoms guaranteed in the Convention.

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5. I then come to legal certainty. Of course it may be said that every overruling affects legal certainty, but there are differences of degree. A court should not overrule an interpretation of a rule of civil law on which society has based its contracts. But it would seem to me that the rules we are concerned with here do not enter into that very special category where overruling is almost unthinkable.

It may be true that without the rule of exhaustion some, or perhaps even many, Contracting States would hardly have been willing to accept the system of "the international machinery of collective enforcement est ablished by the Convention" [24] . But one cannot seriously maintain that they accepted that machinery in the expectation that the observance of that rule would be tested twice. And even if somewhere reliance was placed on such an expectation, it would not seem to deserve protection: at least I cannot see that real State interests which are seriously worthy of protection would be harmed if the Court were to decide that, once the case is brought before it, respondent States would no longer be afforded an opportunity to escape from having to answer as to the merits.

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6. Having considered these various aspects of the question whether, under present conditions, the Court should overrule its De Wilde, Ooms and Versyp judgment of 1971, I have come to the conclusion that it should be answered in the affirmative. For the sake of completeness I would like to add that it should, of course, not be inferred from the above considerations that in those - presumably rare - cases in which the non-exhaustion issue cannot be separated from the merits the Court would lack jurisdiction to take cognisance of that issue as well.

7. For these reasons I have voted in favour of rejecting the Italian Government ' s objections as to admissibility only under the proviso that in my opinion the Court ought to refuse to take cognisance of them.

[*]  Note by the registry.  The case is numbered 7/1988/151/205.  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.

[*]  Note by the Registrar.  For practical reasons this annex will appear only with the printed version of the judgment (volume 167 of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.

[1] Paragraph 26 of the judgment.

[2] Paragraph 1 of the judgment.

[3] Paragraph 21 of the judgment.

[4] Paragraph 23 of the judgment.

[5] See his letter of 8 July 1988 , requesting leave to present his own case before the Court.

[6] Paragraph 16 of the judgment.

[7] Paragraph 22 of the judgment.

[8] Paragraphs 17 to 20 of the judgment.

[9] Paragraph 33 of the judgment.

[10] Judgment of 18 June 1971 , Series A no. 12, pp. 29-31, §§ 47-55.

[11] See the Artico judgment of 13 May 1980, Series A no. 37, p. 12, § 24, and the Van Oosterwijck judgment of 6 November 1980, Series A no. 40, p. 13, § 25: "insofar as the respondent State may have first raised them before the Commission, in principle at the stage of the initial examination of admissibility, to the extent that their character and the circumstances permitted."

[12] See, for example, the Klass and Others judgment of 6 September 1978, Series A no. 28, p. 17, § 32, and, as the most recent instance, the Bricmont judgment of 7 July 1989, Series A no. 158, p. 27, § 73.

[13] As far as I am aware, there are no examples of explicit overruling in the Court's case-law.  That does not mean, of course, that the Court would hold that it lacks power to overrule its own precedents; it did so implicitly in paragraph 78 of its above-mentioned De Wilde, Ooms and Versyp judgment where it in fact retracted what it had said in paragraph 24 of its Neumeister judgment of 27 June 1968 (Series A no. 8, p. 44).  (I owe this reference to the kind help of our Registrar.)

[14] See the above-mentioned De Wilde, Ooms and Versyp judgment, p. 29, § 49.

[15] See the above-mentioned De Wilde, Ooms and Versyp judgment, p. 52; see to the same effect Judge Wold at p. 57.

[16] See the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 63, § 157.  See also the Winterwerp judgment of 24 October 1979 , Series A no. 33, p. 27, § 71.

[17] See the Johnston and Others judgment of 18 December 1986 , Series A no. 112, p. 23, § 48.

[18] See p. 29, § 50.

[19] Quotation from the above-mentioned De Wilde, Ooms and Versyp judgment, p. 29, § 50.

[20] I refer to the working hypothesis mentioned in paragraph 27 of the aforementioned Van Oosterwijck judgment (cited in note 2).

[21] See, for example: Jacobs, The European Convention on Human Rights (1975), pp. 263/264; Pelloux, Annuaire français de droit international, 1972, pp. 444-445 (who rightly points out that the most likely interpretation of Article 45 (art. 45) is to assume that it refers to the conditions set out in Articles 46, 47 and 48 art. 46, art. 47, art. 48)); Trechsel, Zeitschrift für Schweizerisches Recht, 1975, pp. 422-423; A.A. Cançado Trindade, Human Rights Journal, 1977, pp. 149 et seq.; G. Cohen Jonathan, Cahiers de droit européen, 1979, p. 480; D. Sulliger, L'épuisement des voies de recours internes  en droit international général et dans la Convention européenne des droits de l'homme (1979), pp. 152-154; Van Dijk and Van Hoof, Theory and practice of the European Convention on Human Rights (1984), pp. 123-128; Frowein-Peukert, Europäische Menschenrechtskonvention,  p. 448.

[22] Since 1959 only 10 cases had been brought before the Court.

[23] See the Van Oosterwijck judgment, referred to in note 2, and the Barberà, Messegué and Jabardo judgment of 6 December 1988, Series A no. 146, pp. 28-29, § 59.

[24] Quotation from the Court's judgment of 23 July 1968 in the case "relating to certain aspects of the laws on the use of languages in education in Belgium ", Series A no. 6, p. 35, § 10.