JOINT SEPARATE OPINION OF JUDGES WOLD AND SIGURJÓNSSON

As to the jurisdiction (paragraph 84 of the judgment), Judges Wold and Sigurjónsson refer to their respective dissenting opinions in the De Wilde, Ooms and Versyp cases, but feel themselves obliged to defer to the opinion of the majority of the Court on this point.

SEPARATE OPINION OF JUDGE VERDROSS

(Translation)

I find to my regret that I do not agree with the Chamber ’ s judgment on two main points.

1. First, I am unable to accept the interpretation given in the judgment to Article 26 (art. 26) of the Convention for the following reasons:

According to the French text of Article 26 (art. 26), the Commission may only be " saisie " (seized of) after exhaustion of domestic remedies, while the English text provides that the Commission "may only deal with the matter after all domestic remedies have been exhausted". Faced with these two equally authentic texts, the Commission may not select the text which seems to it to be the most practical but must endeavour to find an interpretation which, having regard to the object and purpose of the treaty, best "reconciles" these texts (Article 33, paragraph 4, of the Vienna Convention on the Law of Treaties).

There is no doubt that the French term " saisir " has a clear and specific meaning while the English expression "deal with" has a wider meaning, because every act of an authority in regard to a case brought before it is to "deal with". This expression therefore also covers the registration of a case by the Commission; from this it clearly results that only the French version can be reconciled with the two texts.

This interpretation is even forced upon us by the fact that the verb "deal with" (" saisir ") refers to the two clauses in Article 26 (art. 26), namely, the exhaustion of domestic remedies and the six-month time-limit. If then one were to accept the interpretation adopted by the Commission whereby the term "deal with" (" saisir ") means "concern itself with an application" (" s ’ occuper d ’ une affaire") one would reach the absurd conclusion that the Commission could concern itself with a case only within the time of six months from the date of the final domestic decision.

My interpretation finds confirmation in the provision contained in Article 27, paragraph (3) (art. 27-3), which obliges the Commission to reject any petition contrary to Article 26 (art. 26). The Commission cannot, therefore, decide whether the conditions for the admissibility of an application are fulfilled ex nunc, that is at the time it begins to examine the case : the Commission must decide whether the application as such fulfilled ex tunc the conditions of Article 26 (art. 26).

Against this interpretation the Commission and the Chamber invoke the practice in international judicial precedents. It is true that Article 26 (art. 26) refers to "the generally recognised rules of international law". However, the reference in that Article is made within the framework of the special provisions of Article 26 (art. 26) and this can be done because the rules of general international law on the exhaustion of domestic remedies do not form part of the jus cogens. The special conditions of Article 26 (art. 26) therefore prevail over the general rules of international law. For this reason, it seems to me superfluous to undertake an analysis of international practice in the matter.

Nor is the interpretation given here to Article 26 (art. 26) upset by the purpose of this Article, for all the provisions which mark out the limits of an international body ’ s jurisdiction in the field in question are designed to protect the States from finding themselves arraigned at international level before they have had an opportunity to redress a violation which may possibly have been committed by an organ of lower rank. Consequently, every provision in this category must be interpreted strictly.

I am not unaware that it would perhaps be more appropriate to amend Article 26 (art. 26) in the way in which the Chamber has interpreted it, but the Commission and the Court must apply the Convention as it has been drafted by the High Contracting Parties. Like the International Court of Justice, "it is the duty" of our Court "to interpret the Treaties, not to revise them" (Advisory Opinion of July 18th, 1950 on the Interpretation of the Peace Treaties, 1950 Reports, p. 229).

2. Nor am I able to follow the Chamber when it declares that the detention of the Applicant, after his conviction on 14th January 1966 for fraud, was only a prolongation of the detention ordered in the fraudulent bankruptcy case. Admittedly, when opposing the request for release made by Ringeisen on 14th January 1966 , the public prosecution pointed out that Ringeisen would gain nothing by being released in the fraud case because he was also being held in detention in the fraudulent bankruptcy case. The Linz Court of Appeal, however, which allowed the public prosecution ’ s appeal on 2nd March 1966 , observed explicitly that the main reason to keep Ringeisen in detention was the fact that after the conviction for fraud there was an enhanced danger of his absconding as he could expect a heavy sentence.

It cannot in fact be contested that a danger of absconding may arise the moment a person who considers himself to be innocent and consequently is not thinking of flight finds himself faced with the new situation of an unexpected conviction. Even if one denies the existence of such a danger, one cannot ignore the fact that the Court of Appeal declared formally that it was maintaining the additional detention in the fraud case, although there was no need to maintain it for the purpose of preventing Ringeisen from absconding as he was also being held in detention in the fraudulent bankruptcy case. From this decision of the Court of Appeal onwards, the detention in the fraud case became predominant.

On 6th July and 30th November 1966 , the Linz Court of Appeal, in dismissing further requests for release, held again that there was a danger of absconding which resulted especially from the severity of the sentence imposed for fraud. In the second of these decisions, the Court of Appeal added that Ringeisen would not gain any advantage by being released in the fraudulent bankruptcy case since he was also being held in detention in the fraud case in which he had been convicted and then sentenced, on 18th October 1966 , to five years ’ severe imprisonment.

Lastly, Ringeisen was released by decision of the Court of Appeal on 15th March 1967 for the reason that the circumstances concerning the dangers of flight and of his committing further offences in the fraud case had completely changed, while his detention in the fraudulent bankruptcy case was terminated only as a consequence of the first order for his release.

From what precedes it emerges clearly that, after the conviction and sentence on 14th January 1966 for fraud, Ringeisen ’ s detention was maintained above all by reason of the danger of absconding which resulted from the conviction and sentence and from the second sentence pronounced in the same case on 18th October 1966 . Consequently, this detention was no longer governed by Article 5, paragraph (1) (c) (art. 5-1-c), but by Article 5, paragraph (1) (a) (art. 5-1-a), as the Court has acknowledged in the Wemhoff case and as the dissenting opinion of Judge Zekia makes abundantly clear in the present case.

These reasons are valid a fortiori in the present case where none of the conditions of Article 5, paragraph (1) (c) (art. 5-1-c), is fulfilled. In effect, Ringeisen did not appear in the appeal proceedings on the matter of his guilt and the Regional Court definitively found the facts and reached a verdict of guilt which was not in substance modified by the Supreme Court. One cannot, therefore, say that even after this verdict Ringeisen was merely suspected of having committed an offence within the meaning of Article 5, paragraph (1) (c) (art. 5-1-c).