JOINT SEPARATE OPINION OF JUDGES ROSS         AND SIGURJÓNSSON

(Translation)

According to Article 26 (art. 26) of the Convention, the Commission may not deal with the petition addressed to the Secretary General of the Council of Europe (Article 25) (art. 25) until all domestic remedies have been exhausted.

According to Article 27 (3) (art. 27-3), the Commission shall reject any petition referred to it which it considers inadmissible under Article 26 (art. 26).

According to Article 28 (art. 28), in the event of the Commission accepting a petition referred to it, it shall undertake an examination of the petition with a view to ascertaining the facts and place itself at the disposal of the parties concerned with a view to securing a friendly settlement of the matter on the basis of respect for Human Rights.

According to Article 31 (art. 31), if a solution is not reached the Commission shall draw up a report on the facts and state its opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention, and this report shall be transmitted to the Committee of Ministers.

According to Article 32 (art. 32), if the question is not referred to the Court in accordance with Article 48 (art. 48) within a period of three months from the date of the transmission of the Commission ’ s report to the Committee of Ministers, the Committee of Ministers shall decide by a two-thirds majority whether there has been a violation of the Convention.

According to Article 45 (art. 45), "The jurisdiction of the Court shall extend to all cases concerning the interpretation and application of the present Convention which the High Contracting Parties or the Commission shall refer to it in accordance with Article 48 (art. 48)".

The expression "case" means the facts found by the Commission in its report. A "case" does not exist until the Commission ’ s report has been transmitted to the Committee of Ministers. The Commission, in its report which is transmitted to the Committee of Ministers, finds the facts and states an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention. If the case is not referred to the Court in accordance with Article 48 (art. 48), the Committee of Ministers decides whether there has been a violation of the Convention.

If the "case" is referred to the Court, its jurisdiction consists in interpreting and applying the Convention to all the "matters", i.e. to all the facts found by the Commission in its report, and in rendering a final judgment (Article 52) (art. 52) as to whether those facts disclose a breach by the State concerned of its obligations (engagements: Article 19 (art. 19)) under the Convention. A final judgment can only be a judgment that deals with the merits of the "case", that is to say, whether the facts found by the Commission disclose a violation of the Convention.

The admissibility or inadmissibility of the petition is a preliminary (procedural) question which is left to the "powers" of the Commission (Article 25 (4)) (art. 25-4). As against this, the question whether the facts found in the Commission ’ s report disclose a breach by the State concerned of its obligations under the Convention is a matter for the jurisdiction of the Court, and if the case is not brought before the Court it is a matter for the jurisdiction of the Committee of Ministers.

The question of the admissibility or inadmissibility of the petition is, from the standpoint of pure logic, one and indivisible. The Commission either has jurisdiction or it has not. It would be illogical if the Commission had exclusive jurisdiction when it rejected a petition but did not have exclusive jurisdiction when it accepted one, so that the Court ’ s jurisdiction (or that of the Committee of Ministers if the case is not referred to the Court) also covers the preliminary (procedural) question whether the Commission, in accepting the petition, has rightly or wrongly interpreted and applied Article 27 (art. 27) of the Convention.

Under Protocol No. 3 (P3) to the Convention, Article 29 (art. 29) is deleted from the Convention and the following provision is inserted:

"After it has accepted a petition submitted under Article 25 (art. 25), the Commission may nevertheless decide unanimously to reject the petition if, in the course of its examination, it finds that the existence of one of the grounds for non-acceptance provided for in Article 27 (art. 27) has been established.

In such a case, the decision shall be communicated to the parties."

Under this provision, the Commission may at any time return to the preliminary (procedural) question of the admissibility or inadmissibility of the petition accepted and reject the petition, by a unanimous decision, if it finds that the existence of one of the grounds for inadmissibility provided for in Article 27 (art. 27) has been established.

The Commission ’ s power to resume at any time its consideration of the admissibility proves that it has sole jurisdiction on this point and that, unless there is a unanimous decision to reject a petition accepted, the Court has no jurisdiction to consider this preliminary question. Thus, there is a saving of time and, at the same time, the prestige of the Court remains intact as the Court is rid of questions which do not relate to the facts found in the Commission ’ s report.

The Contracting Parties inserted Article 26 (art. 26) in order to have it solemnly declared that the Convention does not depart from the generally recognised principle that there can be no access to an international authority until all domestic remedies have been exhausted.

One might have expected the sanction to be included in the same Article 26 (art. 26). One might even have expected that nothing be said. On the contrary, the sanction was included in Article 27 (art. 27) as one of the grounds for inadmissibility. The words "the Commission shall reject" have the same meaning as "the Commission feels, the Commission considers".