SEPARATE OPINION OF JUDGE BILGE

(Translation)

I do not share the opinion expressed in the judgment as regards the jurisdiction of the Court to entertain submissions on the non-exhaustion of domestic remedies. In paragraphs 47-49, the judgment, referring to Article 45 (art. 45), gives the Court ’ s jurisdiction a wide scope which corresponds neither to the texts nor to the aim and purpose of the Convention.

It is true that, 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)", but the Court has interpreted the text broadly. One of the three elements of the basis of the Court ’ s jurisdiction provided for in this article (art. 48) is the word "affaires" ("cases"). Relying on the English version of paragraph (1) of Article 46 (art. 46-1), the Court interprets this word as "all matters". But in interpreting a text which is authentic in two languages, one cannot, in my opinion, give preference to one language: one must find the meaning which best reconciles the two texts, taking into account the aim and purpose of the Convention. In the different articles of the Convention, the French text constantly uses the word "affaire" while the English text expresses the same concept by the words "question", "cases" and "matters". The English version is not, from this point of view, a text which has a uniform terminology on which one can rely. The text of Article 45 (art. 45) does not provide sure indications to clarify the meaning of the word "affaires". One must therefore go to the source of the Court ’ s jurisdiction to harmonise the words quoted and find a common meaning. According to Articles 31 and 32 (art. 31, art. 32) what is referred as an "affaire" ("case") by the Commission to the Committee of Ministers or to the Court is the question whether there has or has not been a violation of the Convention. The word "affaire" must therefore be interpreted in this sense.

This meaning of the word "affaire" is also confirmed by the general plan of the Convention. By Article 19 (art. 19), the Convention set up two organs, the Commission and the Court, to ensure the observance of Human Rights. To this aim, the Commission and the Court have defined powers. Competence to accept an application and to check its admissibility belongs to the Commission. Jurisdiction to decide whether there has been a violation of the Convention belongs to the Court. It is within this field that the Court enjoys full jurisdiction.

The purpose of the Convention is to ensure the observance of Human Rights. To achieve this end the Court must reach a decision as quickly as possible without letting the case drag on unreasonably. Through a broad interpretation of Article 45 (art. 45), the judgment has set up a system of supervision by the Court of the Commission ’ s decisions on admissibility. An enormous waste of time and effort would result in cases where the Court should find, generally four or five years after the admissibility of the applications, that Article 26 (art. 26) has not been observed. If there is jurisdiction to supervise decisions of admissibility, it must be exercised at the first stage of the proceedings. Such supervision is not provided for by the Convention, because it is left to the competence of the Commission.

I agree with the judgment when it states, in paragraph 50, that "the rule of exhaustion of domestic remedies, which dispenses States from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, is also one of the generally recognised principles of international law to which Article 26 (art. 26) makes specific reference". However, I do not agree with the judgment in deducing therefrom a supervisory jurisdiction of the Court. In effect, the rule of exhaustion of domestic remedies is not concerned with the internal organisation of a given international jurisdictional body. As stated above, the Convention set up two organs to ensure the observance of Human Rights. The aim of the rule in question is achieved if the rule is observed by one of these organs and, above all, by the organ entrusted with the task of checking the observance of the conditions of admissibility. This is all the more true since, according to paragraph (3) of Article 27 (art. 27-3), the condition of exhaustion of domestic remedies is a preliminary question which concerns essentially the admissibility of the application. It is for the Commission to decide whether this condition is fulfilled. If the question of exhaustion of domestic remedies is raised before the Commission and the latter has decided the issue, the requirements of the rule in question are completely satisfied from the point of view of international law.

Moreover, the judgment states in paragraph 51 that "the task which this Article [27] (art. 27) assigns to the Commission is one of sifting; the Commission either does or does not accept the applications. Its decisions to reject applications which it considers to be inadmissible are without appeal as are, moreover, also those by which applications are accepted; they are taken in complete independence". The judgment adds, however, that the decision of the Commission to accept a case "is not binding on the Court any more than the Court is bound by the opinion expressed by the Commission". I cannot accept this reasoning. First of all, the decision of admissibility taken by the Commission and the opinion expressed by it on the merits are of a different nature. An opinion, by its very nature, does not bind anyone. There is no need to cite it alongside the decision of admissibility for the purpose of making an argument against the latter.

According to Articles 25 and 27 (art. 25, art. 27), the decision on the admissibility of an application falls within the competence of the Commission. In the exercise of this jurisdiction, the Commission checks the observance of the conditions of admissibility. In the course of this examination it takes into consideration the condition laid down in Article 26 (art. 26). This article (art. 26) is addressed, as the text itself bears witness, to the Commission and not to the Court. It is part of the Commission ’ s field of activity. On the other hand, it is not reasonable to declare that the decision of refusal binds the Court while that of admissibility does not, for the two aspects of the same jurisdiction cannot be separated. In adopting another solution, the judgment has opened a way of proceeding, which, in my view, does not conform to the principles of good administration of justice.

For the reasons set out above, I think that the Court has no jurisdiction to entertain submissions of non-exhaustion of domestic remedies.