SEPARATE JOINT CONCURRING OPINION OF JUDGES VERDROSS AND BILGE

(Translation)

We agree with the opinion expresse d in the judgment with the sole exception of the reasons stated in respect of the exhaustion of domestic remedies.

In our opinion, the Court should not ex amine the arguments put forward by the Austrian Government on the exhaustion of domestic remedies for the following reasons:

It is true that "the jurisdiction o f 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)" (Article 45) (art. 45). This Article must not, however, be interpreted in isolation. The jurisdiction of the Court is not defined by Article 48 (art. 48) alone, to which explicit reference is made in Article 45 (art. 45): it is also defined by other articles. It is provided in Article 47 (art. 47) that "the Court may only deal with a matter after the Commission has acknowledged the failure of efforts for a friendly settlement and within the period of three months provided for in Article 32 (art. 32)". Then, according to Article 28 (art. 28) the effort to achieve a friendly settlement only takes place where the Commission declares the application admissible and ascertains the facts. The Commission does not accept the application if it "considers (it) inadmissible under Article 26 (art. 26)" (Article 27 (3)) (art. 27-3). Without having to go into the exact meaning of the term "case" ("affaire") used in Article 45 (art. 45), one must conclude from the text of the Articles cited that a High Contracting Party may not submit to the Court any question it pleases without observing the conditions laid down by the relevant Articles of the Convention.

The rule of exhaustion of domestic rem edies is a preliminary question relating principally to the admissibility of the application (Article 27 (3)) (art. 27-3). It is for the Commission to decide whether this condition has been fulfilled. Indeed, Article 26 (art. 26) stipulates that "the Commission may only deal with the matter after all domestic remedies have been exhausted ...". According to the very text of this Article, the question of exhaustion of domestic remedies must be previously raised before the Commission. In the present case that has not been done. Consequently, the Commission has not had an opportunity to take a decision on the point.

This conclusion can also find confirma tion in the general plan of the Convention and the special features of our jurisdiction. By Article 19 (art. 19), the Convention set up 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. Furthermore, the institution of the Commission and its functions constitute special features of our jurisdiction. One may not therefore interpret Article 45 (art. 45) without taking account of this general plan of the Convention and of the special features we have just mentioned.

For the reasons set out above, we consider that the Court may not entertain a question of exhaustion of domestic remedies which has not been previously submitted to the Commission. In the present case, the Court should find it sufficient to point out to the Austrian Government that the Court is unable to examine the question at this stage.