JOINT PARTLY DISSENTING OPINION OF JUDGES SAJÓ AND WOJTYCZEK

1. We respectfully disagree with the majority on the question whether the Government ’ s objection of non-exhaustion of domestic remedies should have been dismissed.

I

2. The instant case raises a serious issue of procedural fairness. The efficient protection of Convention rights requires not only respect for the procedural rights of the parties to the proceedings before the Court but also mutual trust in relations between the Court and the parties. Therefore, if the Court gives instructions to the parties, the latter should have the certainty that if they comply in good faith with those instructions they will not find themselves in a legal trap and have their legitimate procedural interests affected as a result.

3. In the instant case, the Court, at the communication stage, prepared a statement of facts listing the developments which had taken place until the Chişinău Court of Appeal ’ s decision of 29 June 2007. The Court also informed the parties about the applicant ’ s grievances under Article 5 in the following way:

“The applicant complains under Article 5 §§ 1 and 4 of the Convention that the courts ordered and then extended his detention pending trial without giving relevant and sufficient reasons for doing so.”

The following instruction was included in the letter of 18 January 2010 from the Registrar:

“Should your Government decide to submit observations, they should only deal with the complaints concerning reasons for detention pending trial (Article 5 § 3 of the Convention) set out in the document appended to this letter.”

As noted above, the appended document presented only the facts that took place until 29 June 2007. The question of house arrest was not included in the statement of facts. The Government have never been explicitly invited to comment on this aspect of the case.

4. The Moldovan Government in their letter dated 16 June 2011 gave a detailed account of the developments which had taken place after 29 June 2007. They also stated that they would not address these developments “bearing in mind the applicant ’ s complaints and the limits of the notification [given] by the Court”. Therefore, in their submissions the Government did not address the issue whether the applicant had exhausted domestic remedies in respect of house arrest.

It is true that in a case involving a continuing situation the respondent Government should take a position on all the relevant developments occurring after the communication that form part of this continuing situation. However, the assessment of whether pre-trial detention and subsequent house arrest are elements of a continuing situation is far from obvious. That is precisely the gist of the present case.

In the instant case, the applicant was released from detention on remand and placed under house arrest by a decision of 20 July 2007. There is no doubt that house arrest constitutes deprivation of liberty within the meaning of Article 5. At the same time, the conditions of house arrest differ substantially from remand in custody. Therefore, the question whether house arrest is part of a continuing situation which starts with remand in custody for the purpose of the assessment of exhaustion of domestic remedies is an issue on which two reasonable lawyers may disagree. There is no reason to doubt that the Government, when responding to the communication of the case by the Court, followed the Court ’ s instructions strictly and in good faith. In this context, it is impossible to blame them for not having raised the objection of non-exhaustion of domestic remedies in respect of house arrest before the Chamber judgment was delivered. Given the content of the instructions addressed to the Government at the communication stage, the Court has been estopped from using the argument of tardiness.

5. Despite all that, the majority decided to dismiss the Government ’ s objection of non-exhaustion as being out of time. At the stage of the Grand Chamber proceedings, it is simply unfair to blame the Government – who were merely trying to observe the instructions they had received – for not having raised the issue of exhaustion of domestic remedies earlier. In our view, dismissing the Government ’ s objection of non-exhaustion of domestic remedies is a breach of procedural fairness.

II

6. We fully agree with the majority that the applicant ’ s attitude to his house arrest and omission to challenge the measure did not amount to a waiver of his right to liberty (see paragraph 109 of the judgment). However, we are not persuaded that one could not reasonably have expected the applicant to challenge the court decisions ordering his house arrest (see paragraph 108). This assertion by the majority seems to be based on the assumption of a structural flaw in the Moldovan legal system and of harassment of the applicant by the competent authorities. However, there is nothing to suggest that challenging his house arrest would have placed the applicant at risk of being detained on remand again.

III

7. For the reasons set out above we have voted against dismissing the Government ’ s objection of non-exhaustion of domestic remedies.