JOINT PARTLY DISSENTING OPINION OF JUDGES BRATZA, TULKENS, SPIELMANN, KOVLER, KALAYDJIEVA , VUČINIĆ AND RAIMONDI

(Translation)

1. We are unable to follow the majority in upholding the Government’s preliminary objection of non-exhaustion of domestic remedies in respect of Mr Dabetić and Mrs Ristanović (point 4 of the operative provisions of the judgment).

2. In the present case the Court found a violation of Article 13 in conjunction with Article 8 of the Convention. In paragraph 371 of the judgment it referred to its finding that the Government had failed to establish that the remedies available to the applicants were “adequate” and “effective” in order to redress, at the material time, the alleged violation of Article 8. The Court linked its finding of a violation of Article 13 of the Convention to its decision to dismiss the objection of non-exhaustion in respect of the six applicants who eventually received residence permits (Mr Kurić, Ms Mezga, Mr Ristanović, Mr Berisha, Mr Ademi and Mr Minić – see paragraphs 295-313 of the judgment). In accordance with the traditional approach taken in its case-law, it thereby applied the principle of the “close affinity” characterising the subtle links between Articles 35 and 13 of the Convention. The non-exhaustion rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in the domestic system in respect of the alleged breach (see, as most recent authorities, Sabeh El Leil v. France [GC], no. 34869/05, § 32, 29 June 2011, and McFarlane v. Ireland [GC], no. 31333/06, § 107, 10 September 2010).

3. The Court conducted a detailed examination of the various options referred to by the Government in support of their objection, namely individual constitutional appeals, a petition for an abstract review of the constitutionality of legislation, the amended Legal Status Act and citizenship proceedings. The Court was not persuaded by any of these remedies put forward by the Government, holding that the objection should be dismissed and quite logically concluding, on exactly the same grounds, that there had been a violation of Article 13 in conjunction with Article 8.

4. There are only two alternatives here: either there are remedies satisfying the criteria of adequacy and effectiveness, or there are not. In opting for the second alternative, the Court should in our view have also dismissed the objection of non-exhaustion of domestic remedies in respect of Mr Dabetić and Mrs Ristanović. The fact that these two applicants did not attempt to obtain a residence permit or take any other steps to regularise their residence status (see paragraphs 289-294 of the judgment) is of no relevance to a finding that domestic remedies were not exhausted.

PARTLY DISSENTING OPINION OF JUDGE COSTA

(Translation)

I readily subscribe to the excellent arguments put forward by Judge Spielmann and several other colleagues in their joint opinion: the application, in so far as it was lodged by Mr Dabetić and Mrs Ristanović should not, in my opinion, have been rejected for failure to exhaust domestic remedies. Since the Court found that the domestic remedies were not sufficiently effective, it should not have been necessary to exhaust them, and the reasoning in the judgment is contradictory in this respect; I shall not labour the point.

I would, however, add an observation covering two aspects.

In my view, it would have been preferable to examine in the first place whether these two people qualified as victims or whether, as the Slovenian Government also maintained, the fact that they did not seek to avail themselves of the laws whereby their claims could (possibly) have been satisfied demonstrated their lack, or loss, of victim status.

Firstly, although the Court’s case-law does not lay down a rigid hierarchy regarding objections to admissibility, it would seem more natural to determine whether applicants have victim status before deciding whether they have exhausted domestic remedies. The former issue, moreover, is referred to in Article 34 of the Convention and the latter in Article 35, although I accept that this textual argument is not compelling.

Secondly, I consider that the Government were mistaken in confusing the apparent lack of interest shown by these applicants with the loss of their status as victims. Mr Dabetić and Mrs Ristanović were in very difficult circumstances for reasons relating to ill health and geographical distance, and the complexity of the various legal changes affecting their situation did not make it any easier for them to become acquainted with the instruments that might have formed the basis for their requests. It is therefore harsh to maintain that their subjective – and, I repeat, apparent – lack of interest can be taken to equate to loss of victim status, which is an objective factor. A shift from subjective to objective considerations is not impossible in certain special circumstances, but it can certainly not be presumed.

Admittedly, by upholding the objection of failure to exhaust domestic remedies, the judgment was not required to examine the objection of lack of victim status, rightly noting that it was not necessary to do so. However, I wished to point out that in my view, the complaints which Mr Dabetić and Mrs Ristanović brought before the European Court of Human Rights were admissible on two counts, and probably well-founded. I thus find it all the more regrettable that these complaints were rejected.