CONCURRING OPINION OF JUDGE MULARONI

(Translation)

While I share the opinion of the majority that there has been a violation of Article 6 of the Convention, I should like to emphasise the following.

1. As regards the Government's preliminary objection that the applicant did not avail himself of the domestic remedy provided for in Article 175 of the Code of Criminal Procedure, I should like to point out, bearing in mind the somewhat varying expressions used in paragraphs 52, 55, 103 and 104 of the judgment, that I am not persuaded that this remedy was bound to fail. I voted with the majority in finding that there were special circumstances dispensing the applicant from the obligation to use the remedy in question and that this limb of the Government's preliminary objection should therefore be dismissed. While I acknowledge that there was some uncertainty as to this remedy's prospects of success, I nevertheless reached this conclusion on account of the objective obstacles referred to in paragraph 54 of the judgment. Had those obstacles not been present I would have concluded – in accordance with our case-law to the effect that the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see Akdivar and Others v. Turkey , 16 September 1996, § 71, Reports of Judgments and Decisions 1996-IV, and Brusco v. Italy (dec.), no. 69789/01, ECHR 2001-IX) – that the applicant had not exhausted domestic remedies.

2. With regard to paragraphs 101 to 104 of the judgment, I must admit that I have difficulty in following an approach that amounts to examining twice the same preliminary objections raised by the Government, the first time as to admissibility and the second as to the merits; such an approach entails the possibility of finding that the Government are estopped from raising the objections in question as to their admissibility but that there has been no violation of the Convention on the merits. I consider that it would have been sufficient to examine them at the admissibility stage without returning to them at the merits stage.