PARTLY DISSENTING OPINION OF JUDGE LEMMENS

1. To my regret, I cannot agree with the decision of the majority to declare the complaint concerning Article 6 of the Convention admissible.

In my opinion, it should be declared inadmissible for non-exhaustion of domestic remedies.

2. The object of the rule on exhaustion of domestic remedies is to allow the national authorities (primarily the judicial authorities) to address an allegation of a violation of a Convention right and, where appropriate, afford redress before it is submitted to the Court (see Azinas v. Cyprus [GC], no. 56679/00, § 37, ECHR 2004 ‑ III). If an application is nonetheless subsequently brought to Strasbourg, it also allows the Court to have the benefit of the views of the national courts, as being in direct and continuous contact with the forces of their countries (see Burden v. the United Kingdom [GC], no. 13378/05, § 42, ECHR 2008).

While Article 35 § 1 of the Convention must be applied with some degree of flexibility and without excessive formalism, it does not merely require applications to be made to the appropriate domestic courts and use to be made of effective remedies designed to challenge decisions already given. It also normally requires complaints intended to be brought subsequently to the Court to have been made to those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, among other authorities, Cardot v. France , 19 March 1991, § 34, Series A no. 200; Akdivar and Others v. Turkey , 16 September 1996, § 66, Reports of Judgments and Decisions 1996 ‑ IV; Fressoz and Roire v. France [GC], no. 29183/95, § 37, ECHR 1999 ‑ I; Azinas , cited above, § 38; Gäfgen v. Germany [GC], no. 22978/05, § 142, ECHR 2010; and Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 72, 25 March 2014).

If the complaint presented to the Court has not been put to the national courts, either explicitly or in substance, when it could have been raised in the exercise of a remedy available to the applicant, the national legal order has been denied the opportunity to address the Convention issue which the rule on exhaustion of domestic remedies is intended to give it. It is not sufficient for the applicant to have, unsuccessfully, exercised another remedy which could have overturned the impugned measure on other grounds not connected with the complaint of a violation of a Convention right. The Convention complaint must have been aired at national level for there to have been exhaustion of “effective remedies”. It would be contrary to the subsidiary character of the Convention machinery if an applicant, ignoring a possible Convention argument, could rely on some other ground before the national authorities for challenging an impugned measure, but then lodge an application with the Court on the basis of the Convention argument (see Azinas , cited above, § 38; Vučković and Others , cited above, § 75; and Nicklinson and Lamb v. the United Kingdom (dec.), nos. 2478/15 and 1787/15, § 90, 23 June 2015).

3. In the present case, in his appeal to the Supreme Court of Justice against the judgment of the Chișinău Court of Appeal of 27 October 2007, the applicant “outlined, inter alia, the discrepancies in the witness statements, which had been identified by the first-instance court after hearing them and which had not been clarified by the appellate court” (see paragraph 20 of the judgment). He thus merely argued that the Court of Appeal had wrongly assessed the witness evidence contained in the file, or at least had not sufficiently explained why it had assessed that evidence differently from the first-instance court.

In their submissions the Government indicate that the applicant did not complain to the Supreme Court of Justice of unfairness in the proceedings before the Court of Appeal or allege a violation of Article 6 of the Convention. According to the Government, he did not even complain that the Court of Appeal had decided the case without hearing the witnesses itself. The applicant does not refute those allegations, and there is nothing in the file to suggest that the Government ’ s submissions on this point lack any factual basis.

I therefore consider that the applicant did not raise with the Supreme Court of Justice the legal issue of whether the Court of Appeal could convict him on the basis of certain witness statements without hearing those witnesses . In other words, he did not raise the complaint that his right to a fair trial had been violated by the Court of Appeal ’ s failure to hear the witnesses whose testimony it relied on to find him guilty.

That complaint is, however, the complaint now before the Court (see paragraph 24 of the judgment).

4. Comparing the complaints brought to the Supreme Court of Justice and to the Court, I feel compelled to conclude that by failing to articulate the complaint that the Court of Appeal did not hear the witnesses, the applicant did not provide the Moldovan courts with the opportunity which is, in principle, intended to be afforded to a Contract ing State by Article 35 § 1 of the Convention, namely to address, and thereby prevent or put right, the particular Convention violation alleged against it (see, mutatis mutandis , Cardot , cited above, § 36; Azinas , cited above, § 41; Gherghina v. Romania [GC] (dec.), no. 42219/07, § 115, 9 July 2015; Peacock v. the United Kingdom (dec.), no. 52335/12, § 40, 5 January 2016; R.A. v. the United Kingdom (dec.), no. 73521/12, § 58, 3 May 2016; and for a case with similar facts to the present case, Condé v. France (dec.), no. 52878/99, 29 January 2002). By not raising the Convention complaint with the Supreme Court of Justice, explicitly or in substance, the applicant also deprived the Court of the benefit of having the Supreme Court of Justice ’ s views on the compatibility of the appeal proceedings with the Convention.

The majority dismiss the objection concerning the non-exhaustion of domestic remedies on the sole ground that, “in his appeal on points of law the applicant raised the issue of the Court of Appeal ’ s failure to clarify the discrepancies in the statements” (see paragraph 42 of the judgment). For the reasons stated above, and with all due respect, I find this reasoning insufficient.

5. The objection that the applicant did not exhaust domestic remedies should, in my opinion, be declared well-founded.

Consequently, the application should be rejected as inadmissible, in accordance with Article 35 §§ 1 and 4 of the Convention.