CONCURRING OPINION OF JUDGE VAN DIJK

I voted in favour of accepting the Government’s preliminary objection. That requires some explanation since I have always agreed with those members of the Court who were of the opinion that, in the supervisory system established under the Convention and according to its “procedural economy”, the Court has no jurisdiction to examine preliminary objections as to admissibility which have been raised before the Commission and rejected by it (see, in particular, Judge Martens in his separate opinion in the case of Brozicek v. Italy, judgment of 19 December 1989, Series A no. 167, pp. 23–28).

However, the position which the Court adopted on the issue in its judgment of 18 June 1971 in the case of De Wilde, Ooms and Versyp v. Belgium (Series A no. 12) has been well established and consistently maintained in the Court’s case-law, albeit with substantial dissent on one ground or another (see, for example, the concurring opinion of Judge Russo, the joint dissenting opinion of Judges Bernhardt, Pekkanen, Morenilla and Baka, and the separate opinion of Judge Martens in the case of B. v. France, judgment of 25 March 1992, Series A no. 232-C). As the issue will not arise in respect of the new Court which will begin to function in November of this year, I do not consider it productive to dissent, merely as a matter of principle, from the majority in a case where the Commission was, in my opinion, plainly wrong to declare the application admissible.

The Commission, in its decision on admissibility, has created far too broad and too generally formulated an exception to the exhaustion rule, one which does not seem to sit well with the settled case-law on “special circumstances” and which, moreover, seems to ignore the fact (highly relevant to the exhaustion rule) that the applicable law enabled the applicant – without putting himself in imminent danger of expulsion – to file a new application for refugee status or a residence permit on the basis of the new, ostensibly authentic document concerning his alleged membership of the Shanti Bahini . This decision of the Commission, and the reasons given for it, should not, in my opinion, guide the Commission or, for that matter, the new Court in future decisions on admissibility. I therefore consider it of great importance that it should be reversed by the present Court.

DISSENTING OPINION OF JUDGE FOIGHEL

In paragraph 45 of the judgment the majority stated, rightly, that the very purpose of the rule set out in Article 26 (the rule that domestic remedies should be exhausted before an application is brought in Strasbourg) is to ensure that the Contracting States are not denied the opportunity to put matters right through their own legal system.

In the case of Akdivar and Others v. Turkey it was stated in paragraph 69 (quoted in paragraph 44 of the present judgment):

“69. The Court would emphasise that the application of the rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, it has recognised that Article 26 must be applied with some degree of flexibility and without excessive formalism (see the above-mentioned Cardot judgment, p. 18, § 34). It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case (see the above-mentioned Van Oosterwijck judgment, p.18, § 35). This means amongst other things that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants.”

In the instant case, it is necessary to have regard to the factual context.

The applicant lived in the Netherlands from 1990 onwards. In the period between 1990 and 1995, his case was heard, investigated and decided at several levels, and by several administrative and judicial authorities, all of which would have had ample opportunity to rectify his situation if they had accepted that he had suffered any wrong.

Furthermore, nothing in his behaviour indicated that he wanted to deny the authorities the opportunity to put matters right through the Netherlands system. As stated in paragraph 23, his final appeal was declared inadmissible for the sole reason that he had not submitted his grounds for appeal within the time-limit set for that purpose – although he did so afterwards, and there is nothing to indicate that the competent authority was precluded (by pressure of time or some other reason) from taking cognisance of them.

That being so – and taking into account the applicant’s personal circumstances – I cannot accept the Government’s preliminary objection that the applicant had not complied with Article 26.