DISSENTING OPINION OF JUDGE MORENILLA

To my regret, I do not agree with the majority’s conclusion that, since the applicant failed to exhaust domestic remedies before applying to the Commission, the Court cannot consider the merits of the case.

In its decision on the admissibility of the instant case the Commission expressed the view that “the application should not be declared inadmissible for non-exhaustion of domestic remedies taking into account the special circumstances which absolve the applicant from exhausting these remedies according to the correct procedures”. Moreover, in its report the Commission concluded that the applicant’s expulsion to Bangladesh would be in breach of Article 3 of the Convention, having regard to the risk of ill-treatment alleged by Mr Bahaddar.

The reasons that I have been stating in my dissenting opinions ever since the cases of Cardot v. France (judgment of 19 March 1991, Series A no. 200, p. 23) and Oberschlick v. Austria (judgment of 23 May 1991, Series A no. 204, p. 36) concerning the Commission’s role in the admissibility issue, apply even more in the present case, because Mr Bahaddar, relying on Articles 2 and 3 of the Convention (see paragraph 35 of the judgment), bases his application on the ground that “the decision of the Netherlands authorities to expel him to Bangladesh would, if put into effect, expose him to a serious risk of being killed or ill-treated”.

Furthermore, I consider that even on a strict interpretation of Article 26 of the Convention, the gravity of these circumstances and the procedural steps taken by the applicant before the Netherlands administrative and judicial authorities (see paragraphs 7–19 of the judgment) should have outweighed the technical procedural formalities that were taken into account by the majority when re-examining the Commission’s decision, and that the Court should have taken cognisance of the merits.

[1] . This summary by the registry does not bind the Court.

[2] Notes by the Registrar

. The case is numbered 145/1996/764/965. The first number is the case’s position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case’s position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[3] . Rules of Court B, which came into force on 2 October 1994, apply to all cases concerning States bound by Protocol No. 9.

[4] . Note by the Registrar . For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1998), but a copy of the Commission’s report is obtainable from the registry.