CONCURRING OPINION OF JUDGE VALTICOS

( Translation )

In this apparently straightforward case a complication has arisen out of the federal structure of the Swiss Confederation.

As a result of the federal structure, the applicant was successively transferred for periods of varying length from one prison to another and one canton to another.

Was he able, in those circumstances, to exhaust domestic remedies effectively as required by the rules of international law in general and the provisions of the Convention in particular? That is an important point and one that may inspire doubts.

The Agent of the Government argued before the Court that the applicant could have had recourse to the Swiss courts to have the lawfulness of his detention decided, but did not do so. The question arises whether, given the mostly short periods of detention in the cantons, he could have had recourse to such proceedings in practice. Quite clearly, he would not have been able to do so where the detention lasted, as in Lucerne, for four or five days; but the length of his detention elsewhere, as in Glarus, St Gall and the Canton of Aargau for eleven, eighteen and ten days respectively, would perhaps have given him enough time at least to institute such proceedings. The problem was exacerbated because the applicant was probably unaware how long his detention would last in each of the cantons and that he could at least have commenced proceedings and no doubt also appealed to the Federal Court.

Admittedly, the applicant challenged the decision of the Lucerne Court of Appeal, but that was the only appeal he brought and it was limited in scope.

Naturally, unifying criminal procedure in the cantons could facilitate matters in the future, but as they stand at present, there were nonetheless domestic remedies available which, as the Agent of the Government pointed out to the Court, were not used; whilst it is true that they are, in their present form, complex, they nevertheless exist.

In these circumstances, a strict interpretation of the rule requiring exhaustion of domestic remedies would lead to the conclusion that it has not been satisfied in the present case; and it might be felt to be going too far to hold that such a question should turn upon the ease with which recourse may be had to the available remedies.

It would therefore appear natural, in the present case, to conclude that domestic remedies have not been exhausted.

However, would that not be to take too rigid a view?

I think ultimately that it would be in this instance.

Certainly, ignorance of the law is no excuse. But it must also be said that no one can be expected to do the impossible, and what is impossible must,

in cases such as this one, cover conditions that are too onerous because of the shortness of the time-limits and the difficulties which detained persons experience in obtaining information about the conditions that have to be satisfied if they are subsequently to be able to rely effectively on the provisions of the European Convention.

In these circumstances, it would ultimately appear that excessive insistence on compliance with the rule of exhaustion of domestic remedies would, in the present case, result in a denial of justice. Accordingly, this opinion, initially a dissenting one, has, on reflection, become one in which I concur in the view of the other members of the Chamber.

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

[2] Notes by the Registrar

. The case is numbered 81/1996/700/892. 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 1997), but a copy of the Commission’s report is obtainable from the registry.