CONCURRING OPINION OF JUDGE MAHONEY

1 . Although I have voted with my colleagues on all points of the operative provisions, I have a few observations to make on two aspects of the reasoning concerning the question of non-exhaustion of domestic remedies.

A. When are the respondent Government obliged to provide examples of the remedy relied on being used in practice?

2 . Like Judge Wojtyczek, I would have preferred that paragraph 59 of the judgment in the present case explain more clearly, by way of introduction, the general point as to why in some cases the respondent Government are obliged by the Court to provide examples of the remedy relied on actually working in practice in relation to the kind of grievance raised by the applicant, whereas in other cases they are not so required. As it is, paragraph 59 of the judgment immediately goes to examining the scope of the constitutional remedy invoked by the respondent Albanian Government in the present case, leaving it to the reader to work out for himself or herself the underlying principles that are being applied.

3 . As to these principles, I can broadly associate myself with the analysis made by Judge Wojtyczek in paragraph 2 of his concurring opinion: where, on its face, the available remedy invoked by the respondent Government is clearly capable both of covering the factual situation complained of by the applicant and of offering adequate redress, the Government are not obliged to produce a list of examples where the remedy has been successfully used in relation to such a factual situation. This was not the position in the present case, though, since Article 131 (f) of the Albanian Constitution limited the remedy made available to complaints of violation of the right to a fair trial and did not at all, on its face, extend to complaints concerning deprivation of liberty (the right to liberty). Hence the Albanian Government needed to adduce evidence of the effectiveness of the remedy relied on in relation to the specific grievance raised by the applicant (deprivation of liberty); and their failure to do so entailed the conclusion that they had not made out the existence of an available remedy capable of addressing the applicant ’ s complaint.

B. Obligation incumbent on an applicant, by virtue of the rule of exhaustion of domestic remedies, to make a compensation claim for unjustified deprivation of liberty

4 . I find that the reasoning given in paragraph 62 is sufficient on its own for disposing of the Government ’ s preliminary objection under this head: the action for compensation under Article 268 § 2 of the Code of Criminal Procedure is dependent for its effectiveness on the existence of a recognition by the national courts of an unlawful detention and there was no such recognition in the present case.

5 . However, I would have preferred that the preceding paragraph, paragraph 61, not figure at all in the draft judgment, since, to my mind, the reasoning employed there turns the principle of subsidiarity on its head. I am aware that there is some support in the Court ’ s case-law for such reasoning, but that does not make it any less flawed. If an available domestic remedy is capable of providing the same redress for unjustified deprivation of liberty (a finding of unlawfulness and an award of compensation) as the necessarily after-the-event application to this Court, that perfectly adequate domestic remedy should be exhausted. Otherwise, the principle of subsidiarity is simply being ignored. And for what reason?

6 . The fact that, in the words of paragraph 61 of the judgment, the right not to be deprived of one ’ s liberty “save in accordance with a procedure prescribed by law” is not the same as the right to receive compensation, though true, is quite beside the point. Article 5 provides for several different rights relating to deprivation of liberty in addition to the right stated in paragraph 1. If the national law does not adequately embody, as required by paragraph 5 of Article 5, an enforceable right to receive compensation for unlawful detention, a separate complaint can be made to this Court and separate just satisfaction can be obtained under that head. However, if there does exist under domestic law an enforceable right to compensation for unlawful detention contrary to paragraph 1, then there is an effective domestic remedy that must first be exhausted by an applicant.

7 . Likewise, the fact, referred to in paragraph 61 of the judgment, that the procedural right to have the lawfulness of detention examined by a court is separate from the right to obtain compensation for unlawful detention is beside the point. Any failure by the domestic legal system to secure the right to have the lawfulness of a deprivation of liberty examined by a court can be the subject of a separate complaint under the Convention. Paragraph 61 of the judgment would here appear to be confusing the issue of ex-post-facto exhaustion of domestic remedies for unlawful detention with the quite separate obligations imposed on the Contracting States by Article 5 (notably under its paragraphs 3 and 4) to provide certain kinds of contemporaneous, preventive remedies relating to deprivation of liberty. I fail to see how, logically, this provision by Article 5 of a range of differing procedural rights can have any incidence on the obligation incumbent on an applicant to exercise an effective, after-the-event domestic remedy for unlawful detention – in so far as the respondent Government concerned have succeeded in demonstrating the availability of such a remedy, which, according to paragraph 62 of the judgment, they did not do in the present case.