CONCURRING OPINION OF JUDGE WOJTYCZEK

1. In the present case I agree with the outcome; however, I am not persuaded by some parts of the reasoning.

2. Effective protection of human rights depends, inter alia , on the precision and clarity of rules pertaining to the admissibility of applications. It is especially important to state precise rules allocating the burden of proof between the applicant and the respondent Government in respect of exhaustion of domestic remedies. In my view, the part of the reasoning concerning this question (especially paragraphs 59, 61-62, 81) may raise doubts, as the applicable rules are not clearly stated. I am not convinced that the readers of the judgment will fully understand the rationale underlying the approach of the Court in this respect.

Firstly, the majority emphasise the fact that the Government did not produce examples of case-law proving the effectiveness of the domestic remedies. However, it is not clear under which circumstances such an obligation arises for respondent governments. In this context, it was necessary to give some explanations on this point. In my view, governments have to provide examples of case-law proving the effectiveness of the remedy in particular where:

(1) the remedy in question appears at face value to be ineffective (this is the case with the constitutional complaint in the instant case); or

(2) the applicant has provided convincing explanations that the remedy would have been ineffective in the specific circumstances of his or her case.

Secondly, the majority stress that there was no domestic decision recognising that the applicant ’ s detention was unlawful. What is relevant however is not whether there was such recognition or not but whether the applicant had a domestic remedy by which to obtain such recognition. The lack of recognition is not an excuse if the applicant could have used a remedy for the purpose of securing such recognition.

Has the case-law of the Court developed and stated general rules pertaining to the exhaustion of domestic remedies which fulfil the standards of “adequate safeguards against arbitrariness” and “quality of law” spelled out in paragraph 74 of the judgment?

3. Concerning the substance, I agree that there has been a violation of Article 5 § 1. The domestic courts established that the time-limit for remand custody started to run on 13 March 200 9 and expired before 7 February 2011 (see paragraphs 25-28). It is obvious that after the time-limit set forth in national legislation the detention on remand became unlawful.

The majority find that Albanian legislation lacks clarity and foreseeability (paragraph 74). This is a serious allegation. I am not persuaded by it. It would have required a very thorough analysis of the content of the law in the light of the principles of interpretation recognised in the Albanian legal system. It would also have required a comprehensive assessment of the domestic case-law and practice.

In this context, I would like to make three observations. Firstly, a legal provision which may be interpreted in two or more different ways by the courts is not automatically incompatible with the requirements of precision, clarity and foreseeability. Likewise,, the fact that different courts had different views concerning the interpretation of the same provision of domestic law can never suffice per se to disqualify it from the viewpoint of the Convention.

Secondly, one has to distinguish between typical and atypical situations to which legal provisions apply. I note that the facts of the instant case are atypical since one of the co-accused was a Cabinet minister who had to be tried by the Supreme Court. The interpretative difficulties seem to have arisen only because of the unusual circumstances of the case. The fact that the legislator was not able to foresee all atypical circumstances, under which the application of the legal provision might become problematic, does not per se disqualify this provision as lacking precision and clarity.

Thirdly, in the instant case problems with the application of the impugned provision were ultimately resolved by the domestic courts. It has not been shown that there is a real risk that such interpretive difficulties will persist in the future in similar cases.

To sum up, when applying the standards of precision, clarity and foreseeability of legislation it is necessary to take into account the inherent features of the legal language. I regret that the majority decided to set standards of good legislation which seem to disregard the teachings of the practical experience of writing legal provisions.