EHRM, 08-03-2006, nr. 59532/00

The case originated in an application (no. 59532/00) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (‘the Convention’) by a Croatian national, Mrs Krstina Blečić (‘the applicant’), on 6 May 2000.

The applicant, who had been granted legal aid, was represented by the International Committee for Human Rights (ICHR), an association based in Sarajevo (Bosnia and Herzegovina), and by Mr T. Vukičević, a lawyer practising in Split. The Croatian Government (‘the Government’) were represented by their Agents, first Ms L. Lukina-Karajković and subsequently Ms Š. Stažnik.

The applicant alleged, in particular, that her rights to respect for her home and to peaceful enjoyment of her possessions had been violated on account of the termination of her specially protected tenancy. She relied on Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention.

The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.

On 30 January 2003 the above complaints were declared admissible by a Chamber of that Section, composed of the following judges: Mr C. L. Rozakis, Mrs F. Tulkens, Mr P. Lorenzen, Mrs N. Vajić, Mr E. Levits, Mr V. Zagrebelsky and Mrs E. Steiner and also of Mr S. Nielsen, then Deputy Section Registrar.

On 29 July 2004 a Chamber of the Section composed of the following judges: Mr C. L. Rozakis, Mr P. Lorenzen, Mr G. Bonello, Mrs F. Tulkens, Mrs N. Vajić, Mrs S. Botoucharova and Mrs E. Steiner and also of Mr S. Quesada, Deputy Section Registrar, held unanimously that there had been no violation of either Article 8 of the Convention or Article 1 of Protocol No. 1 to the Convention.

On 27 October 2004 the applicant requested that the case be referred to the Grand Chamber, in accordance with Article 43 of the Convention and Rule 73 of the Rules of Court. The panel of the Grand Chamber accepted this request on 15 December 2004.

The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24 of the Rules of Court.

Both the applicant and the Government filed written observations on the admissibility and merits of the application.

Third-party comments on the merits were received from the International Centre for the Legal Protection of Human Rights (‘INTERIGHTS’), which had been granted leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2). The parties replied to those comments (Rule 44 § 5). On 26 April 2005 the Organisation for Security and Cooperation in Europe (‘the OSCE’), which had been granted leave to intervene in the written procedure before the Chamber, informed the Court that it had nothing further to add to the comments it had already submitted to the Chamber.

A hearing took place in public in the Human Rights Building, Strasbourg, on 14 September 2005 (Rule 59 § 3).

There appeared before the Court:

The Court heard addresses by Ms Stažnik, Lord Lester of Herne Hill Q.C., Mr Diaz and Mr Troop, and replies to questions from the Court.

The Government's preliminary objections

The Government raised two preliminary objections, based respectively on the Court's lack of jurisdiction ratione temporis to entertain the application and the applicant's failure to exhaust domestic remedies.

Holds, by eleven votes to six, that it is unable to take cognisance of the merits of the case.

Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 8 March 2006.

Luzius WILDHABER

President

T.L. EARLY

Deputy to the Registrar

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to the present judgment:

DISSENTING OPINION OF JUDGE LOUCAIDES JOINED BY JUDGES ROZAKIS, ZUPANČIČ, CABRAL BARRETO, PAVLOVSCHI AND DAVID THÒR BJÖRGVINSSON

I disagree with the majority's view that the Court has no jurisdiction to examine the present application as it is incompatible ratione temporis. I believe that in this particular case the interference with the applicant's right to respect for her home and to the peaceful enjoyment of her possessions became complete with the decision of the Constitutional Court dated 8 November 1999, that is to say, after Croatia recognised the competence of the Convention organs to deal with individual petitions based on facts occurring after the Convention and its Protocols came into force in respect of Croatia.

Under the domestic law a specially protected tenancy could only be terminated by a civil action by the provider of the flat ending up in a judgment upholding the claim. A judgment becomes res judicata i.e. a final, unappealable judgment, when it is legally irreversible under the domestic law1.. This result in the present case was brought about by the above decision of the Constitutional Court. Until then each judgment in the relevant civil action was subject to an appeal that could have led to the judgment being quashed. In other words the completion of the civil action which was necessary to terminate the relevant tenancy in the form of a judicial judgment amounting to a final adjudication of the relevant claim (res judicata), consisted of a chain of judicial proceedings up to and including the proceedings before the Constitutional Court.

See, inter alia, Nikitin v. Russia, no. 50178/99, § 37, 15 December 2004: ‘... a decision is final ‘if, according to the traditional expression, it has acquired the force of res judicata. This is the case when it is irrevocable, that is to say when no further ordinary remedies are available or when the parties have exhausted such remedies or have permitted the time-limit to expire without availing themselves of them’’.; and U.S judgment in Faison v. Hudson, 243 Va. 413, 419, 417 S.E.2d 302, 305 (1992): ‘[A] judgment is not final for the purposes of res judicata … when it is being appealed or when the time limits fixed for perfecting the appeal have not expired.’

Therefore, we are not dealing here with an interference with a right under the Convention which had a legal effect independently of any ensuing judicial proceedings issued with the exclusive object of remedying the interference. In the present case the interference was the result of a series of judicial proceedings ending with the decision of the Constitutional Court, which was the only final, irreversible judicial decision in these proceedings.

It is basically for this reason that the present case is distinguishable from those set out in paragraphs 73–76 of the judgment where the interference was complete and effective before any judicial proceedings were issued. In those cases the interference was an autonomous event distinct from judicial proceedings that were subsequently issued with the sole objective of securing an order setting aside the original decision or act constitutive of the interference. Such a distinction cannot be made in the present case. The judicial proceedings in this case consisted of different stages of one and the same civil action which ended in a requirement for the termination of the applicant's tenancy and the consequent interference complained of.

According to the majority the alleged interference was caused by the judgment of the Supreme Court of 15 February 1996: ‘a definitive act which was by itself capable of violating the applicant's rights’. The majority rightly attaches decisive importance to the ‘definitive’ nature of the judgment upholding the claim of the provider of the flat as an essential condition for the establishment of the relevant interference with the applicant's rights. But the judgment of the Supreme Court was not in a legal sense ‘definitive’. It was only conditionally definitive because under the domestic law it could be reversed under the constitutional complaint procedure. The Constitutional Court had power to quash the judgment of the Supreme Court in the same way that the Zadar Country Court reversed on 19 October 1994 the judgment of the Zadar Municipal Court of 18 January 1994 in the relevant proceedings. The majority states that the judgment which amounted to termination of the tenancy was this Zadar Municipal Court judgment. Yet, the relevant statement continues as follows:

‘However, since it was subsequently reversed by the Zadar County Court's judgment of 19 October 1994, it became res judicata on 15 February 1996 when the Supreme Court, by its own judgment, reversed the County Court's judgment. Therefore, it was at that moment — neither before nor afterwards — that the applicant lost her tenancy.’

‘It follows that the alleged interference with the applicant's rights lies in the Supreme Court's judgment of 15 February 1996. The subsequent Constitutional Court decision only resulted in allowing the interference allegedly caused by that judgment — a definitive act which was by itself capable of violating the applicant's rights — to subsist.’

According to this passage, the majority finds that a ‘definitive’ judgment is necessary to constitute an interference with the applicant's rights and concludes that this ‘definitive’ judgment must be the Supreme Court's judgment of 15 February 1996. However it is difficult to understand why they characterise this judgment as ‘definitive’ or ‘res judicata’ in spite of the fact that it could be set aside by the Constitutional Court after a constitutional complaint. Such a constitutional complaint was in fact lodged in this case and gave the Constitutional Court the opportunity to render its decision that completed the interference with the applicant's rights after Croatia had recognised the jurisdiction of the Court. It should be noted here that when it examined the case the Constitutional Court had jurisdiction to apply the European Convention on Human Rights. The application of the Convention by the Constitutional Court in this case could not be considered as amounting to retroactive enforcement of the Convention because the decision of the Constitutional Court was itself part and parcel of the judicial action that resulted in the termination of the applicant's tenancy and therefore part — the final part, in fact — of the interference complained of. It may be useful to add here that the relevant legal principles of the Convention had in any event been part of the domestic law of Croatia since the 1990 Constitution.

It is true that right up to the level of the Constitutional Court each individual appeal or complaint which followed the initial judgment terminating the applicant's tenancy offered the possibility of a reversal of a preceding decision affecting the applicant's rights. However, so long as this series of appeals and complaints were steps in a composite judicial process leading to the decision of the Constitutional Court which alone could be considered the final res judicata amounting to the interference with the applicant's right, the fact that they also functioned as a kind of remedial process in the above sense cannot change their character as a sine qua non condition for the termination of the tenancy in question and, consequently, as a prerequisite for the establishment of the relevant interference.

In so far as the majority emphasised that the Constitutional Court's decision ‘only resulted in allowing the interference allegedly caused by that judgment [the Supreme Court's judgement]… to subsist’, thereby implying that the Constitutional Court's decision was irrelevant to the question under consideration because it did not reverse the Supreme Court's judgment, I believe that the approach is wrong. What really matters is that the Supreme Court's judgment was not ‘definitive’ before Croatia recognised the competence of the Convention organs because a constitutional complaint against that judgment was still pending before the Constitutional Court when such recognition was granted. Further, it is the final Constitutional Court decision which followed that made the relevant civil action irreversible thus terminating the applicant's tenancy and bringing the problem of the interference complained of by the applicant within the competence of our Court.

In the light of the above, I find that the conclusion of the Chamber regarding the temporal jurisdiction of the Court was correct.

DISSENTING OPINION OF JUDGE ZUPANČIČ JOINED BY JUDGE CABRAL BARRETO

I completely agree with what Judge Loucaides spells out in his comprehensive dissenting opinion. Here, I would merely like to expound on one implausible aspect of the majority opinion, which in my opinion deserves special attention.

The substance of the majority opinion, the ruling, is to be found in paragraph 85, which reads:

‘85. It follows that the alleged interference with the applicant's rights lies in the Supreme Court's judgment of 15 February 1996. The subsequent Constitutional Court decision only resulted in allowing the interference allegedly caused by that judgment — a definitive act which was by itself capable of violating the applicant's rights —to subsist. That decision, as it stood, did not constitute the interference. Having regard to the date of the Supreme Court's judgment, the interference falls outside the Court's temporal jurisdiction. [Emphasis added.]’

I wonder what this crucial construct — on which the whole judgment is based — is supposed to mean. Might the implication be that the Constitutional Court has merely omitted to correct the alleged violation, i.e. that the commission of the alleged violation had been perpetrated by the Croatian Supreme Court? Could it be maintained that the Constitutional Court has perpetrated — because it allowed the interference to subsist — a commission by omission?

If so, why is it then that presumably irrelevant omissions of this kind are a domestic remedy that this Court has repeatedly required to be exhausted before it would deal with the case? In German cases, for example, before we deal with them we insist that the constitutional complaint be filed and that the Federal Constitutional Court — in a bare and unmotivated rejection of the complaint —‘allow the interference to subsist’. Are we from now going to maintain that, yes, this is an effective domestic remedy — not only in theory but also in practice!— which must, we insist, always first be exhausted, and, no, the decision of the German Constitutional Court — involving even more omitting, because there we do not even call for reasons to be given for the rejection of the constitutional complaint — did not constitute the interference? ‘Oh,’ we shall say, ‘it merely allowed the interference (of whatever lower instance) to subsist!’

Shall we from now on count the six-month limit from the ‘real’ interference of the lower instance decision, or from the moment when the Constitutional court will have unreceptively, by its mere omission to correct it, ‘allowed the interference to subsist’?

Admittedly, the ratio legis for the requirement of preliminary exhaustion of domestic remedies is different from the ratio legis for the temporal limitation of the Convention's impact. The intent of the former is that the Contracting State be given full domestic opportunity to deal with the violation; the latter simply deals with the non-retroactivity of a contractual obligation. The purpose of the six-month rule, on the other hand, as of all such rules, derives from the need for security and stability of all potentially affected legal interactions. After the momentous decision in Scozzari and Giunta v. Italy this purpose gained considerably in its significance. The consistent practical application of the requirement of exhaustion of domestic remedies and of the six-month rule, however, presupposes a fixed place and time of occurrence. The newly introduced ambiguity concerning the legal meaning of the Constitutional Courts’ rejections of constitutional complaints, although presently only in the ratione temporis consideration, will raise doubts concerning cross-lateral consistency of our case-law. In other words, despite the teleological divergences of different interacting doctrines (the non-exhaustion doctrine, the six-month rule, and the ratione temporis validity) there must be practical consistency in every-day decision-making.

In terms of formal logic, however, the key paragraph 85 of the majority judgment seems to be built upon the distinction between a necessary condition and a cause. To reiterate the majority's conclusion, I think it would be fair to say that they hold that the Constitutional Court's decision was a necessary condition for but not a cause of the violation.

Unfortunately, this distinction is as specious as it is misleading.

We know that single determinative causes as such do not exist. Every event is a consequence of a myriad of necessary conditions, i.e. the ‘caused’ event in question would not have occurred if any one of the sine qua non conditions had been missing. In our everyday discourse we then pick up only one of these necessary conditions as determinative for the outcome — and we call it a ‘cause.’

However, when causal nexus is assessed in law, the label of ‘cause’ is often selectively, if not always arbitrarily, attached to a single necessary condition. The law usually chooses the one necessary condition that critically depends on human conduct and the presumptive free will controlling it. This makes sense inasmuch as every legal sanction targets the free will of the actor and presumes to change it. Often this kind of selective preference for the one critical necessary condition — although this is clearly misleading — is then, as if it were the only pre-condition of the event, called a ‘cause.’

This theory of ‘adequate causation’1.— especially in tort law — is simply a logically misleading disguise for a policy of the legislator or a court intent on blaming and sanctioning the human factor in the causal chain leading to the tort. Rather than speak of a ‘cause,’ since we are in fact dealing with sanctioning policy, it would be more straightforward to say why the particular decision-maker has chosen to focus the blame on that one specific and particular necessary condition (the particular ‘human factor’).

Cf. Francis Bacon ‘In jure non remota causa, sed proxima, spectatur.’ (‘In law the near case is looked to, not the remote one.’[Bac. Max. Reg. 1.]

In our case, it is clear that the violation in question would not have occurred had it been corrected by the Constitutional Court.2. That the Constitutional Court permitted the violation ‘to subsist’ is thus clearly one of the necessary conditions of the violation.3. However, the majority, without telling us why, seem to imply that this necessary condition is not determinative, critical, and relevant for the ultimate violation. In other words, the majority refuse to grant this particular necessary condition the status of a ‘cause.’

It is logically irrelevant on what normative grounds the Constitutional Court’s correction of the violation would have been based. It would not matter if the Constitutional Court of Croatia had found that the situation constituting the violation concerning Mrs. Blečić’s apartment was incompatible with the Croatian Constitution or with e.g. the city of Zadar’s city ordinance: the correction would have been, for our purposes, valid in both cases. (Cf. §§ 77–82 of the majority’s opinion)

Other higher courts, too, when affirming their own lower courts’ decisions sometimes permit their ‘alleged violations to subsist.’ The jurisdictional difference between Constitutional and ordinary higher courts is that the former will let the decision stand unless it collides with the Constitution. In double track jurisdictions the frame of legal reference is different for the Constitutional Courts, i.e. it will sometimes let the lower decision stand even if patently illegal or illogical, because constitutional tests only refer to the Constitution (and constitutional rights enshrined these) and are different from the usual tests of legality and logic. In our case this could mean that ‘allowing the lower decision to subsist’ did not confer on it either legality or logic. It would simply mean that the Supreme Court’s decision did not infringe the constitutional rights of Mrs. Blečić.

The majority, however, do not submit such an argument. If it did, it would be open to the obvious counter-argument that the rights deriving from a Constitution and the rights deriving from the Convention mostly overlap. For this reason, for example, the admissible constitutional complaint represents the last and the best test of violation before the case comes to the European Court of Human Rights in Strasbourg. The only national instance – the court of last resort – specifically authorised to perform legal assessments that are substantially similar to our own tests, are precisely the Constitutional Courts. In other words, the Constitutional Court’s decision is not an inconsequential ‘omission’ because it should have been precisely before the Constitutional Court where the alleged violation ought to have been put right. In my opinion this would even be the case in a one-track jurisdiction, e.g., certiorari in the pick-and-choose system before the United States Supreme Court although the latter is not specifically in charge – as are in fact most of the European Constitutional Courts – of the protection of constitutional rights.

The majority do not say, for example, that the Constitutional Court's decision was simply a passive acquiescence to the merits of the Supreme Court's judgment of 15 February 1996 and as such deserving of no blame. The majority flatly states that the mere ‘allowing of the interference [of the Supreme Court's judgment of 15 February 1996] to subsist’ is not a sufficient condition for the blame. The majority do not explain why in other cases such ‘subsistence’ nevertheless constitutes the necessary condition in terms of exhaustion of domestic remedies. In other words the majority's decision is perhaps circular, because it says in effect that it is not a condition because it is not a sufficient condition, and certainly not transparent.

It is not transparent because in the end we fail to learn why the one necessary condition of the violation, i.e. the Supreme Court's judgment of 15 February 1996, is seen as constitutive of the violation (deserving of blame) — whereas the other necessary condition, i.e. the Constitutional Court's decision, is not. The undisputed fact is that without the Constitutional Court's permission of continued ‘subsistence’ of the Supreme Court's judgment of 15 February 1996, there would be no violation. It logically follows that the Constitutional Court's decision was — all other things being equal — both the necessary and the sufficient condition of the violation.

For the sake of argument, we can also imagine the reverse order of the events. The decision of the Supreme Court could have been in favour of the applicant — say on purely non-Conventional grounds — only for the Constitutional Court to reverse it.1. In that case, presumably, the violation would have occurred after the critical date and the Convention would be applicable ratione temporis. The Grand Chamber would then delve into the merits of this case and perhaps find that there was a violation. Before that, however, one would have to explain why such a reverse order of events would bring the case within the temporal limits of the Convention. Would the majority then say that the Constitutional Court's decision did something positive, rather than merely permit the Supreme Court's judgment to ‘subsist’? If so, what is the crucial difference between the actual and the hypothetical situation? Is it the difference between ‘omission’ and ‘commission’? Those of us used to precise pénaliste reasoning know how tenuous this distinction may be.

Again, it would be logically irrelevant for our purposes on what normative grounds the Constitutional Court chose to reverse it. We find violations in many cases – and often precisely because this is so – where in domestic jurisdiction there is no reference to the Convention.

In the end I am, therefore, constrained to come to the conclusion either that

This will become apparent when Blečić v. Croatia begins to serve as a precedent in future cases. Will the import of this precedent be that the last decision of the national court, which does not reverse the penultimate decision — but merely permits it to ‘subsist’— may count as a required domestic remedy, but does not count as a real decision bringing the case within the temporal limits of the Convention?

Apart from all that, I am convinced that as far as the merits of the case are concerned this is not the end of the matter. In the case file there are indications that there may be thousands of similar cases. Sooner or later they will reach this Court.

DISSENTING OPINION OF JUDGE CABRAL BARRETO

(Translation)

1. I regret that I am unable to agree with the majority's finding that, for lack of jurisdiction ratione temporis, the Court cannot examine the merits of the case.

On that point I join the dissenting opinions of my colleagues Judges Zupančič and Loucaides.

I wonder moreover what will be regarded as the final domestic decision after this judgment for the purpose of fixing the dies a quo for the six-month period in which applicants must lodge an application and whether they will have to take their case to a constitutional court in order to exhaust domestic remedies once a supreme court's decision has become res judicata.

I am very curious to see how the case-law is going to develop on those questions.

2. As it happens, the question which has induced me to produce this opinion is a relatively minor one in the present case, but it could have unforeseeable consequences for orderly judicial procedure before our Court: are the Government estopped from raising for the first time before the Grand Chamber a preliminary objection that the Court lacks jurisdiction ratione temporis (see paragraph 64 of the judgment)?

3. I would first like to make it clear that I agree entirely with the majority when they observe: ‘the Grand Chamber is not precluded from deciding questions concerning the admissibility of an application under Article 35 § 4 of the Convention’ (see paragraph 65 of the judgment).

I would go even further: in the present case, given that the Chamber had examined of its own motion its jurisdiction ratione temporis, the Grand Chamber was in a sense likewise obliged to look into the matter of its own motion.

But it is one thing to examine a question of one's own motion and quite another to do so at the request of the parties.

It seems to me that when the Court rules on the admissibility or the merits of an application it implicitly answers all related questions, whether that means the Court's jurisdiction to entertain the application or the specific questions it raises, such as exhaustion of domestic remedies or compliance with the six-months rule.

In other words, in so doing the Court is implicitly affirming that it has jurisdiction.

As paragraph 67 of the judgment says, ‘the Court … has to satisfy itself that it has jurisdiction in any case brought before it, and is therefore obliged to examine the question of its jurisdiction at every stage of the proceedings’.

4. If that is the case, what is the point of asking whether the Government were or were not estopped from raising the preliminary question of the Court's jurisdiction?

I believe that it is possible to draw the following distinction in this connection:

if the Government are estopped, the Court need not examine the question in depth, since it can affirm its jurisdiction implicitly, as it does in all its judgments, through a declaration of admissibility and a judgment on the merits;

if, on the other hand, the Government are not estopped and raise a preliminary objection, the Court is required to consider their arguments in order to decide whether these should be accepted or rejected.

That is where, in my opinion, the interest of the question lies, and it is a question of decisive importance not only for the orderly conduct of the Court's business but also for the scale of the Court's workload, because while a decision that the Government are estopped from raising an objection does not call for very much intellectual effort or substantive reasoning, it is quite significantly more difficult, in principle, to analyse the arguments put forward by the Government in order to decide whether these should be accepted or rejected.

Hence the importance of the question.

5. For my part, I consider that if the respondent Government wish to raise a plea of inadmissibility, they must do so, unless prevented by exceptional circumstances, in their written or oral observations on the admissibility of the application.

That, I might mention here, is what is explicitly provided in Rule 55 of the Rules of Court, which would become a dead letter if the very broad interpretation adopted by the majority were to prevail.

What is more, Rule 55 reflects the consistent practice of both the Commission and the Court.

6. The Commission always unequivocally said that preliminary objections were to be considered estopped unless raised before the decision on admissibility.

The former Court endorsed that line in its judgment in the De Wilde, Ooms and Versyp case of 18 June 1971, Series A no. 12, pp. 29–31, §§ 47–55. Paragraph 54 of the judgment reads as follows:

‘54. It is in fact usual practice in international and national courts that objections to admissibility should as a general rule be raised in limine litis. This, if not always mandatory, is at least a requirement of the proper administration of justice and of legal stability. The Court itself has specified in Rule 46, paragraph 1, of its Rules, that ‘a preliminary objection must be filed by a Party at the latest before the expiry of the time-limit fixed for the delivery of the first pleading’.’

‘Doubtless, proceedings before the Court are not the same as those which took place before the Commission and usually the parties are not even the same; but they concern the same case and it results clearly from the general economy of the Convention that objections to jurisdiction and admissibility must, in principle, be raised first before the Commission to the extent that their character and the circumstances permit (compare the Stögmüller judgment of 10 November 1969, Series A, pp. 41–42, paragraph 8, and the Matznetter judgment of the same date, Series A, p. 32, paragraph 6).’

The new Court confirmed those principles in its Freedom and Democracy Party (ÖZDEP) judgment, ECHR 1999-VII, § 25:

‘The Court notes that the Government did not raise before the Commission the preliminary objection they have now made under Article 34 of the Convention that ÖZDEP did not have standing as a victim. Consequently, an estoppel should arise against them (see, among other authorities, the Zana v. Turkey judgment of 25 November 1997, Reports of Judgments and Decisions 1997-VII, p. 2546, § 44). In its report, however, the Commission examined that issue of its own motion. If an estoppel was nonetheless held to arise against the Government, they would be deprived of an opportunity to make representations on a point that was considered by the Commission of its own motion and was the subject of argument before the Court. That appears inconsistent with the principles of adversarial procedure and equality of arms. Consequently, the Government must be permitted to raise the objection concerned even though it was made out of time.’

If I have correctly interpreted that judgment, there is estoppel unless the Chamber has examined of its own motion the question which forms the basis of the preliminary objection concerned.

In accordance with that interpretation, the principles of adversarial procedure and equality of arms require the Government to be allowed to present argument on the question for the first time before the Grand Chamber.

The Court reaffirmed the above line of case-law in its Dikme judgment of 11 July 2000, ECHR 2000-VII, §§ 44 and 45:

‘44. The Court notes at the outset that it has jurisdiction to take cognisance of preliminary pleas of this kind if and in so far as the respondent State has already raised them before the Commission to the extent that their nature and the circumstances permitted; if that condition is not satisfied, the Government are estopped from raising the matter before the Court (see, among many other authorities, the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, pp. 29–31, §§ 47–55, and the Ciulla v. Italy judgment of 22 February 1989, Series A no. 148, p. 14, § 28). In the instant case that condition is clearly not satisfied in respect of any of the Government's pleas of inadmissibility under Article 35 of the Convention (see paragraphs 42 and 43 above).’

‘The Court observes that the Government were twice granted an extension of the time allowed for submitting observations on the application's admissibility. However, they had not commented on the matter by the time the Commission adopted its admissibility decision on 17 October 1994.’

‘45. Admittedly, the reason prompting an objection to admissibility sometimes comes to light after the decision accepting the application: for example, a reversal of domestic case-law may disclose the existence of a hitherto unknown remedy or an applicant may formulate a new complaint whose admissibility the Government have not yet had the opportunity of contesting (see, among other authorities, the Artico v. Italy judgment of 13 May 1980, Series A no. 37, pp. 13–14, § 27). Similarly, the concern to observe the principles of adversarial procedure and equality of arms may make it necessary to permit the Government to raise an objection out of time, for example where the Commission examines of its own motion a preliminary issue that was not raised before it by the respondent State (see Freedom and Democracy Party (ÖZDEP) v. Turkey[GC], no. 23885/94, § 25, ECHR 1999-VIII). However, since the instant case does not fall within that category, the Government are estopped from raising the objections in question.’

In this case-law of the Court, attention should however be drawn to this or that particularity relating to certain conditions of admissibility, especially those concerning the exhaustion of domestic remedies and compliance with the six-months rule.

Compliance with the six-months rule is one of the conditions of admissibility which the Court is required to examine even where the respondent Government have said nothing about it.

In its Walker v the United Kingdom decision of 25 January 2000 (cited in paragraph 68 of the judgment), the Court had this to say on the matter:

‘… the [six-months] rule, in reflecting the wish of the Contracting Parties to prevent past decisions being called into question, after an indefinite lapse of time, serves the interests not only of the respondent Government but also of legal certainty as a value in itself. It marks out the temporal limits of supervision carried out by the organs of the Convention and signals to both individuals and State authorities the period beyond which such supervision is no longer possible (see X v. France, application no. 9587/81, Commission decision of 13 December 1982, DR 29, pp. 239–40, §§ 13 and 16; and K. v. Ireland, application no. 10416/83, Commission decision of 17 May 1984, DR 38, p. 160, § 6).’

‘It is therefore not open to the Court to set aside the application of the six-months rule solely because a Government have not made a preliminary objection based on it.’

On the other hand, where the Government have not pleaded non-exhaustion of domestic remedies at the admissibility stage they are estopped from doing so later; they are deemed to have waived the right to raise the question (see, among other authorities, Nikolova v. Bulgaria, judgment of 25 March 1999, ECHR 1999-II, § 44).

In conclusion, I would like to repeat what the Court said in Odièvre v. France, ECHR 2003-III, § 22, and Azinas v. Cyprus, ECHR 2004-III:

‘[E]ven at the merits stage and subject to Rule 55 of the Rules of Court, the Court may reconsider a decision to declare an application admissible where it concludes that it should have been declared inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Convention (my emphasis).’

7. From the foregoing I draw two conclusions:

But perhaps that is what the majority meant to say when they spoke, in paragraph 69 of the judgment, of a ‘live issue that must be examined’.

I wait with interest to see whether practice will confirm that that is so.