40
GÄFGEN v. GERMANY JUDGMENT
3. The Court’s assessment
141. The Grand Chamber has jurisdiction to examine the preliminary
objection as the Government previously raised that same objection before
the Chamber in their observations on the admissibility of the application
(see paragraph 84 of the Chamber judgment), in accordance with Rules 54
and 55 of the Rules of Court (see N.C. v. Italy [GC], no. 24952/94, § 44,
ECHR 2002-X; Azinas v. Cyprus [GC], no. 56679/00, §§ 32 and 37, ECHR
2004-III; and Sejdovic v. Italy [GC], no. 56581/00, § 41, ECHR 2006-II).
142. The Court reiterates that the purpose of Article 35 is to afford the
Contracting States the opportunity of preventing or putting right the
violations alleged against them before those allegations are submitted to it
(see, inter alia, Civet v. France [GC], no. 29340/95, § 41, ECHR 1999-VI).
While Article 35 § 1 of the Convention must be applied with some degree
of flexibility and without excessive formalism, it does not require merely
that applications should be made to the appropriate domestic courts and that
use should be made of effective remedies designed to challenge decisions
already given. It normally requires also that the complaints intended to be
brought subsequently before the Court should have been made to those
same courts, at least in substance and in compliance with the formal
requirements and time-limits laid down in domestic law (see, among other
authorities, Cardot v. France, 19 March 1991, § 34, Series A no. 200, and
Elçi and Others v. Turkey, nos. 23145/93 and 25091/94, §§ 604 and 605,
13 November 2003).
143. Consequently, domestic remedies have not been exhausted when an
appeal is not accepted for examination because of a procedural mistake by
the applicant. However, non-exhaustion of domestic remedies cannot be
held against him if, in spite of his failure to observe the forms prescribed by
law, the competent authority has nevertheless examined the substance of the
appeal (compare, inter alia, Metropolitan Church of Bessarabia and Others
v. Moldova (dec.), no. 45701/99, 7 June 2001; Skałka v. Poland (dec.),
no. 43425/98, 3 October 2002; Jalloh v. Germany (dec.), no. 54810/00,
26 October 2004; and Vladimir Romanov, cited above, § 52).
144. The Court observes that the applicant complained before it that his
criminal trial had been unfair owing to the admission into trial of items of
evidence obtained as a direct result of confessions extracted from him. He
raised this issue, specifically, before the Regional Court, in particular in his
preliminary application of 9 April 2003 seeking a declaration that the use in
the criminal proceedings of all items of evidence which had become known
to the investigation authorities because of the statements unlawfully
extracted was prohibited (see paragraph 25 above). The Court notes that in
his appeal on points of law to the Federal Court of Justice, the applicant
referred to that application and submitted a full copy of it to that court (see
paragraph 37 above). The Federal Court of Justice itself dismissed his
appeal as ill-founded without giving reasons for its decision. In these
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