EUROPEAN COMMISSION OF HUMAN RIGHTS
SECOND CHAMBER
Application No. 21335/93
Christopher Ian SCOTT
against
Spain
REPORT OF THE COMMISSION
(adopted on 4 July 1995)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1 - 15). . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2 - 4). . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5 - 10) . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 11 - 15). . . . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 16 - 32) . . . . . . . . . . . . . . . . . . . .3
A. The particular circumstances of the case
(paras. 16 - 28). . . . . . . . . . . . . . . . . .3
B. Relevant domestic law
(paras. 29 - 32). . . . . . . . . . . . . . . . . .4
III. OPINION OF THE COMMISSION
(paras. 33 - 61) . . . . . . . . . . . . . . . . . . . .7
A. Complaint declared admissible
(para. 33). . . . . . . . . . . . . . . . . . . . .7
B. Points at issue
(para. 34). . . . . . . . . . . . . . . . . . . . .7
C. Compliance with Article 5 paras. 1 (c) and 3
of the Convention
(paras. 35 - 59). . . . . . . . . . . . . . . . . .7
1. The lawfulness of the applicant's detention on remand
(paras. 36 - 45). . . . . . . . . . . . . . . . . .7
CONCLUSION
(para. 46). . . . . . . . . . . . . . . . . . . . .9
2. The length of the applicant's deprivation of liberty
(paras. 47 - 58). . . . . . . . . . . . . . . . . .9
a. Period to be considered under Article 5 para. 3
of the Convention
(paras. 47 - 49) . . . . . . . . . . . . . . .9
b. Criteria for assessing the reasonableness
of the length of detention on remand
(paras. 50 - 52) . . . . . . . . . . . . . . 10
c. The present case
(paras. 53 - 58) . . . . . . . . . . . . . . 10
CONCLUSION
(para. 59). . . . . . . . . . . . . . . . . . . . 11
D. Recapitulation
(paras. 60 - 61). . . . . . . . . . . . . . . . . 11
SEPARATE OPINION OF Mr. F. MARTINEZ . . . . . . . . . . . . 12
SEPARATE OPINION OF Mr. I. CABRAL BARRETO . . . . . . . . . 13
DISSENTING OPINION OF Mr. S. TRECHSEL
PARTIALLY JOINED BY MM. J.-C. SOYER and M.A. NOWICKI. . . . 14
APPENDIX: DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION. . . . . . . . . 15
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a British citizen, born in 1958. At the time
of the introduction of the application, the applicant was detained at
the Santa Cruz de Tenerife prison in Spain. He was represented before
the Commission by Mr. S. Jakobi, a lawyer practising in Surrey.
3. The application is directed against Spain. The respondent
Government were represented by their agent, Mr. J. Borrego Borrego, of
the Ministry of Justice.
4. The case concerns the lawfulness and length of the applicant's
detention on remand. It raises issues under Article 5 paras. 1 (c) and
3 of the Convention.
B. The proceedings
5. The application was introduced on 2 September 1992 and registered
on 4 February 1993.
6. On 13 October 1993 the Commission (Second Chamber) decided,
pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give
notice of the application to the respondent Government and to invite
the parties to submit written observations on its admissibility and
merits.
7. The Government's observations were submitted on 24 January 1994
after an extension of the time-limit fixed for this purpose. The
applicant replied on 8 November 1994 also after an extension of the
time-limit. On 18 May 1994, the Commission granted the applicant legal
aid for the representation of his case.
8. On 22 February 1995 the Commission declared admissible the
applicant's complaints under Article 5 paras. 1 (c) and 3 of the
Convention concerning the lawfulness and length of his detention on
remand. It declared inadmissible the remainder of the application.
9. The text of the Commission's decision on admissibility was sent
to the parties on 9 March 1995 and they were invited to submit such
further information or observations on the merits as they wished. The
Government submitted observations on 26 April 1995.
10. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
11. The present Report has been drawn up by the Commission (Second
Chamber) in pursuance of Article 31 of the Convention and after
deliberations and votes, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
S. TRECHSEL
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
12. The text of this Report was adopted on 4 July 1995 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
13. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
14. The Commission's decision on the admissibility of the application
is appended to the Report.
15. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
16. On 5 March 1990, the applicant was arrested in Puerto de la Cruz,
Tenerife, under suspicion of rape of a Finnish citizen, and detained
on remand for that reason (prisión provisional). On 7 March 1990, in
the presence of a lawyer and with an interpreter, the applicant made
a statement to the police. When the records were consulted, it was
found that an International Detention Order for murder had been issued
in respect of the applicant on 31 January 1990 by a judge at Birmingham
Crown Court. On the same day, the applicant was brought before a
judge. On 8 March 1990, assisted by a lawyer and with an interpreter,
the applicant made a statement to an investigating judge (juez de
instrucción) of Puerto de la Cruz concerning the alleged rape. By
decision of 8 March 1990 (auto de prisión provisional), the
investigating judge remanded the applicant in custody on the ground
that he was suspected of rape and falsification of documents in Spain
and pending the investigation for alleged murder of his father in the
United Kingdom referred to in the International Detention Order.
17. On 23 March 1990, the Central Investigating Judge of the
Audiencia Nacional authorised the detention on remand of the applicant
following a request for extradition made by the British authorities.
By decision (auto) of 22 February 1991, the Criminal Chamber of the
Audiencia Nacional ordered the extradition of the applicant to the
United Kingdom, to be judged for the facts referred to in the
International Detention Order of 31 January 1990. This extradition
would only be executed after the applicant had served any outstanding
sentence that might eventually be imposed on him in Spain for the rape
case.
18. The applicant lodged an appeal (súplica) with the plenary of the
Audiencia Nacional against the decision to grant extradition. By
decision of 28 May 1991, the appeal was dismissed.
19. On 25 June 1990, an International Letter of Request for Judicial
Cooperation was sent to the relevant authority in Finland in order to
take a further statement from the alleged victim of the rape.
20. By decision of 7 March 1991, the investigating judge of Puerto
de la Cruz decided to prolong the applicant's detention on remand under
Article 504 para. 4 of the Code of Criminal Procedure concerning the
rape case, taking also into account that the applicant's extradition
was pending.
21. By decision of 6 March 1992 given by the investigating judge of
Puerto de la Cruz, two years after the applicant had been remanded in
custody, the applicant was released in connection with the rape case,
as required by Article 504 of the Code of Criminal Procedure. He was
however kept in prison pending the determination of the extradition
case and detained in various prisons in Spain.
22. On 17 March 1992, the Audiencia Nacional, considering the
23 March 1990 as the date of the beginning of the applicant's detention
for the extradition case, decided to extend his detention on remand
under Article 504 para. 4 of the Code of Criminal Procedure and
Article 10 para. 3 of the Passive Extradition Law, for a period not
exceeding two years, that is to say until 23 March 1994.
23. The applicant lodged an appeal against the decision of the
Audiencia Nacional of 17 March 1992. On 18 June 1992, the Audiencia
Nacional dismissed the applicant's appeal (súplica) on the ground that
he had been remanded in the extradition case on 23 March 1990,
independently of the applicant's former detention for a different
matter.
24. On 30 November 1992, the applicant lodged a "de amparo" appeal
with the Constitutional Court against the decisions of 17 March 1992
and 18 June 1992 of the Audiencia Nacional concerning his detention on
remand in the extradition case. The appeal was rejected by decision
of 6 May 1993. As to the merits, the Constitutional Court stated that
the applicant had been remanded in the extradition case on
23 March 1990, so that the decision of the Audiencia Nacional of
17 March 1992 to extend detention for two more years as of that date
was correct, as the former period the applicant had spent in prison did
not have any relation to the new detention.
25. Meanwhile, by decision (auto de procesamiento) of
2 February 1993, the investigating judge of Puerto de la Cruz had
formally charged the applicant with rape (Article 429 of the Criminal
Code) and falsification of documents (Article 309 of the Criminal
Code).
26. On 29 April 1993, the International Letter of Request for
Judicial Cooperation to obtain the statement of the victim of the rape
allegedly committed in Spain was finally executed. On 25 August 1993,
the applicant's detention was again ordered in the rape case. The
applicant was again transferred to Tenerife prison.
27. By decision of the Audiencia Provincial of Santa Cruz de Tenerife
of 21 March 1994, the applicant was acquitted of the charge of rape
(Article 429 of the Criminal Code) and sentenced to a penalty of four
months' imprisonment for falsification of documents.
28. On 27 March 1994, the applicant was handed over to the British
authorities following the International Detention Order and the
decision of the Audiencia Nacional of 23 March 1990 to grant
extradition.
B. Relevant domestic law
29. Article 17 of the Spanish Constitution secures the right to
liberty and security of person and sets out the conditions under which
a person may be deprived of his liberty. Pursuant to para. 4 of this
provision a "habeas corpus" procedure shall be provided for by law,
which shall also determine the maximum duration of detention on remand.
(Original)
Código Penal, Artículo 429
30. "La violación será castigada con la pena de reclusión menor
...".
(Translation)
Criminal Code, Article 429
"Rape shall be liable to the penalty of "reclusión menor
...".
(Original)
Ley de Enjuiciamiento Criminal, Artículo 504 par. 4
31. "La situación de prisión provisional no durará más de tres
meses cuando se trate de causa por delito al que
corresponda pena de arresto mayor, ni más de un año cuando
la pena sea de prisión menor o de dos años cuando la pena
sea superior. En estos dos últimos casos, concurriendo
circunstancias que hagan prever que la causa no podrá ser
juzgada en estos plazos y que el inculpado pudiera
sustraerse a la acción de la justicia, la prisión podrá
prolongarse hasta dos y cuatro años, respectivamente. La
prolongación de la prisión provisional se acordará mediante
auto, con audiencia del inculpado y del Ministerio Fiscal."
(Translation)
Code of Criminal Procedure, Article 504 para. 4
"Detention on remand shall not last more than three months
when it relates to a case where the established penalty is
that of "arresto mayor", and not more than one year when
the penalty is "prisión menor" or two years in case of a
more severe penalty. In these two latter cases, when there
are circumstances which indicate that the case will not be
dealt with within those time-limits and that the detainee
might try to evade justice, the detention may be extended
up to two and four years, respectively. The extension of
the detention will be pronounced by a decision (auto) after
a hearing of the detainee and the public prosecutor."
(Original)
Ley de extradición pasiva (Ley 4/85 de 21 de Marzo de 1985)
Artículo 10 pár. 3
32. "El límite máximo de la prisión provisional del reclamado
y los derechos que corresponden al detenido por causa de
extradición se regirán en lo previsto por esta Ley, por los
preceptos correspondientes de la Ley de Enjuiciamiento
Criminal."
(Translation)
Passive Extradition Law (Law 4/1985, of 21 March 1985)
Article 10 para. 3
" The maximum time-limit of the detention on remand of the
requested person and the rights regarding the detainee
awaiting extradition will be determined, insofar as
established in this Law, by the relevant provisions of the
Code of Criminal Procedure."
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
33. The Commission has declared admissible the applicant's complaint
concerning the lawfulness and length of his detention on remand.
B. Points at issue
34. The points at issue are accordingly:
- whether the applicant's detention on remand was "lawful" within
the meaning of Article 5 para 1 (c) (Art. 5-1-c) of the Convention;
- whether the length of the applicant's detention on remand was
in conformity with the requirement of "reasonable time" in Article 5
para. 3 (Art. 5-3) of the Convention.
C. Compliance with Article 5 paras. 1 (c) (Art. 5-1-c) and 3
(Art. 3) of the Convention
35. The relevant provisions of Article 5 (Art. 5) of the Convention
provide as follows:
"1. Everyone has the right to liberty and security of
person. No one shall be deprived of his liberty save in
the following cases and in accordance with a procedure
prescribed by law:
(...)
c. the lawful arrest or detention of a person
effected for the purpose of bringing him before
the competent legal authority on reasonable
suspicion of having committed an offence or when
it is reasonably considered necessary to prevent
his committing an offence or fleeing after
having done so ;
(...)
f. the lawful arrest or detention of a person ...
against whom action is being taken with a view
to deportation or extradition.
(...)
3. Everyone arrested or detained in accordance with the
provisions of paragraph 1 (c) of this Article ... shall be
entitled to trial within a reasonable time or to release
pending trial. Release may be conditioned by guarantees to
appear for trial."
1. The lawfulness of the applicant's detention on remand
36. The Commission considers that the issues are whether the
applicant's detention, notably after 8 March 1992, was "in accordance
with a procedure prescribed by law" and was "lawful" within the meaning
of Article 5 para. 1 (c) (Art. 5-1-c).
37. The following principles emerge from the case-law of the
Convention organs. The words "in accordance with a procedure
prescribed by law" and "lawful" refer essentially to domestic
legislation and establish the need to follow the procedure laid down
by it. A "lawful" detention presupposes conformity with the domestic
law but also, as confirmed by Article 18 (Art. 18), conformity with the
purpose of the restrictions authorised by Article 5 para. 1 (Art.5-1) ;
it is required in respect of both the ordering and the enforcement of
the measures involving deprivation of liberty. A detention failing to
conform to its legal purpose is necessarily unlawful and therefore
arbitrary; consequently, it cannot be deemed to comply with the spirit
of the Convention. The list of exceptions to the right to liberty
secured in Article 5 para. 1 (Art. 5-1) is an exhaustive one and only
a narrow interpretation of those exceptions is consistent with the aim
and purpose of that provision, namely to ensure that no one is
arbitrarily deprived of his or her liberty (see. Eur. Court H.R.,
Winterwerp judgment of 24 October 1979, Series A no. 33, pp. 16-17,
paras. 37 and 39 and Van der Leer v. the Netherlands judgment of
21 February 1990, Series A no. 170-A, p. 12, para. 22). For a
deprivation of liberty to be lawful under Article 5 para. 1 (Art. 5-1),
it must at any given moment fall within one of the categories of arrest
or detention set out in sub-paragraphs (a) to (f) of that paragraph
(No. 11256/84, Dec. 5.9.88, D.R. 57 p. 47).
38. For a detention to be "in accordance with a procedure prescribed
by law", it has to comply with the relevant procedure under national
law, which must itself be in conformity with the Convention and the
general principles expressed or implied therein. The notion underlying
the term in question is one of fair and proper procedure, namely that
any measure depriving a person of his liberty should be ordered and
executed by an appropriate authority and should not be arbitrary
(above-cited Winterwerp judgment, p. 19, para. 45).
39. Moreover, it is in the first place for the national authorities,
notably the courts, to interpret and apply the domestic law (above-
cited Winterwerp judgment, p. 20, para. 46). As regards the conformity
with domestic law, the "lawful" character of a detention covers
procedural as well as substantive rules (same judgment, p. 17,
para. 39).
40. The applicant contends that although, technically, his continued
detention after 6 March 1992 may have been based on the pending
extradition, the failure to extradite him was the result of the delay
in proceeding with the rape charge. He considers that the
justification for his ongoing detention was the rape charge and not the
fact that he was awaiting extradition. According to the applicant, he
could not be extradited as a result of the delay and/or failure of the
respondent State to either proceed with the prosecution for rape or
alternatively dismiss the charge.
41. The Government submit that the first period of detention
concerning the criminal case (from 8 March 1990 to 6 March 1992) did
not exceed the two year period laid down in Article 504 of the Code of
Criminal Procedure. As regards the extradition case, the Government
state that the applicant was only detained on 23 March 1990, this
detention being extended from 17 March 1992 up to the legal maximum of
four years.
42. The Commission recalls that the applicant was detained on
8 March 1990 on the ground that he was suspected of rape and
falsification of documents, and because the investigation into the
alleged murder of his father referred to in the International Detention
Order, which constituted the reason for the extradition, was pending
(see para. 16).
43. The Commission notes however that, by decision of 17 March 1992,
the Audiencia Nacional, considering 23 March 1990 to be the relevant
date of the beginning of the applicant's detention on remand for the
purposes of Article 504 para. 4 of the Code of Criminal Procedure and
Article 10 para. 3 of the Passive Extradition Law, decided to extend
the detention for a period not exceeding two years, that is to say not
longer than until 23 March 1994.
44. In this respect, the Commission notes that the Constitutional
Court confirmed that the relevant period of detention should be
calculated from 23 March 1990 and that the applicant's detention was
therefore in conformity with Spanish law.
45. Having regard to the interpretation and application of Spanish
law by the national courts in the present case, which cannot be
regarded as arbitrary or unreasonable, the Commission is satisfied that
the applicant's detention for the purpose of criminal proceedings being
brought against him in Spain was ordered in accordance with a procedure
prescribed by law and was lawful within the meaning of Article 5
para. 1 (c) (Art. 5-1-c) of the Convention.
CONCLUSION
46. The Commission concludes, by 10 votes to 3, that there has been
no violation of Article 5 para. 1 (Art. 5-1) of the Convention.
2. The length of the applicant's deprivation of liberty
a. Period to be considered under Article 5 para. 3 (Art. 5-3)
of the Convention
47. The applicant was detained on remand on 8 March 1990. He was
kept in detention until 27 March 1994, when he was handed over to the
British authorities.
48. The applicant was detained partly in connection with the criminal
charges brought against him in Spain and partly for the purpose of his
extradition to the United Kingdom. Article 5 para. 3 (Art. 5-3) is
only applicable to detention under Article 5 para. 1 (c) (Art. 5-1-c),
i.e. in the present case only to such detention as was imposed in
connection with the criminal proceedings in Spain. The relevant
periods were from 8 March 1990 to 6 March 1992 and from 25 August 1993
to 21 March 1994. The total duration was therefore approximately two
years seven months.
49. Between the two periods of detention on remand, i.e. from 6 March
1992 to 25 August 1993, the applicant was detained for the purpose of
his extradition to the United Kingdom.
b. Criteria for assessing the reasonableness of the length of
detention on remand
50. The Commission recalls that it falls in the first place to the
national judicial authorities to ensure that, in a given case, the pre-
trial detention of an accused person does not exceed a reasonable time
(cf. Eur. Court H.R., Kemmache judgment of 27 November 1991, Series A
no. 218, p. 23, para. 45).
51. In determining whether or not in a given case the detention of
an accused person exceeds a reasonable time, it is for the national
judicial authorities to seek all the facts arguing for or against the
existence of a genuine requirement of public interest justifying a
departure from the rule of respect for individual liberty. It is
essentially on the basis of the reasons given in the decisions on the
applications for release pending trial, and of the facts mentioned by
the detained person in his appeals, that the question whether or not
there has been a violation of the Convention must be decided
(Eur. Court H.R., Neumeister judgment of 27 June 1968, Series A no. 8,
p. 37, para. 5).
52. The persistence of a reasonable suspicion that the person
arrested has committed an offence is a sine qua non condition for the
lawfulness of the continued detention, but after a certain lapse of
time it no longer suffices. It must then be established whether the
other grounds given by the judicial authorities continued to justify
the deprivation of liberty. Where such grounds are "relevant" and
"sufficient", it must also be ascertained whether the competent
national authorities displayed "special diligence" in the conduct of
the proceedings (Eur. Court H.R., Tomasi judgment of 27 August 1992,
Series A no. 241-A, p. 35, para. 84). Article 5 para. 3 (Art. 5-3) of
the Convention implies that there must be special diligence in the
conduct of the prosecution of persons charged and detained. The
Commission further notes that Article 5 para. 3 (Art. 5-3) expressly
refers to the possibility for the accused under certain circumstances
to be released from pre-trial detention under guarantees to appear for
trial.
c. The present case
53. The applicant submits that the criminal case was not complicated
and that there was no justification for the length of this process,
despite the fact that the alleged victim lived in Finland, and that
extra diligence should have been exercised as the applicant was under
an International Detention Order. According to the applicant, his case
should not have taken four years to come to trial.
54. The Government submit that the length of the applicant's
detention on remand was justified, given that he was charged with a
serious offence for which a severe prison sentence could be imposed.
The Government state that there was a risk throughout the applicant's
detention on remand that he would abscond, taking into account also the
serious crime which was the basis for the application for extradition.
55. The Commission notes that, in addition to his detention on
remand, the applicant was also detained for nearly one and a half year
for the purpose of his extradition. Although Article 5 para. 3 (Art. 5-
3) of the Convention is not applicable to the latter period of
detention, the fact that the applicant was in fact being deprived of
his liberty during a very long consecutive period imposed on the
Spanish authorities a special duty of diligence to bring his detention
on remand to an end without further delay.
56. The Commission notes that the investigation regarding the rape
case did not require an extensive investigation. It is true that the
alleged victim had to be heard and that this required a considerable
time in view of the fact that an International Letter of Request for
Judicial Cooperation had to be sent to the competent Finnish authority
and that the victim had to be heard in Finland. On the other hand, it
notes that the International Request to obtain the statement of the
victim of the alleged rape was executed only on 29 April 1993 i.e.
almost three years after having been issued, and after the applicant's
first period of detention on remand had terminated on 6 March 1992 as
required by Article 504 of the Criminal Code.
57. The Commission notes that the case against the applicant does not
appear to have been of great complexity. Special measures should have
been contemplated in order to avoid that the applicant remained for
such a long time in detention awaiting the execution of a letter
rogatory.
58. In the circumstances of the present case, the Commission
considers that it has not been established that the applicant's period
of detention was in conformity with the "reasonable time" requirement
in Article 5 para. 3 (Art. 5-3) of the Convention.
CONCLUSION
59. The Commission concludes, by 12 votes to 1, that there has been
a violation of Article 5 para. 3 (Art. 5-3) of the Convention.
D. Recapitulation
60. The Commission concludes, by 10 votes to 3, that there has been
no violation of Article 5 para. 1 (Art. 5-3) of the Convention
(para. 46).
61. The Commission concludes, by 12 votes to 1, that there has been
a violation of Article 5 para. 3 (Art. 5-3) of the Convention
(para. 59).
Secretary President
to the Second Chamber of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
(Or. French)
SEPARATE OPINION OF Mr. F. MARTINEZ
I have voted in favour of finding a violation of Article 5
para. 3 of the Convention, but that was on the basis of a draft report
which took account of the entire period during which the applicant was
deprived of his liberty.
He was arrested on 5 March 1990 and remained in detention on
remand until 27 March 1994, i.e. four years and twenty-three days.
To my mind, four years and twenty-three days in detention is too
long! A fundamental right, such as freedom of the human being, must
be respected above all others and the issue as to whether there has
been a violation of that freedom should be determined on the basis of
the actual period of deprivation of freedom and not by subtle thought
processes.
To tell the applicant that he was detained for only two years and
that he was free between 6 March 1992 and 25 August 1993, but detained
again from that date until 21 March 1994, when in actual fact he was
in prison throughout that period, is bordering on the sarcastic.
That is the view of the majority, however.
Moreover, if the entire period during which the applicant was
actually in prison for one reason or another were not taken into
account, I would not conclude that there has been a violation of
Article 5 para. 3 of the Convention in this case.
((Or. French)
SEPARATE OPINION OF Mr. I. CABRAL BARRETO
Much to my regret, I cannot share the opinion of the majority
regarding the period to be taken into account under Article 5 para. 3.
As far as I am concerned, the period to be examined should be the
total period during which the applicant was detained in connection with
the criminal proceedings and for the purpose of his extradition.
If I were to consider only the period during which he was
detained in connection with the criminal proceedings, I would find it
difficult to conclude that there has been a violation.
(Or. English)
DISSENTING OPINION OF Mr. S. TRECHSEL
PARTIALLY JOINED BY MM. J.-C. SOYER and M.A. NOWICKI
(insofar as it concerns the finding
of a violation of Article 5 para. 1 of the Convention)
In the present case I have come to the conclusion, contrary to
the majority, that there has been a violation of Article 5 para. 1 and
that no separate issue arises under Article 5 para. 3.
The facts, in my view, fall to be interpreted in the following
way: The applicant was arrested on the suspicion of rape. There was
also a warrant of arrest with a view to extradition. Initially, his
detention could therefore be justified both under paras. 1 (c)
and 1 (f) of Article 5.
On 22 February 1991 the Criminal Chamber of the Audiencia
Nacional ordered the extradition of the applicant to the United
Kingdom. From that moment on, there was no further justification under
para. 1 (f) to detain the applicant "with a view to extradition",
except for the few days required to organize the applicant's departure.
Due to the limitations on the duration of detention on remand
provided for under Spanish law, the applicant was "released" on
6 March 1992. However, he in fact remained in detention under the
warrant issued for the extradition proceedings.
While this detention may have been technically lawful, I consider
it to have been applied for a purpose other than that for which it has
been prescribed. There was, as I have indicated, no justification
whatsoever for a continued detention of the applicant with a view to
extradition, and it would have been unlawful to continue detention on
remand. The existence of a formally valid arrest warrant issued under
the extradition proceedings was abused to apply de facto a detention
on remand in connection with the proceedings for rape. In my opinion
this is a classic example of misuse of a restriction and falls under
the prohibition set out in Article 18 of the Convention.
As a very substantial part of the detention of the applicant was,
in my view, unlawful under the Convention, I do not find it necessary
also to examine the facts under Article 5 para. 3.
For these reasons I conclude that there has been a violation of
Article 5 para. 1 read in conjunction with Article 18 of the Convention
while no separate issue arises under Article 5 para. 3.
Full & Egal Universal Law Academy