Lexploria

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.

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SCOTT v. SPAIN

SCOTT v. SPAIN

LEXI