CONCURRING OPINION OF MR L. LOUCAIDES

I agree with the conclusions of the majority in this case. However, as regards Article 5 para . 3 of the Convention, my reasoning leading to a violation is as follows.

It seems that there is no express provision in Article 5 guaranteeing the exercise of a discretion by judicial authorities in determining a pre-trial detention. But I cannot accept that the provisions of Article 5 were intended to confine the judicial task, in such an important subject as the liberty of the person, to simply deciding whether certain basic general conditions regarding the legality of detention were satisfied.

I believe that the conditions set out in that Article were the minimum requirements for the legality of detention. There remained an area of judicial discretion and control in the determination of whether the detention of a person was justified in the interests of justice on the basis of the facts and circumstances of a particular case. A judge had the power to order the detention of a person from the provisions of Article 5 paras . 1(c) and 3 of the Convention if the conditions prescribed therein were satisfied. But the judge was not obliged to order such detention automatically in any case where these condition were met. The existence of a residue of judicial discretion is clearly implied from the provisions of Article 5 of the Convention. A law which deprives the judge of such a judicial discretion, as in the present case, amounts, in my opinion, to a violation of the provisions at issue of Article 5 of the Convention.

(Or. English)