DISSENTING OPINION OF MRS. LIDDY AND MM. PELLONPÄÄ,

               BUSUTTIL, ROZAKIS, BRATZA, RESS.

     To our regret, we cannot follow the reasoning or conclusion of

the majority of the Commission in this case. We recognise that the

period of delay in effecting the applicant's release was short.

However, having regard to the fundamental importance of the right to

liberty in a democratic society grounded on the rule of law, a

scrupulous supervision by the organs of the Convention is called for

wherever there is a deprivation of liberty. We cannot accept that a

short period of detention which is unlawful as a matter of domestic law

can be disregarded either on the grounds that it falls within a certain

margin of appreciation afforded to member States or by the application

of some "de minimis" principle. The maxim "de minimis non curat

praetor" is not part of the legal framework of the Convention and

certainly has no place in the context of the unlawful deprivation of

liberty. To delay the release of a person at a police station for even

a brief period beyond that permitted by domestic law, in circumstances

where there exist no compelling practical or technical reasons for the

delay, raises in our view an issue under Article 5 of the Convention.

     On the material before us, we see no reason for the delay in the

applicant's release following his questioning in the morning of

5 July 1991, the questioning of Mrs. S. and the telephone conversation

with the Hanau Public Prosecutor's Office, all of which had ended

before 9.45 a.m., when the period permitted by S. 163 c of the Code of

Criminal Procedure expired. In this regard, we note that the Koblenz

Court of Appeal, in its first decision of 21 May 1992, raised the

question whether the applicant's continued detention until the next

morning had been necessary at all.

     It is true that in certain circumstances, some delay in the

release of a detainee may be understandable (cf. Eur. Court HR., Quinn

judgment, loc. cit., p. 17, para. 42), as, for example, where such

delay results from the practical exigencies of the functioning of the

courts (Quinn v. France, Comm. Report 22.10.93, para. 41, Eur. Court

HR., Series A no. 311, pp. 23 et seq.). However, the respondent

Government have not advanced any plausible explanation as to why the

applicant could not have been released at 9.45 a.m. at the latest, but

had to be kept until 10.30 a.m. We note that, under the relevant

provisions of the Code of Criminal Procedure, the applicant's release

did not require any formal decision or the completion of any particular

formalities (a contrario, Quinn judgment, loc. cit.). Further, there

is nothing to suggest any tacit agreement on the part of the applicant

to remain in the police station until arrangements could be made to

drive him back from Cochem to Ulmen. Accordingly, the delay in

effecting his release cannot be attributed to the applicant himself.

     The majority of the Commission seek to justify the prolonged

detention of the applicant by reference to the court decisions refusing

to order the prosecution of the officers concerned and refer to the

finding of the Koblenz Court of Appeal that there was nothing to

indicate that Police Officer Blang had been aware that the permissible

period of detention had been exceeded. In concluding that there has

been a violation of Article 5 of the Convention, we do not call into

question these decisions of the national authorities. However, the

question whether there was criminal liability as a matter of domestic

law is quite distinct from the question whether the detention complied

with the requirement of lawfulness in the Convention. Article 5

concerns the lawfulness of the detention and not the question whether

persons responsible for the unlawful detention are criminally liable.

     In these circumstances, we consider that the applicant's

continued detention on 5 July 1991 between 9.45 and 10.30 a.m. was not

"lawful" and not "in accordance with a procedure prescribed by law"

within the meaning of Article 5 para. 1 (c) of the Convention.