OPINION OF Mr. B. MARXER

     It is established in the case-law that the Convention organs may

find a violation of Article 5 para. 5 where the domestic authorities,

directly or in substance, find a violation of Article 5 paras. 1 - 4

of the Convention (Huber v. Austria, No. 6821/74, Dec. 5.7.76, D.R. 6

p. 65, at p. 69).  It is true that the Divisional Court in this case

could not find a violation of Article 5 para. 1 of the Convention

because the Convention is not incorporated into domestic law, and that

it did not expressly find that the applicant's detention was unlawful

in domestic law because the nature of the appeal in question did not

allow for such a finding.

     In such a case it is inevitably difficult for the Convention

organs to establish whether the detention was lawful in domestic or

Convention terms.  The majority of the Commission has approached the

question as going to lawfulness under Article 5 para. 1 of the

Convention.  In a case such as the present, where the applicant was

successful in his challenge to the decision to detain him, I prefer to

approach the question on the basis that - given the domestic law

background which is so well explained in Mr. Bratza's concurring

opinion - the Divisional Court's judgment was substantially a

declaration that the applicant's detention was unlawful in domestic

law.

     Accordingly, I conclude that there was a violation of Article 5

para. 5 because the applicant had no enforceable right to compensation

in respect of the unlawful detention be suffered.  The applicant's

claim under Article 5 para. 1 does not have to be answered by the

Commission, as he had, in effect, a domestic finding of unlawfulness.

He may still claim under Article 5 para. 5, however, because the

Divisional Court's findings do not go as far as redressing the wrong

the Court found.

                                                  (Or. French)