DISSENTING OPINION OF JUDGE KALAYDJIEVA

I find myself unable to share the opinion of the majority that, in the light of the examination of the applicants’ complaints of arbitrary detention resulting from the authorities’ failure to allow their timely participation in courses under the first paragraph of Article 5 of the Convention, no separate issue arises under Article 5 § 4.

The substantive right to personal liberty guaranteed by the first paragraph of Article 5 is clearly distinct from the procedural guarantees required by Article 5 § 4 for the purposes of effective protection against arbitrariness. While it is true that the notion of ‘lawfulness’ has the same meaning in both provisions (see paragraph 230 of the judgment), in the instant case the underlying statutory requirement to impose and order the continuation of the period of detention served as an assumption of lawfulness, which affected these distinct rights in a different manner. This assumption not only required the domestic courts to impose IPP sentences without any initial individual assessment, but also limited the scope of any subsequent assessment of the applicants’ situation – despite the express criticism and censure of the quality of the law and the authorities’ failure to enable prisoners to meet the statutory prerequisites for release imposed by it. This assumption of lawfulness pre-empted the proceedings before the Parole Board and limited the scope of the formally available review to an extent which ultimately acted as an obstacle to the exercise of the domestic authorities’ competence to decide speedily on the lawfulness of the applicants’ detention. It is true that “[s]hortly after the lodging of their judicial review claims, both [Mr Wells and Mr Lee] were transferred to a first stage prison for access to relevant courses and assessments” (see paragraph 231). However, the subject matter and outcome of these proceedings appear to be different from proceedings in which “the lawfulness of detention shall be decided speedily by a court and release ordered if the detention is not lawful” as required by Article 5 § 4.

The respondent Government failed to demonstrate any other available proceedings or practice established by the Parole Board and/or the competent domestic courts capable of affording a proper scope of review without consideration of the statutory assumption of the initial and continuing lawfulness of the applicants’ detention, and which could have resulted in an order for release where appropriate. In this regard the “exceptional nature” of the decision of the Parole Board to release Mr James (see paragraph 212) only emphasises the problem as regards the effectiveness of the proceedings for the purposes of Article 5 § 4. In this regard I see no reason to disagree with the findings of Moses LJ (see paragraphs 61-66). Lastly, I find myself unable to accept the approach of shifting onto the applicants the burden of proof as to the effective operation of the Parole Board and the judicial review proceedings for the purposes of Article 5 § 4 (see paragraph 232). The opposite approach by the Court in cases under Article 5 § 4 (as in cases concerning Article 13) seems well established.