PARTLY DISSENTING OPINION OF JUDGE BRATZA

1. In finding a violation of Article 5 § 1 in the present case, the majority of the Chamber have divided the applicant ’ s detention in Spain into two periods – the period from 5 August 2004 (the date of the applicant ’ s arrest) to 12 November 2004 (the date of the decision of the Civil Court in relation to the applicant ’ s constitutional ch allenge) and the period from 12 November 2004 to 22 November 2004 (the date on which the applicant was released on bail by the Spanish authorities).

2. In relation to the former period, the applicant ’ s complaint that he was detained in breach of Article 5 § 1 since the court issuing the arrest warrant did not have the authority to do so has been rejected by the Chamber on the ground that the applicant can no longer claim to be a victim of a violation and that this part of the complaint is, in consequence, incompatible ratione personae . As noted in the judgment, the Civil Court held that the arrest warrant of 5 February 2004 should be rescinded on the grounds that the court issuing it had no competence to do so and had acted ultra vi res and that the applicant ’ s arrest was therefore devoid of any legal basis and contravened Article 5 § 1. The Civil Court went on to award the applicant the sum of 250 Maltese Liri (approximately 600 euros) in compensation (judgment § 13). The Civil Court ’ s decision and the award were confirmed by the Constitutional Court in its judgment of 23 November 2004 (judgement § 22).

3 . I am in entire agreement with the Chamber in this conclusion and reasoning. Where I differ from the majority is as to their finding that in respect of the second period the applicant retained his victim status and that his rights under Article 5 § 1 were violated. The majority have rejected the Government ’ s objection of lack of victim status on the grounds that in its judgment the Constitutional Court neither expressly nor in substance acknowledged a violation of Article 5 § 1 during the ten-day period between 12 and 22 November 2004 and, consequently, did not redress such violation. It is argued that, in its judgment confirming the decision of the Civil Court , the Constitutional Court “made no reference ... to a violation in respect of the ten-day period”. It is said that, on the contrary, the Constitutional Court insisted that the Civil Court “should not have ordered the applicant ’ s release in view of the fact that he was detained in Spain ; consequently, it follows that he could not have upheld the finding of such a violation”. In the majority ’ s view, had such a finding been upheld, the Constitutional Court “would have increased the sum granted to the applicant in compensation in view of the further period of ten days in which he remained in detention” (judgment, § 67).

4 . In my view, the majority ’ s approach is unduly formalistic and does not properly reflect either the intention or the effect of the Constitutional Court ’ s judgment. It is true that the Constitutional Court did not uphold the Civil Court ’ s order to release the applicant for reasons which would seem to be clear from its judgment, namely that the applicant was detained in Spain and that it was not within the jurisdiction of a Maltese court to direct the courts or authorities of another sovereign State to release a detainee within its own territory. This was indeed underlined by the fact that, when the Spanish court was informed of the order of th e Civil Court, it decided on 16 November 2004 that the applicant ’ s release was a matter to be determined on the basis of Spanish law, without reference to Maltese law, and declined to release him (judgment § 18). It does not, in my view, follow from this that the Constitutional Court did not acknowledge that the applicant ’ s rights under Article 5 § 1 had been violated; on the contrary, the court expressly found that the arrest warrant was null and void and that the applicant ’ s arrest was unlawful and in violation of Article 5 § 1.

5 . The majority argue that, had the Constitutional Court fully upheld the Civil Court ’ s judgment, it would have increased the sum awarded in view of the further period of ten days during which the applicant remained in detention. I cannot share this view. It is apparent from the reasoning of the Constitutional Court why it considered that an increase in the sum awarded was not justified. Not only had the release of the applicant been a matter outside the control of the Maltese courts, but the breach of Article 5 § 1 was a procedural rather than a substantive one; as the Constitutional Court emphasised, the arrest warrant had been issued by the wrong court but had been validly grounded in Maltese law. It was for the very reason that the unlawfulness was due solely to a procedural defect that the Constitutional Court found the compensation granted by the first court to be adequate, confirmed the sum awarded and went on to note that a new warrant under section 355 V of the Criminal Code could be issued and would be perfectly lawful (see judgment § 22). In the light of this explanation, I see no reason why the compensation awarded by the Civil Court, which was itself not fixed by reference to the number of days which the applicant had spent in detention, should have been increased to reflect the further ten days of detention, six of which were in any event attributable to the Spanish authorities.

6. In my view, the explicit acknowledgment that there had been a breach of the procedural requirements of lawfulness under Article 5 § 1 and the redress provided by way of an award of compensation for such breach are such that the applicant can no longer claim to be a victim of a violation of that Article.