PARTLY CONCURRING, PARTLY DISSENTING OPINION OF JUDGE DE MEYER  

(Translation)

I.    The deportation order  

A. Article 3 and Article 13 in conjunction with Article 3  (art. 3, art. 13+3)   I entirely agree with the judgment in this respect.  

B. Article 8 and Article 13 in conjunction with Article 8  (art. 8, art. 13+8) 

The Court, having found that the question whether there had been a violation of the rights set forth in Article 8 of the Convention (art. 8) was "hypothetical" (see paragraphs 139 and 146 of the judgment) did not consider it necessary to rule on the Article 8 (art. 8) complaint or on the alleged violation of that provision in conjunction with Article 13 (art. 13+8).

I wish to point out that in the instant case the question of the violation of the rights set forth in Article 8 (art. 8) is no more "hypothetical" than that concerning those under Article 3 (art. 3). Both arise equally "in the event of the Secretary of State's decision to deport the first applicant to India being implemented". Consequently, if we consider one, we must also consider the other.

I agree in substance with the arguments unanimously adopted by the Commission in paragraphs 134 to 139 of its report and share its opinion that if the deportation order were enforced, there would be a violation of the applicants' right to respect for their private and family life. 

I likewise consider that, in the instant case, there would also be a violation of the right to an effective remedy under Article 13 (art. 13) in respect of their Article 8 (art. 8) rights.  The Court's observations concerning the violation of Article 13 in conjunction with Article 3 (art. 13+3) are equally valid as regards the alleged violation of Article 13 in conjunction with Article 8 (art. 13+8). 

In the instant case these two violations are closely connected and virtually inseparable.  Deporting the first applicant would constitute a violation of both his personal right not to be subjected to the practices referred to in Article 3 (art. 3) and all the applicants' right to respect for their private and family life.  The lack of remedies for challenging the deportation order thus simultaneously affects each of these rights.

II.  The first applicant's detention  

A. Article 5 para . 1 (art. 5-1) 

It is true that the first applicant was deprived of his liberty as part of the deportation proceedings and that initially, in August 1990, his detention could be considered lawful on this ground. 

However, he has been held in prison ever since and it is now the end of October 1996. 

That is clearly excessive. 

The "considerations of an extremely serious and weighty nature" referred to in paragraph 117 of the judgment may be enough to explain the length of the deportation proceedings. They cannot, however, justify the length of the detention, any more than the complexity of criminal proceedings is enough to justify the length of pre-trial detention. 

Moreover, what is in issue here is not, as in the Kolompar v. Belgium case (judgment of 24 September 1992, Series A no. 235-C), an instance of extradition requested by another State with respect to a prison sentence of several years, but rather an order made by the respondent State for the deportation of a person who, as is stated in paragraphs 23 and 24 of the judgment, had been convicted there of only two minor offences, convictions that had since been quashed.  

B.  Article 5 para . 4 and Article 13 in conjunction with Article 5  (art. 5-4, art. 13+5) 

Unlike the Commission, which chose to examine the first applicant's complaint concerning the lack of sufficient remedies for challenging his detention from the point of view of Article 13 (art. 13), the Court considered it in the light of Article 5 para . 4 (art. 5-4). 

The Court's reasoning is certainly more consistent with both the letter and the spirit of those provisions (art. 13, art. 5-4). 

It should be reiterated first of all that Article 5 para . 4 (art. 5-4) provides that "everyone who is deprived of his liberty by arrest or detention" is entitled to take proceedings, whereas Article 13 (art. 13) confers this right upon "everyone whose rights and freedoms as set forth in [the] Convention are violated".  This suggests that in order to be able to rely on the first provision (art. 5-4), deprivation of liberty on its own is enough, whereas for the second (art. 13) to be applicable there must have been a violation of a right or freedom. 

It is also necessary to point out that Article 5 para . 4 (art. 5-4) states that the proceedings must be before a "court", whereas Article 13 (art. 13) requires more vaguely "an effective remedy before a national authority". 

Lastly, it is of interest to note that, except for the right of access to a court, which, as the Court has acknowledged since the Golder v. the United Kingdom judgment of 21 February 1975 (Series A no. 18), is guaranteed by Article 6 of the Convention (art. 6), Article 5 (art. 5) is the only one of the Convention's substantive provisions that specifically provides for a right to bring court proceedings in addition to the right to a trial provided for in paragraph 3 of the same Article (art. 5-3) in the cases referred to in paragraph 1 (c) (art. 5-1-c). 

The foregoing is a good illustration of how well those who drafted the Convention understood the need to provide, particularly for those deprived of their liberty, judicial protection that goes well beyond the "effective remedy" guaranteed more generally under Article 13 (art. 13). 

It must follow that in cases concerning deprivation of liberty it is not enough to examine whether there has been a violation of Article 13 (art. 13) for it to become unnecessary to consider whether there has been a violation of Article 5 para . 4 (art. 5-4); in such cases it is only an examination of a possible violation of the latter provision (art. 5-4) that is necessary. 

That is not all. 

Article 13 (art. 13), which guarantees a remedy before a "national authority", must be taken in conjunction with Article 26 (art. 26), which requires "all domestic remedies [to have been] exhausted" before the Commission may deal with the matter.  These two provisions (art. 13, art. 26) complement each other and demonstrate that it is first and foremost for the States themselves to punish violations of the rights and freedoms provided for, the protection afforded by the Convention institutions being merely secondary. 

It is from this point of view that the question whether or not there is an "effective remedy" as required by Article 13 (art. 13) is relevant.  For the Commission and the Court, the question is of no importance inasmuch as it relates to "rights and freedoms" which they consider were not "violated"; that is indeed what is indicated by the actual wording of the Article (art. 13).

This is certainly not true of the right to a remedy secured by Article 5 para . 4 (art. 5-4) to those deprived of their liberty, who must always be able to "take proceedings by which the lawfulness of [their] detention shall be decided speedily by a court and [their] release ordered if the detention is not lawful".  Even if we find their detention as such to be lawful under Article 5 para . 1 (art. 5-1), we are not thereby absolved from the obligation to consider whether the individual concerned was able to avail himself of a remedy that satisfied the requirements of Article 5 para . 4 (art. 5-4).