JOINT PARTLY DISSENTING OPINION OF JUDGES MARTENS AND PALM

1.   We fully agree with the Court's findings in respect of Articles 3, 5 para . 4, 8 and 13 (art. 3, art. 5-4, art. 8, art. 13). As to its findings in respect of Article 5 para . 1 (f) (art. 5-1-f) we agree with paragraphs 112 to 121 of the judgment. 

We cannot accept, however, the Court's findings: 

(a) that the procedure before the advisory panel constituted a sufficient guarantee against arbitrariness; and 

(b) that, consequently, the first applicant's detention in this respect too complied with the requirements of Article 5 para . 1 (f) (art. 5-1-f) (paragraphs 122 and 123 of the judgment).

2.   As the Court rightly remarks in paragraph 112 of its judgment, Article 5 para . 1 (f) (art. 5-1-f) does not explicitly demand that the detention under this provision (art. 5-1-f) be reasonably considered necessary.  This enhances, for this kind of detention, the importance of the object and purpose of Article 5 para . 1 (art. 5-1) in general, which is to ensure that no one should be dispossessed of his liberty in an arbitrary fashion.

3.   In this context we firstly note that the domestic courts were not in a position effectively to control whether the decisions to detain and to keep detained Mr Chahal were justified (see paragraphs 41, 43, 121 and 130 of the Court's judgment). Consequently, the only possible safeguard against arbitrariness under domestic law was the advisory panel procedure.

4.   Having analysed the status of and the proceedings before this panel the Court finds that this procedure does not meet the requirements of Article 5 para . 4 (art. 5-4) and of Article 13 (art. 13) (paragraphs 130, 132, 152, 153) of the Convention.  We find it difficult to understand why it did not draw the same conclusion in the context of Article 5 para . 1 (f) (art. 5-1-f).

5.   However that may be, we note: 

(a) that it has not been claimed that the members of the panel are, as such, independent from the Government; 

(b) that the proceedings before the panel are not public, nor are its findings, which are not even disclosed to the addressee of the notice of intent to deport; 

(c) that in the proceedings before the panel the position of the addressee of the notice of intent to deport is severely restricted: he is not entitled to legal representation, he is only given an outline of the grounds for the notice of intention to deport, he is not informed of the sources of and the evidence for those grounds; 

(d) that the panel has no power of decision and that its advice is not binding upon the Home Secretary.

6.   Taking into account the importance of guarantees against arbitrariness especially in respect of detention under Article 5 para . 1 (f) (art. 5-1-f) (see paragraph 2 above) as well as the necessity of uniform standards being applied in this respect to all member States, we cannot but conclude that, in view of its features indicated in paragraph 5 above, the panel does not constitute an adequate guarantee against arbitrariness.  The fact that it includes "experienced judicial figures" (see paragraph 122 of the judgment) cannot change this conclusion.

7.   In sum: the applicant has been deprived of his liberty for more than six years whilst there were not sufficient guarantees against arbitrariness.  Article 5 para . 1 (art. 5-1) has therefore been violated.

[1] The case is numbered 70/1995/576/662.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[2] Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol (P9).  They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[3] For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1996-V), but a copy of the Commission's report is obtainable from the registry.