PARTLY DISSENTING OPINION OF JUDGE BERNHARDT

In my view there is a violation of Article 5 para . 1 (art. 5-1) (and consequently also of Article 5 para . 5 (art. 5-5)) of the Convention in the present case.

I leave aside my doubts whether a prison sentence is in the circumstances of the case proportionate to the failure of Mr Benham to pay a community charge.  Detention may in such a case be appropriate if there exists a chance that the detainee can and will pay the charge under such pressure.  But if it is undisputed that the detained person has no means to pay the charge, a prison sentence is in my view hardly compatible with the proper role of criminal sanctions in present-day societies.  But this is not the final reason of my dissent.

I understand Article 5 para . 1 of the Convention (art. 5-1) in the sense that the words "lawful detention" refer to the conformity of the decision ordering the detention with national law, in so far as the material and procedural conditions contained in national law must be satisfied.  In the present case, it is clear from the decision of the Divisional Court that under English law the magistrates should not have sent Mr Benham to prison.

The present decision of the Court goes further and understands the reference to national law in the sense that a detention which has been ordered in violation of national law remains nevertheless lawful if under national law the deciding judge or magistrate acted inside his jurisdiction, if he did not act in bad faith, and if the order was not void ab initio.  This understanding of Article 5 (art. 5) has far-reaching consequences.  Even if the conditions provided for by national law are not satisfied, the detention remains nevertheless "lawful" if the national law distinguishes (which is often not the case) between decisions which are void ab initio and other decisions. Such a distinction - which leads often, including in the present case, to extremely unclear results - neglects the situation and the interests of the detained person.  Decisive are the degree of the violation of the national law, the corresponding error of the judge concerned and the difference between void and "voidable" decisions.  In my view, Article 5 (art. 5) refers to national law only in so far as the original detention order must be compatible with that law.

I do not think that the comparison drawn in paragraph 42 of the judgment with convictions which are subsequently quashed by a higher court is convincing.  The present case concerns exclusively the question whether the detention was "lawful" at the time when the detention order was made.

PARTLY DISSENTING OPINION OF JUDGE THÓR VILHJÁLMSSON

To my regret, I have not found it possible to follow the majority of the Court on the question whether there was a violation of Article 5 para . 1 of the Convention (art. 5-1).

The Commission came to the conclusion that "the weight of the argument before it tends to be of the view that, in domestic law, the applicant's detention was not lawful" (Commission's report, paragraph 48).

The Court, on the other hand, did "not find it established that the order for detention was invalid, and thus that the detention which resulted from it was unlawful under national law ...".

The arguments for and against these different conclusions are complicated and I am left in some uncertainty as to how to assess them.

This uncertainty reveals that the national law is far from clear, yet what is in issue is an important question concerning personal liberty.

As stated by the Court in the Bozano judgment, "Lawfulness, in any event, also implies absence of any arbitrariness ..." (Series A no. 111, p. 25, para . 59).

As in that judgment, the particular circumstances of the case are relevant.  Mr Benham was ordered to be detained for thirty days, and actually served eleven days, for failure to pay a community charge, in all £355, costs included.  He had no personal assets or income, but the English magistrates found that he clearly had the potential to earn money to discharge his obligation to pay.

In my opinion, the warrant issued by the magistrates was very severe in the circumstances.

For these reasons, I am of the opinion that Article 5 para . 1 (art. 5-1) was violated.

Consequently, I find Article 5 para . 5 (art. 5-5) to be applicable.  There was therefore, obviously, also a violation of that provision (art. 5-5).