PARTLY DISSENTING OPINION OF JUDGE DE MEYER

I have no doubt that the purpose of the legal provision under which the applicant was deprived of his liberty was to "secure the fulfilment of" an "obligation prescribed by law".

However, since he had failed to fulfil the obligation concerned and since that failure was found by the magistrates' court to be due to his culpable neglect, the detention as such was, in my view, a punishment "after conv iction by a competent court" [4] .  It was indeed a sanction imposed on him on account of cond uct considered reprehensible [5] .  That also suffices for me to conclude that he was entitled to enjoy the rights recognised in Article 6 of the Convention (art. 6) [6] .

As far as Article 5 (art. 5) is concerned, I agree with Mr Foighel for the reasons set for th in his dissenting opinion [7] , that the applicant's detention was not lawful.

As to Article 6 (art. 6), it is enough for me to see that he was not assisted by counsel before the magistrates' court and that it has not been shown either that he had willingly and knowingly waived such assistance or that the interests of justice did not require it in the instance concerned [8] .

Finally, I feel that the Court should have granted some financial compensation to the applicant.

PARTLY DISSENTING OPINION OF JUDGE FOIGHEL

It has been constantly held by this Court that the right to liberty and security of person in Article 5 (art. 5) is one of the fundamental rights in the Convention.

The Court's starting-point should therefore be that any exceptions to this rule are to be interpreted narrowly.

The exception relevant to this case is Article 5 para . 1 (b) (art. 5-1-b), which permits

"(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;"

It is obvious that the Convention here essentially refers back to national law and lays an obligation on the national authority to comply with the substantive and procedural rules of that law, but it requires in addition that any deprivation of liberty should be consistent with the purpose of Article 5 (art. 5), namely to protect individuals from arbitrariness.

The duty of interpreting and applying domestic law falls, in the first place, to the national authorities, notably the courts.

If, however, the national law is obscure or uncertain, or if different interpretations of it are equally possible, it is incumbent on this Court - for the purpose of interpreting and implementing the Convention - to choose the interpretation of the national law which most closely corresponds with the purpose of Article 5 (art. 5), namely to protect individuals from arbitrariness.

In this case the Divisional Court found at the hearing in October 1991 that the magistrates' decision to commit Mr Benham to prison had been unlawful.  The Divisional Court was, however, silent as to whether Mr Benham's detention was unlawful from the start or whether it was unlawful only subsequent to the Divisional Court 's decision.  Further, it appeared from the addresses to the Court that - according to some interpretations of the English case-law - both interpretations were possible.

Against this background I would hold that in relation to Article 5 para . 1 (art. 5-1) the detention of Mr Benham was unlawful from the start, as the detention of a young man for thirty days for not having paid a tax of £325 is in itself, notwithstanding technical arguments, a flagrant violation of the liberty of person protected by the Convention.

Consequently, I find Mr Benham entitled to compensation for non-pecuniary damage in accordance wi th Article 50 (art. 50).

[1] The case is numbered 7/1995/513/597.  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-III), but a copy of the Commission's report is obtainable from the registry.

[4] See Mr Justice Sedley's opinion referred to in paragraph 20 of the present judgment and our Court's own conclusion in paragraph 56.

[5] See my opinion in Putz v. Austria , 22 February 1996, at paragraph 6.

[6] Once again the Court applies, in paragraph 56 of the present judgment, the three Engel criteria.  As I have already tried to explain in my opinion in Putz , at paragraphs 2-6, these criteria are not very useful.  It would be better to forget them altogether.

[7] See below.

[8] See my concurring opinion in Boner v. the United Kingdom , 28 October 1994, Series A no. 300-B, p. 78.