CONCURRING OPINION OF JUDGE MARTENS

1. The position I have taken in the case of Brogan and Others (Series A no. 145-B) - a position which I still maintain - explains why I have voted for finding that the derogation lodged by the United Kingdom satisfies the requirements of Article 15 (art. 15) of the Convention: in this respect I would compare what I have said in paragraph 12 of my dissenting opinion in the case of Brogan and Others with paragraphs 60-67 of the present judgment.

I would add, however, that I have voted in this way only after considerable hesitations. I was impressed by Amnesty International ’ s argument that under a derogation regular judicial review of extended detention is an essential guarantee to protect the detainee from unacceptable treatment - a risk which is all the greater where there is the possibility of incommunicado detention - even if the procedure to be followed does not meet fully the requirements implied in Article 5 para. 3 (art. 5-3). I trust that the United Kingdom Government, in the course of the process of continued reflection referred to in paragraph 54 of the Court ’ s judgment, will once more consider the advice submitted by their own Standing Advisory Commission on Human Rights stressing the possibility of introducing some form of judicial review of extended detention.

2. I disagree with the Court ’ s decision in paragraph 43 of the present judgment according to which a wide margin of appreciation should be left to the national authorities of the derogating State with respect both to the question whether there is a "time of war or other public emergency threatening the life of the nation" and whether the derogation is "to the extent strictly required by the exigencies of the situation".

3. For my part, I found Amnesty International ’ s arguments against so deciding persuasive, especially where Amnesty emphasised developments in international standards and practice in answer to world-wide human rights abuses under cover of derogation and underlined the importance of the present ruling in other parts of the world. Consequently, I regret that the Court ’ s only refutation of those arguments is its reference to a precedent which is fifteen years old.

Since 1978 "present day conditions" have considerably changed. Apart from the developments to which the arguments of Amnesty refer, the situation within the Council of Europe has changed dramatically. It is therefore by no means self-evident that standards which may have been acceptable in 1978 are still so. The 1978 view of the Court as to the margin of appreciation under Article 15 (art. 15) was, presumably, influenced by the view that the majority of the then member States of the Council of Europe might be assumed to be societies which (as I put it in my aforementioned dissenting opinion) had been democracies for a long time and, as such, were fully aware both of the importance of the individual right to liberty and of the inherent danger of giving too wide a power of detention to the executive. Since the accession of eastern and central European States that assumption has lost its pertinence.

4. However that may be, the old formula was also criticised as unsatisfactory per se both by Amnesty International and Liberty , Interights and the Committee on the Administration of Justice, the latter referring to the 1990 Queensland Guidelines of the ILA (International Law Association). I agree with these criticisms. The Court ’ s formula is already unfortunate in that it uses the same yardstick with regards to two questions which are of a different nature and should be answered separately.

The first question is whether there is an objective ground for derogating which meets the requirements laid down in the opening words of Article 15 (art. 15). Inevitably, in this context, a certain margin of appreciation should be left to the national authorities. There is, however, no justification for leaving them a wide margin of appreciation because the Court, being the "last-resort" protector of the fundamental rights and freedoms guaranteed under the Convention, is called upon to strictly scrutinise every derogation by a High Contracting Party from its obligations.

The second question is whether the derogation is to "the extent strictly required by the exigencies of the situation". The wording underlined clearly calls for a closer scrutiny than the words "necessary in a democratic society" which appear in the second paragraph of Articles 8-11 (art. 8-2, art. 9-2, art. 10-2, art. 11-2). Consequently, with respect to this second question there is, if at all, certainly no room for a wide margin of appreciation.

DISSENTING OPINION OF JUDGE MAKARCZYK

I regret that I am unable to share the position of the majority of the Court in the present case. This is for three main reasons: the general consequences of the judgment; the question of a time-limit for the derogation and the reasons for the derogation as put forward by the respondent Government.

1. The principle that a judgment of the Court deals with a specific case and solves a particular problem does not, in my opinion, apply to cases concerning the validity of a derogation made by a State under Article 15 (art. 15) of the Convention. A derogation made by any State affects not only the position of that State, but also the integrity of the Convention system of protection as a whole. It is relevant for other member States - old and new - and even for States aspiring to become Parties which are in the process of adapting their legal systems to the standards of the Convention. For the new Contracting Parties, the fact of being admitted, often after long periods of preparation and negotiation, means not only the acceptance of Convention obligations, but also recognition by the community of European States of their equal standing as regards the democratic system and the rule of law. In other words, what is considered by the old democracies as a natural state of affairs, is seen as a privilege by the newcomers which is not to be disposed of lightly. A derogation made by a new Contracting Party from Eastern and Central Europe would call into question this new legitimacy and is, in my opinion, quite improbable. Any decision of the Court concerning Article 15 (art. 15) should encourage and confirm this philosophy. In any event it should not reinforce the views of those in the new member States for whom European standards clash with interests which they have inherited from the past. I am not convinced that the reasoning adopted by the majority fulfils these requirements. This is especially so as the derogation concerns a provision of the Convention which, for some, should not be the subject of any derogation at all.

2. I fully recognise the difficulties, and even the impossibility, for the Court in setting a precise time-limit for the derogation as a precondition of its validity under Article 15 (art. 15). However, I believe that the judgment should very clearly and unequivocally indicate that the Court accepts the derogation only as a strictly temporary measure. After all, it recognises the non-observance of Article 5 para. 3 (art. 5-3) of the Convention (paragraph 37 of the judgment), a basic provision of which the applicants cannot avail themselves of because of the derogation. The Court also considers the time factor as essential when speaking of its supervisory role in respect of the margin of appreciation (paragraph 43 of the judgment). It is true that the Court emphasises the obligation of the derogating State to review the situation on a regular basis (paragraph 54 of the judgment). But this obligation clearly results from the third paragraph of Article 15 (art. 15-3) and the emphasis does not contribute to reassure the international community that the Court is doing all that is legally possible for the full applicability of the Convention to be restored as soon as practicable. On the contrary, the present wording of the judgment tends rather to perpetuate the status quo and opens, for the derogating State, an unlimited possibility of applying extended administrative detention for an uncertain period of time, to the detriment of the integrity of the Convention system and, I firmly believe, of the derogating State itself.

3. This leads me to the third reason for my dissent which I consider to be of vital importance.

The main point that, in my opinion, the United Kingdom Government should attempt to prove before the Court is that extended administrative detention does in fact contribute to eliminate the reasons for which the extraordinary measures needed to be introduced - in other words the prevention and combating of terrorism. But, as far as I can see, no such attempt has been made either in the Government ’ s memorial and the attached documents, or in the pleading before the Court. Instead, the Government ’ s main arguments have centred on the alleged detrimental effects on the judiciary of control by a judge of extended detention without the normal judicial procedure.

I will not enlarge on this last argument, which has been skilfully called into question by dissenters both in the Commission and in the Court. I can only add that any form of judicial control could be beneficial for all concerned. If the Government had been able to provide valid arguments that extended detention without any form of judicial control does in fact contribute both to the punishment and prevention of the crime of terrorism, I would be ready to accept the legality of the derogation, notwithstanding the first two reasons of my dissent.

[*]  The case is numbered 5/1992/350/423-424.  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.

[*]  Note by the Registrar: as amended by Article 11 of Protocol No. 8 (P8-11), which came into force on 1 January 1990 .

[*]  Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 258-B of Series A of the Publications of the Court), but a copy of the Commission's report is available from the registry.

[*]  Paragraph 50 of the present judgment.

[*]   Series A no. 145, p. 32, para. 58.

[*]    Paragraphs 30 and 31 of the present judgment.

[*]     At p. 33, para. 61.