DISSENTING OPINION OF JUDGE VALTICOS, APPROVED BY JUDGE MATSCHER

(Translation)

1.   If I do not share the opinion of the majority of the Court, who have held that the Convention has been violated in the instant case, it is not because I disagree with their reasoning on what one might call a "technical" level. Rather, it is because I think that the issue must be looked at in a broader setting.

In my view, it is appropriate to consider as a whole the provisions of Article 5 (art. 5) of the Convention, in their spirit as well as in their letter, and the various proceedings in Italy in the Ciulla case.

As regards Article 5 para. 1 (art. 5-1) of the Convention, that Article is clearly designed mainly to afford individuals judicial safeguards against arbitrary action by the police or the executive which might result in their being deprived of liberty.

As regards the proceedings in Italy in the Ciulla case, there were a number of interwoven prosecutions and decisions which involved courts of different levels and ended with Mr Ciulla ’ s being sentenced to nine years ’ imprisonment. The deprivation of liberty - lasting not more than sixteen days - which he underwent during these complicated proceedings cannot be looked at in isolation and should not be severed from the whole body of judicial proceedings and stages of which it formed part. Furthermore, the fact cannot be overlooked that this deprivation of liberty, even if it was not in itself strictly a decision concerning the application of the law, emanated from a judge who was a member of a judicial body. It seems to me that it would be artificial to isolate this phase from the general course of the trial, however complicated the trial may have been. Looking at the situation as a whole, I find it unreasonable to conclude that there has been a violation of Article 5 para. 1 (art. 5-1) of the Convention.

2.   As to Article 5 para. 5 (art. 5-5), firstly, since I take the view that there has not been a breach of Article 5 para. 1 (art. 5-1), I consider that the issue cannot arise. Secondly, the exact import of Article 5 para. 5 (art. 5-5) raises, as has been pointed out in other cases, difficult problems. To give only the briefest idea of these, I will say merely that one must proceed on the principle that the Convention cannot impose a national constitutional system providing for automatic incorporation of the Convention - once ratified - into the domestic legal order, and still less can it require that the Convention prevail over ordinary laws. That being so, the issue of the compensation provided for in Article 5 para. 5 (art. 5-5) must be looked at independently of the issue of incorporating the Convention into the domestic order and on the basis of domestic law, whether or not that incorporates the actual terms of the Convention. In any case, even supposing that the domestic law incorporates the terms of the Convention, it is difficult to see how a national court could give effect to the terms of Article 5 para. 5 (art. 5-5) unless there were more specific national provisions giving practical expression to the content of those terms. The provision does not seem, subject to the judgment of the national courts, to be self-executing. In the normal course of events, therefore, Article 5 para. 5 (art. 5-5) should be given effect by an express, precise provision of domestic law.

There is also a second series of difficulties, which are logical rather than legal in nature. Can it normally be expected that a government should directly award compensation for an arrest or detention brought about by its authorities in accordance with its own legislation but contrary to Article 5 (art. 5) of the Convention before the Court has held that there has been such a breach (unless the government realises it earlier - which is, to say the least, uncertain)? This suggests that the question of implementing Article 5 para. 5 (art. 5-5) cannot really arise until after the Court has found a violation of the substantive provisions of Article 5 (art. 5) and the government - to whom that finding has been notified - has failed to give effect to paragraph 5 of that Article (art. 5-5). It is difficult to speak of a violation of Article 5 para. 5 (art. 5-5) before these two stages have been completed.

JOINT PARTLY DISSENTING OPINION OF JUDGES BINDSCHEDLER-ROBERT AND GÖLCÜKLÜ

(Translation)

As regards the majority ’ s finding of a breach of paragraph 5 of Article 5 (art. 5-5) of the Convention, we agree with the reasoning set out by Mr Valticos in the second sub-paragraph of paragraph 2 of his dissenting opinion.

We approve the judgment as to the rest.

[*]  Note by the Registrar.  The case is numbered 9/1987/132/183.  The second figure indicates the year in which the case was referred to the Court and the first figure its place on the list of cases referred in that year; the last two figures indica te, respectively, the case's order on the list of cases and of originating applications (to the Commission) referred to the Court since its creation.