JOINT PARTLY DISSENTING OPINION OF JUDGES DE GAETANO AND WOJTYCZEK

1. With all due respect to our colleagues, we disagree with the view of the majority that there has been no violation of Article 5 § 1 in the instant case (point no. 3 of the operative part of the judgment).

2. The case raises fundamental issues of treaty interpretation. We note that the Court’s recent case-law has often opted for an evolutive and teleological interpretation of the Convention and has not hesitated to depart from existing case-law in order to broaden the scope of the rights protected under the Convention. In the instant case the majority opted for a different approach: to focus on the letter of the Convention and on the travaux préparatoires (see, for instance, paragraphs 114 and 115 of the judgment, and also paragraph 99). Concomitantly with this, they did not hesitate to limit the scope of the rights protected by invoking the letter of the Convention and adapting their interpretation to that letter. Moreover, in a very unusual step, the majority criticised previous compositions of the Court for the lack of sufficient reasoning in judgments based on the idea of the evolutive interpretation of the Convention (see paragraph 108 of the judgment).

We agree in broad terms with the general philosophy of treaty interpretation adopted by the majority and hope that this approach will be upheld and consolidated in future Grand Chamber cases. In particular, we share the view that interpretation of the Convention should give precedence to the directives of linguistic interpretation (on this term, see J. Wróblewski, The Judicial Application of Law , Springer-Science-Business-Media B.V., Dordrecht, 1992, pp. 97-100). We also share the view that the letter of the Convention may justify the Court revisiting an over-extensive interpretation of a particular provision. However, we express our strong objection concerning two points. Firstly, we consider that the methodology was not correctly applied, and therefore we cannot agree with the conclusions of the majority to the effect that the detention of the applicants was covered by Article 5 § 1 (c).

Secondly, and more critically, we note that the general philosophy of treaty interpretation endorsed in the instant judgment has frequently been rejected in many other Grand Chamber and Chamber judgments, especially in cases concerning Article 8. It is entirely unclear why in some cases the Court adopts an evolutive interpretation departing from the original intent of the parties and from the text of the treaty, whereas in other cases, like this one, it adopts the opposite approach. The result is that the Court has neither presented a coherent theory of treaty interpretation serving as a basis for its judgments nor explained its choices concerning the interpretative rules it applies.

3. The Court, in the exercise of its mandate as defined and delimited by Article 19 of the Convention, has a special role to play in developing European legal culture. An important element of legal culture is the culture of interpretation. The latter presupposes clear and precise rules of interpretation. In many legal systems there exists a coherent set of rules of interpretation, usually unwritten but clearly explained and applied in judicial decisions, with judgments often containing extensive and precise considerations concerning the interpretative rules underpinning the reasoning. European human rights law has not yet reached the level of development and refinement of domestic legal systems on this point and the European Court of Human Rights not only has not developed a sufficiently coherent interpretative methodology within the scope of the discretion left to it by the general rules of treaty interpretation, but has often overlooked, or shied away from, the applicable customary rules of treaty interpretation codified in the Vienna Convention on the Law of Treaties. Viewed from the domestic perspective, the role of the Court in building up a culture of interpretation is far from satisfactory.

4. We fully agree with the majority that in settling interpretative issues the Court should duly examine the travaux préparatoires and try to establish to the extent possible the original intent of the High Contracting Parties. We would like to underline at the same time that Article 32 of the Vienna Convention on the Law of Treaties (which codifies the rules of treaty interpretation) formulates the following rule in this respect:

“Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:

(a) Leaves the meaning ambiguous or obscure; or

(b) Leads to a result which is manifestly absurd or unreasonable.”

The travaux préparatoires are a subsidiary means of treaty interpretation which is important in cases when the wording of the treaty remains unclear, but which cannot be decisive when the linguistic interpretation of the treaty leads ineluctably to one clear result which is not manifestly absurd or unreasonable.

We are, moreover, not unmindful of the fact that Lawless v. Ireland (no. 3) (1 July 1961, Series A no. 3) was decided at a time when the full judicialisation of the Convention depended on the States which had ratified the Convention accepting also what until then were its optional provisions. It has been convincingly shown that the optional nature of important parts of the 1950 Convention influenced the authority and practices of both the Commission and the Court well into the mid-1970s, with both institutions at that time taking a very cautious approach to the Convention (see Mikael Rask Madsen, “‘Legal Diplomacy’ – Law, Politics and the Genesis of Postwar European Human Rights”, in Human Rights in the Twentieth Century: A Critical History , Stefan-Ludwig Hoffmann (ed.), Cambridge University Press, Cambridge, 2011, pp. 62, 75-79).

5. The majority insist on the necessity of adopting a flexible interpretation of Article 5 § 1 (c) (see paragraphs 118, 120, 126 in fine , 127, 137 and 141 of the judgment). We find this insistence quite baffling. In European legal culture there is a commonly accepted principle that provisions guaranteeing personal freedom should be interpreted strictly and literally. It is difficult to reconcile the approach adopted by the majority with the established canons of legal interpretation: in dubio pro libertate ; in dubio interpretatio pro regula contra limitationem facienda ; exceptio est strictissimae interpretationis ; odiosa sunt restringenda ; poenalia sunt restringenda ; mala restringenda sunt, non amplianda et multiplicanda , and so on.

All these canons point in one direction: that the aims of a provision protecting individual freedom can only be achieved though strict interpretation of the exceptions thereto, making the teleological and the linguistic methods of treaty interpretation converge in cases similar to the one at hand.

6. We agree with the majority that in the instant case the starting-point is the wording of Article 5 of the Convention. At the same time we consider that Article 5 § 1 (c) cannot be interpreted in a vacuum but has to be read in the context of other Convention provisions, and in particular Article 5 § 3. This last provision is worded as follows:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

The wording of this provision leaves no doubt as to the purpose of an arrest effected under Article 5 § 1 (c), namely to bring a person to criminal trial, that is, a trial for an offence committed by that person.

7. We further note that the situation referred to in Article 5 § 1 (c), “fleeing after having done so”, is always a specific situation covered by the broader situation referred to in the words “on reasonable suspicion of having committed an offence”. The danger of a person fleeing after committing an offence always presupposes that there is a reasonable suspicion that an offence has already been committed. Specifying in the last ground what has already been said in a more general manner in the first ground seems prima facie superfluous. The introduction of the third ground can only be explained by the fact that this is an exemplification of situations when there is a reasonable suspicion of a person having committed an offence. In our view, the same approach applies to the situation referred to by the words “when it is reasonably considered necessary to prevent his committing an offence”. It should be read as an exemplification of a broader situation labelled as a “reasonable suspicion of having committed an offence”.

8. The majority express the following view: “It follows directly from the wording of Article 5 § 3 that if the person is not ‘arrested or detained’ but has been released, there is no obligation to bring him or her promptly before a judge” (see paragraph 129 of the judgment).

We would rather say that a person arrested or detained “for the purpose of bringing him before the competent legal authority”, under Article 5 § 1 (c), should either be brought promptly before a judge or released. If a person arrested for the purpose of bringing him before a judge or other officer authorised by law to exercise judicial power has been promptly released, there is no need to bring that person before a judge. In that case the possibility of contesting ex post before a judge the legality of the decision to arrest the person suffices.

9. We further note that among the three grounds for detention, the first one (“reasonable suspicion of having committed an offence”) and the third one (the risk of fleeing) clearly refer to criminal proceedings. In such a situation it is difficult to understand how, and much more difficult to maintain that, the second ground (“when it is reasonably considered necessary to prevent an offence”) does not refer to criminal proceedings concerning an offence which has already been committed, at least in the form of an attempted offence or a conspiracy to commit an offence.

10. We note that in many legal systems, the law does not provide for preventive detention of football supporters. Instead, States may opt for the criminalisation of acts committed at the “forefront” (“ Vorfeld ”) of a main criminal offence, especially the preparation of an offence or the fact of carrying certain dangerous objects in certain specific circumstances. In this context, preventive detention does not appear a necessary means of combating football violence or hooliganism. In any event, if the High Contracting Parties consider that the Convention prevents them from applying certain legitimate means of constraint, they can amend this treaty.

We note also that the domestic courts in the present case established that the three applicants had instigated brawls between football fans (see paragraph 25 of the judgment). It is not clear why the applicants were not prosecuted for the instigation of such fights.

11. We would like to note the following points concerning the content and the application of domestic law.

Firstly, the relevant domestic law is worded in the following terms:

“1. The police shall avert any risk of disturbance of public order and any danger to the safety of individuals and public security.

...

3. Where the less intrusive measures set out in subsection 2 are found to be inadequate to avert a risk or danger, the police may, if necessary, detain the person(s) causing the risk or danger. Such detention must be as short and moderate as possible and should not extend beyond six hours where possible.

...” (Section 5 of the Police Act (Act no. 444 of 9 September 2004) – see paragraph 29 of the judgment)

The wording appears very broad and vague. In particular, preventive detention may be resorted to because of any risk of disturbance of public order or any danger to the safety of individuals and public security, and is not limited to an imminent danger that a specific criminal offence will be committed. Such a basis for preventive detention is problematic from the viewpoint of the requirement of precision and clarity of domestic law, that is, the requirement of “quality of the law”.

Secondly, the domestic courts established the intent of the law-maker in the following terms:

“It also appears from the preparatory notes on the same provision that normally the six-hour period can only be exceeded in connection with actions involving the detention of a considerable number of people, in which situations the time spent on transfer to the police station and registration and identification of detainees would render it impossible, in practice, to observe the six-hour rule.” (see paragraph 25 of the judgment)

However, as pointed out by the applicants and confirmed by the testimonies of the police officers (see paragraphs 21 and 24), the total number of people detained in connection with the football event did not render it impossible, in practice, to observe the six-hour rule. The police decided to exceed the six-hour rule in order to prevent the applicants from returning to the city centre and possibly engaging in clashes. It is clear that the police did not consider that the law granted them sufficient powers.

12. For the reasons explained above, we consider that the detention of the three applicants constituted a violation of Article 5 § 1 of the Convention.