DISSENTING OPINION OF JUDGE VEHABOVI Ć

I regret that I am unable to subscribe to the view of the majority that there has not been a violation of Article 5 § 4 of the Convention in the present case.

The applicants were arrested under section 41 of the Terrorism Act 2000 on suspicion of being involved in the commission, preparation and instigation of acts of terrorism. Their detention was reviewed several times without the presence of a lawyer. They were even interviewed by the police without a lawyer being present.

My opinion is that whenever there are such serious allegations against an applicant he must be able to have a representative who will provide him with proper legal assistance. I would not limit this obligation to initial questioning; it should extend to legal assistance in proceedings relating to an initial measure or extension of detention.

The following day the applicants were informed that an application would be made to the City of Westminster Magistrates’ Court for a warrant of further detention of a period of seven days. A hearing took place on 10 April 2009. The applicants and their representatives were excluded from one part of the hearing. As explained in paragraph 41 of the present judgment “[p]art of the hearing was closed to allow the District Judge to scrutinise and ask questions about the material ...”. I share the view that it is of crucial importance that the judge dealing with the possible extension of detention should acquire knowledge of available evidence against the applicant, but I find it unjustified to exclude the applicant and his representative from the part of the hearing when this discussion took place, thus removing the possibility that the applicant might dispute the relevance of evidence which was decisive for that extension of detention. The decision in the present case to exclude the applicants and their representatives from even one part of the hearing implies that the police did not provide the applicants with adequate information about the reasons for their continued detention.

My opinion is that when the applicants complained about the provision of information from the police as to the reasons for their arrest and detention, and when they insisted that judicial review was an appropriate remedy in respect of their complaints, they already used one of the available remedies. It is clear that they could have used a private-law remedy but I consider that in a situation where there are different effective remedies available to the applicant, he is obliged to exhaust not all of them but the one he finds to be more appropriate than another for the situation at hand. I cannot accept the reasoning given by the judge in these proceedings to the effect that there was another – private law – remedy available, that these claims involved potentially complex disputes of fact or that there was no reason for these proceedings to take up the judicial resources of the Administrative Court, which were required for the numerous urgent and prospective judicial review proceedings issued in the High Court every week. At that time, the applicants were being held pursuant to deportation orders. In order to use the private-law action, as suggested by the judge, “[t]he claimants would not have [had] to return to the UK to give evidence ..., which could instead [have been] provided by way of video-link”! In the reasoning given, it was not suggested that the said court was not competent to deal with the matter but that judicial review proceedings against the police were inappropriate.

Instead of providing any personal conclusion, I would refer to the detailed content of the domestic judicial decision (see paragraphs 75-82 of the present judgment), in which the judge reached this final conclusion, as rephrased in paragraph 82:

“... if, contrary to [the judge’s] view, judicial review proceedings against the police were appropriate, he would refuse permission as the claim was not arguable on the material provided. He accepted that the question whether the decisions of the City of Westminster Magistrates’ Court to issue warrants of further detention were unlawful because inadequate information had been provided to the applicants concerning the reasons for their continued detention was potentially a matter of public law.”

In today’s Europe there is a growing need to fight against all forms of religious radicalism, including aggressive nationalism, but this fight requires minimum guarantees against arbitrariness on the part of agents of the State and against the possible misuse of the powers vested in various State agencies.

Finally, it should be pointed out that the applicants in this case had been released without charge and had immediately been served with deportation orders.