PARTLY DISSENTING OPINION OF JUDGE MAHONEY

Having voted against a violation of Article 7, I felt it appropriate also to vote against point 3 of the operative provisions, making a consequential order directing the respondent State to release the applicant at the earliest possible date. This was because I did not consider such an order to be warranted on the sole basis of the finding of a violation of Article 5 § 1 of the Convention on the ground of the defective “quality” of the applicable Spanish law.

In any event, the present case is not at all comparable to earlier cases such as Assanidze v. Georgia ([GC], no. 71503/01, §§ 202-03, ECHR 2004 ‑ II) and IlaÈ™cu and Others v. Moldova and Russia ([GC], no. 48787/99, §§ 488-90, ECHR 2004-VII), where the deprivation of liberty found by the Court was not merely contrary to procedural safeguards laid down by the Convention but was the product of a flagrant denial of justice, wholly arbitrary and offensive to the rule of law. Nor, in my view, can any support be derived from Aleksanyan v. Russia (no. 46468/06, §§ 239 ‑ 40, 22 December 2008) or Fatullayev v. Azerbaijan (no. 40984/07, §§ 175-77, 22 April 2010), cited in the present judgment (at paragraph 138 in fine ), where the detention in question was characterised as “unacceptable”, in the first case as “not serv[ing] any meaningful purpose under Article 5” and in the second as being the consequence of criminal convictions in relation to which “there existed no justification for imposing prison sentences”.

[1] . Court with jurisdiction in terrorist cases, among other things, sitting in Madrid.

[2] . Prison sentence of between one month and one day and six months.

[3] . By a transitional provision of the 1981 Prison Regulations the powers vested in the Patronato de Nuestra Señora de la Merced were transferred to the judges responsible for the execution of sentences ( Jueces de Vigilancia Penitenciaria ).

[4] . Interpretation of the second transitional provision of the Criminal Code of 1995. See also the agreement adopted by the plenary Criminal Division of the Supreme Court on 12 February 1999, concerning the application of the new limit to the term of imprisonment to be served as laid down in Article 76 of the 1995 Criminal Code.