CONCURRING OPINION OF JUDGE BORREGO BORREGO

For the purpose of a review under Article 5 § 3 of the Convention, the Court ’ s case-law establishes two criteria: the grounds for the continuous detention and the conduct of the proceedings. On the basis of both criteria, the Court examines the particular circumstances of the case and decides on the reasonableness of the length of the applicant ’ s detention on remand. In the present case, the Court has applied these general criteria ( see paragraphs 37- 45 of the judgment) and has examined the unusual, even exceptional, circumstances of this case (281 days of hearings, among others). The Court has therefore h e ld that there has been no violation of the Convention. This is also my conclusion.

I nevertheless respectfully disagree with the preambular paragraph 37 as well as with the use of the words “international terrorism”, which are repeatedly mentioned, four times in all (paragraphs 37, 40, 44 and 47).

Firstly, I find the initial considerations in paragraph 37 regarding international terrorism superfluous. In my opinion, they could lead readers to think that, in addition to the above-mentioned general criteria which characteri s e its jurisprudence, the Court has created a new criterion, concerning a specific category of crime: international terrorism. I think that international terrorism is not and should not be considered as a criterion. On the contrary, the nature of the crime has to be examined as part of the particular circumstances of every case.

The very specific and relevant circumstances of the instant case are weakened by the fact that the two general criteria are locked in between the initial general approach and the final overall assessment, which stresses the international terrorism aspect. I am convinced that there is no violation of the Convention, because the application of the two general criteria to the present case so proves. The insistence on referring to international terrorism and the special weight given to this crime is, in my opinion, unnecessary, and it could be dangerous for the Convention system.

Finally, I would like to express my complete disagreement with the expression “international terrorism”. Not only is it wrong, but it could lead to misunderstandings. Indeed, it could give rise to questions or doubts. For instance, one might wonder whether there are different categories of the crime called terrorism and whether these different categories have different consequences. One might also wonder whether terrorism can be considered “international” depending on the terrorists ’ nationality (in which case, would the attack of 7 July 2005 in London , where the alleged perpetrators were British, be considered an example of international terrorism?). Other

questions may arise regarding the different nationalit ies and role s of those who plan the attack, those who finance it and those who execute it. And regarding the victims of terrorism, are there different categories of victim, depending on the type of terrorism? That would be repugnant .

“Popular democracy”, “organic democracy” and other similar expressions became part of European history and we all remember this . I would therefore gently ask the Court not to insist on using qualif ications, and thus trying to make artificial distinctions , with respect to something that is purely and simply a crime: terrorism.