JOINT SEPARATE OPINION OF JUDGE S ROZAKIS, TULKENS, BOTOUCHAROVA, MYJER AND ZIEMELE

Although we agree with the outcome of the case, we disagree with the reasoning of the majority in reaching that conclusion.

1. The Court has consistently held that the fact that an arrested person had access to a judicial authority is not sufficient to constitute compliance with the opening part of Article 5 § 3 (see Pantea v. Romania , no. 33343/96, § 231, ECHR 2003-VI). The judicial officer must offer the requisite guarantees of independence from the executive and the parties and must have the power to order release, after hearing the individual and reviewing the lawfulness of, and justification for, the arrest and detention (see, for example, Assenov and Others v. Bulgaria , 28 October 1998, § 146, Reports of Judgments and Decisions 1998-VIII : “ ... the officer must have the power to make a binding order for the detainee ’ s release ” ; Nikolova v. Bulgaria [GC], no. 31195/96, § 49, ECHR 1999-II; H.B. v. Switzerland , no . 26899/95, § 55, 5 April 2001; Shishkov v. Bulgaria , no. 38822/97, § 53, ECHR 2003-I; and Rahbar-Pagard v. Bulgaria , nos. 45466/99 and 29903/02, § 49, 6 April 2006 ).

As regards the scope of that review, there is a long-established line of case-law to the effect that:

“ ... under Article 5 § 3 , there is both a procedural and a substantive requirement. The pro cedural requirement places the ‘ officer ’ under the obligation of hearing himself the individual brought before him (see, mutatis mutandis , Winterwe rp [ v. the Netherlands , 24 October 1979 ], p. 24, § 60 , [Series A no. 33] ); the substantive requirement imposes on him the obligations of reviewing the circumstances militating for or against detention, of deciding, by reference to legal criteria, whether there are reasons to justify detention and of ordering release if there are no such reasons ( ... Ireland v. the United Kingdom , [ 18 January 1978 ] , p. 76, § 199 , [Series A no. 25] ) . ” (see Schiesser v. Switzerland , 4 December 1979, § 31, Series A no. 34 )

More recently, this has been expressed by saying that “ [ i ] n other words, Article 5 § 3 requires the judicial officer to consider whether detention is justified ” (see Pantea , cited above, § 231 in fine ), that is, “ to consider the merits of the detention ” (see T.W. v. Malta [GC], no. 25644/94, § 41, 29 April 1999, and Aquilina v. Malta [GC], no. 25642/99, § 47, ECHR 1999-III).

These statements are clearly wide enough to encompass considerations not only of lawfulness and the existence of reasonable suspicion as required by Article 5 § 1 (c) but also whether or not continued detention is justified or necessary in the circumstances of the individual case.

2. This reading is supported by S.B.C. v. the United Kingdom ( no. 39360/98, 19 June 2001) , which provide s persuasive authority for finding that the first obligatory appearance before a judicial officer must encompass bail. Th e case concerned the Criminal Justice and Public Order Act 1994, which provided that persons charged with a serious offence such as murder, manslaughter or rape who had previously been convicted of a similar offence should not be granted bail under any circumstances. This removal of judicial control from the moment of arrest was found to violate Article 5 § 3 of the Convention.

Further, the Court ’ s case-law which deals with the length of pre-trial detention generally underlines the presumption in favour of release. As first held in Neumeister v. Austria (27 June 1968, p. 37, § 4 , Series A no. 8 ), the second sentence of Article 5 § 3 does not give judicial authorities a choice between either bringing an accused to trial within a reasonable time or granting him provisional release. Until conviction, he must be presumed innocent, and the purpose of the provision under consideration is essentially to require his provisional release once his continuing detention ceases to be reasonable (see Jablonski v. Poland , no. 33492/96, § 83, 21 December 2000) . Continued detention can therefore be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweigh the rule of respect for individual liberty laid down in Article 5 of the Convention (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, §§ 110 et seq., ECHR 2000-XI ).

3. It is true that the Court has not had previous occasion to consider the very early stage of pre-trial detention in the context of a bail request , presumably as, in the vast majority of cases, the existence of suspicion and possible risk to the ongoing investigation has provided a ground for detention and any unavailability of bail has not been seriously challengeable. Nonetheless, it cannot be in doubt that there must be an opportunity for judicial consideration of release pending trial at even this stage as there will be cases where the nature of the offence, the state of the investigation or the personal circumstances of the suspected offender are such as to render (further) detention unreasonable or unsupported by relevant or sufficient grounds.

The interpretation of the Convention, and more particularly of Article 5 § 3, to include the obligation on a judge to release a detained person either of his or her own motion or at the detained person ’ s request serves better the fundamental purpose of protecting individual liberty. Interpreting the third paragraph in a restrictive manner which would deny the judge acting under that paragraph the power to release a person whenever the circumstances allowed would frustrate one of its main safeguards, namely that of reducing to a minimum undue restrictions on liberty through the promptness and speediness of judicial control.

4. Accordingly, in order to ensure that the right guaranteed is practical and effective, not theoretical and illusory (see Artico v. Italy , 13 May 1980, § 33, Series A no. 37, which first laid down this guiding principle of interpretation of the Convention), the judicial officer who conducts the first automatic review of lawfulness and the existence of a ground for detention must have full jurisdiction , that is, must also have the competence to consider release, with or without conditions.

While the question of release pending trial is therefore a distinct and separate matter which logically only becomes relevant after the establishment of the existence of a lawful basis and a Convention ground for detention, it must also fall within the scope of the first automatic appearance before a judicial officer. So, in our view, the judge before whom the arrested individual appears must in principle not only have the power to order an accused ’ s release when the detention is not lawful or when there is no – or no longer any – reasonable suspicion, but also when he considers that further deprivation of liberty is , for oth er reasons, no longer justified or necessary.

5. In our opinion the reasoning of the majority in concluding that no automatic bail review is required on the first appearance before a judicial officer is not in conformity with the very purpose of Article 5 § 3 of the Convention: to protect , through prompt judicial control , an individual who has been arrested or detained on suspicion of having committed a criminal offence and to have him immediately released once it is established that there is no – or no longer any – reasonable suspicion justifying the arrest or further deprivation of his liberty, or that there are no – or no longer any – grounds justifying or necessitating the further deprivation of his liberty, or that these grounds can also be addressed by less far- reaching measures than deprivation of liberty, such as release on bail. Or, to put it in other words , the majority place insufficient emphasis on the principle laid down in Article 5 § 1 read in conjunction with Article 5 § 3: at the pre - trial stage an arrested person has t he right to prompt and full judicial control and the right to be set free immediately unless there are (still) sufficient grounds to keep him in custody.

6. In the present case, the applicant – who is a young offender – was arrested on 6 January 2001 at 10 p.m. on suspicion of having carried out a robbery of a petrol station. It should be noted that the offence he committed was without any link to terrorist activity. He was charged at 12.37 p.m. the next day. On 8 January 2001 at 10 a.m., the applicant made his first appearance in the magistrates ’ court, which remanded him in custody. It is not in dispute that the magistrate had the competence to examine the lawfulness of the arrest and detention and whether there were reasonable grounds for suspicion and, moreover, that he had the power to order release if those requirements were not complied with. However, he did not have the power to order release on bail , even though there was no police or other objection to such a course, with the result that the applicant was, without any justification, retained in custody. In that respect, therefore, the applicant ’ s appearance before the magistrate did not comply with the requirements of Article 5 § 3 of the Convention.

However, it is nonetheless the case that, following his application to the High Court, which was heard on 9 January 2001, the applicant was released. As this occurred less than 36 hours after his arrest, within the maximum period of four days laid down in Brogan and Others v. the United Kingdom (29 November 1988, Series A no. 145-B), the applicant cannot complain that there was a failure to provide him with the requisite judicial control of his arrest and detention. In the circumstances, the requirements of promptness and speediness , which are, in our view, of paramount importance, have been satisfied. This is why, accordingly, we came to the conclusion that, in this case, there has been no violation of Article 5 § 3 of the Convention.