SEPARATE OPINION OF JUDGE BORREGO BORREGO

(Translation)

I voted in favour of finding that there had been no violation. However, in my opinion this application should have been declared inadmissible as being manifestly ill-founded (Article 35 § 3 of the Convention).

Was it open to the Grand Chamber to declare the application inadmissible? Without a shadow of a doubt. In the judgment in Azinas v. Cyprus ( [GC], no. 56679/00 , § 32, ECHR 200 4-III ), for instance, the Grand Chamber held that “ the Court [could] reconsider a decision to declare an application admissible ... ” . More recently, in Blečić v. Croatia ( [GC], n o. 59532/00, § 65, ECHR 2006-III ) the Grand Chamber reaffirmed the possibility of “ re consider [ing] a decision to declare an application admissible ... at any stage of the proceedings ” in accordance with A rticle 35 § 4 of the Convention.

The composition of the Grand Chamber which examined the present case was determined by Rule 24 § 2 of the Rules of Court. Accordingly, the members of the Chamber that had relinquished jurisdiction after declaring the application admissible were also members of the Grand Chamber . However , where a case is referred to the Grand Chamber under the procedure laid down in A rticle 43 of the Convention, the Grand Chamber, as provided in Rule 24 § 2 (d) , does not, save for the exceptions listed in the Rule, include any of the judges who sat in the original Chamber that delivered the judgment or ruled on the admissibility of the application .

It would therefore seem easier to reconsider the admissibility of an application where it is referred to the Grand Chamber under A rticle 43 of the Convention than where it is referred under A rticle 30 , since in the latter case the Grand Chamber also includes the members of the C hamb er that relinquished jurisdiction after the admissibility stage . However , this difference in the composition of the Grand Chamber according to the origin of its intervention ( which I might perhaps describe as illogical ) does not preclude the Court from declaring an application inadmissible “ at any stage of the proceedings ” .

Was this application manifestly inadmissible ? In my opinion, it was .

As is pointed out in paragraph 47 of the judgment, in Brogan and Others v. the United Kingdom ( 29 November 1988, Series A no. 145-B ) the Court identified a maximum period of four days for detention without appearance before a judge . In the present case, less than three days elapsed between the applicant ’ s detention ( on a Saturday evening ) and his release by order of a judge . I n general, where the period in question is so short, as in this instance, the application is decla red inadmissible by a Committee.

However, in the present case the Grand Chamber decided to examine whether the magistrate before whom the applicant first appeared had the power to order his release .

I should like to make two points here . Firstly, the Court “ is not required to examine the impugned legislation in abstracto , but must confine itself to the circumstances of the case before it ” ( see Brogan and Others , cited above, § 53 ). In my view, the judgment in the present case is precisely an example of a review in abstracto of domestic law .

Secondly, in a judgment the only reasoning that has the force of res judicata is the ratio decidendi . In the present case it is clear that the ratio decidendi for the finding that there had been no violation was the short period between the applicant ’ s arrest and his release on bail . Even if the rest of the judgment is important, not least because it is a Grand Chamber judgment , anything that does not constitute the ratio decidendi is merely an expression of an opinion and becomes superfluous. Similarly, while I agree about the importance of procedure, I consider that repeatedly magnifying the procedural aspect at all times and for all purposes creates the risk of turning procedure into a new golden calf to be venerate d. That, in my view, would be taking things too far .

I do not think that it would be easy to explain to the general public, to the European citizen, that the Grand Chamber of the European Court of Human Rights has devoted all its attention and time to the examination of a complaint submitted by an applicant who was found guilty of robbery and was released on bail three days after being arrested . Hence my separate opinion .