DISSENTING OPINION OF JUDGE JEBENS

I respectfully disagree with the majority as to the scope of the review provided for in the first limb of Article 5 § 3, and also with the minority when it comes to the consequences of the fact that the sitting magistrate did not have the power to order release on bail. I will explain this in the following paragraphs, first by outlining the requirements in Article 5 § 3, then by highlighting some factual elements, and finally by discussing whether there has been a violation.

Article 5 § 3 describes the initial review of detention in criminal cases in its first limb, by stating that the “ judge or other officer ” before whom the arrested person is to be “ brought promptly ” must be “ authorised by law to exercise judicial power ” . The wording implies that the judicial officer must have the power to order release, but does not in itself define the scope of the review. However, the Court has sought to clarify this in its case-law. It has stated that the judicial officer must review “ the circumstances militating for or against detention ” (see Schiesser v. Switzerland , 4 December 1979, § 31, Series A no. 34); “ 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. 25642/94, § 47, ECHR 1999-III); and, in a recent judgment, “ consider whether detention is justified ” ( see Pantea v. Romania , no. 33343/96, § 231, ECHR 2003-VI). In my opinion, this strongly indicates that the judicial officer cannot limit the scope of the review to the lawfulness of the detention and the question of reasonable suspicion. Moreover, such a limited scope would not be sufficient in a great number of cases, where the question in issue is not primarily whether there exists a reasonable suspicion, but whether detention is justified because of the danger of absconding or collusion, or the need to preserve evidence, prevent crime or maintain public order. Circumstances which are related to the person in question, such as very young or old age, illness or frailness, must also be considered. A review which is limited to the lawfulness of the detention and the question of reasonable suspicion could therefore, in my opinion, easily lead to unjustified detentions.

It follows from this that the initial review must be broad and automatic. However, release on bail cannot be ordered by the judicial officer unless it is an actual and realistic alternative in the circumstances of the case. Therefore, release on bail must be subject to a submission by the person detained or the defence lawyer. Accordingly, it cannot normally be included in the automatic review.

In the present case, however, the applicant had instructed his solicitors to apply for release on bail, and a request to that effect was actually put before the magistrate. Furthermore, the police officer who appeared in the magistrates ’ court had no objection to bail, provided that proper conditions

were set. The applicant ’ s release on bail was nevertheless refused because the resident magistrate was not empowered to grant it, on account of the special rules applicable for scheduled offences in Northern Ireland .

The fact that release on bail was not considered by the judicial officer before whom the applicant was brought implies that the applicant was deprived of his right to a full review, which is secured in the first limb of Article 5 § 3. It remains to be discussed, however, whether the fact that the applicant was released one day later, by a decision of the High Court, remedied this deficiency.

The minority have taken the view that the applicant cannot complain that there was a failure to provide him with the requisite judicial control of his arrest and detention because he was released within the maximum period of four days laid down in Brogan and O thers v. the United Kingdom ( 29 November 1988, § 62, Series A no. 145-B). In my opinion, this is not relevant, for the following reasons.

The first limb of Article 5 § 3 contains two rights for persons who are detained on reasonable suspicion of having committed a criminal offence. The first requires that the person be “ brought promptly before a judge or other officer ” , while the second requires that the judicial officer be “ authorised by law to exercise judicial power ” . These rights are linked to each other, notably because they refer to the same judicial officer. Still, they are separate rights in that they refer respectively to the requirements of promptness and automaticity and the thoroughness of the initial judicial control. Deficiencies as to one of the rights can therefore not be remedied by securing the other right.

Turning to the present case, it is undisputed that the applicant was brought before the magistrates ’ court within the time-limit permitted by the first limb of Article 5 § 3. He was, however, denied release on bail by the sitting resident magistrate, notably not because of the merits of the case, but because the resident magistrate did not have that power. In order to be released on bail the applicant had to appeal to the High Court. He was, in other words, obliged to invoke the right to continuous judicial supervision, which is secured in Article 5 § 4 and applies to all deprivations of liberty, in order to obtain a decision as to his release on bail.

Neither the fact that the High Court granted the applicant release on bail, following his appeal, nor the fact that the decision was given one day after the applicant had appeared in the magistrates ’ court can therefore in my opinion remedy the deficiency of the initial judicial review. I accordingly consider that there has been a violation of Article 5 § 3 of the Convention.