JOINT PARTLY DISSENTING OPINION OF JUDGES NUSSBERGER, MØSE AND HÜSEYNOV

We have voted against finding a violation of Ar ticle 5 § 4 of the Convention. In our view the majority have based their reasoning on a formalistic interpretation of the Court ’ s case-law and have not sufficiently taken into account the specific circumstances of the present case.

I. Formalistic versus substantive interpretation of Article 5 § 4 of the Convention

Article 5 § 4 of the Convention grants a very important right, the right to judicial control of the lawfulness of detention. In the present case two different courts, the District Court and the Regional Court, ruled ten times within four months on the lawfulness of the applicant ’ s detention order before and after the first-instance court ’ s judgment [1] , and extensively discussed all the relevant arguments. As acknowledged by the majority, “this frequency ... was more than satisfactory in terms of the Convention ’ s standards” (see paragraph 36 of the judgment). Nevertheless, the majority found a violation of Article 5 § 4 due to a failure to meet the requirements of adversarial procedure and equality of arms in the eleventh and final round of supervision before the Court of Appeal, even though the applicant did not advance any new arguments at this stage but simply referred to his previous submissions (see paragraph 11 of the judgment). The critique is focused exclusively on the fact that the Court of Appeal ’ s decision was taken before the defence had seen the observations of the prosecution, and that the request for a subsequent hearing was dismissed, again without the observations of the prosecution being sent to the defence lawyer.

In our view this formalistic interpretation of Article 5 § 4 of the Convention loses sight of the substance of this Convention guarantee. The purpose of Article 5 § 4 of the Convention is to prevent arbitrariness. The idea is not to monitor compliance with the formalities of the review procedure, but to ensure the separation of powers between the executive and the judiciary in ordering detention and to guarantee thorough judicial control of the lawfulness of detention orders. In the present case, there cannot be any doubt that the judicial control was thorough.

We accept that there was a formal mistake in the present case (see point III (1) below) but argue that this formal mistake did not impact on either the fairness (point III (2)) or the effectiveness (point III (3)) of the review procedure, which has to be seen as a whole (point III (4)). Before discussing these issues we have some comments to make on the Court ’ s case-law under Article 5 § 4 (see point II below).

II. The Court ’ s case-law

It is common ground that although it is not always necessary for the procedure under Article 5 § 4 to be attended by the same guarantees as those required under Article 6 § 1 of the Convention for criminal or civil litigation, it must have “a judicial character and provide guarantees appropriate to the kind of deprivation of liber ty in question” (see paragraphs 36 and 37 of the judgment, with reference to Idalov v. Russia [GC], no. 5826/03, § 161, 22 May 2012, which related to the applicant ’ s absence from appeal hearings). As regards specifically the requirements that the proceedings “must be adversarial and must always ensure equality of arms between the parties”, the majority refer to Lanz v. Austria (no. 24430/94, 31 January 2002), and Grauzinis v. Lithuania ( no. 37975/97, 10 October 2000).

In Lanz the Chamber explained (§ 41) that these requirements are derived from the right to an adversarial trial as laid down in Article 6 of the Convention. Referring to previous case-law, it stated that Article 6 had “some application to pre-trial proceedings”. In view of the dramatic impact of deprivation of liberty on the fundamental rights of the person concerned, proceedings conducted under Article 5 § 4 of the Convention should “in principle” also meet, to the largest extent possible under the circumstances of an ongoing investigation, the basic requirements of a fair trial, such as the right to an adversarial procedure.

Besides noting the flexible formulation “in principle”, we would point out that, whereas Lanz related to pre-trial detention under Article 5 § 1 (c) of the Convention, the decisions to extend the applicant ’ s detention in the present case were made after the applicant ’ s conviction and hence under Article 5 § 1 (a).

The Chamber in Lanz further observed (§ 42) that Article 5 § 4 guarantees no right, as such, to appeal against decisions ordering or extending detention. The intervention of one organ satisfies Article 5 § 4, on condition that the procedure followed has a judicial character and gives to the individual concerned guarantees appropriate to the kind of deprivation of liberty in question. Nevertheless, a State which sets up a second level of jurisdiction for the examination of applications for release from detention – as in the present case – must “in principle” accord to the detainee the same guarantees on appeal as at first instance.

Again, it is worth noting the flexible formulation “in principle”, not only as regards the extent to which the guarantees developed under Article 6 apply under Article 5 § 4 (see above), but also as to whether they apply fully at the appellate level in detention proceedings, as in the present case.

Grauzinis too differs from the present case. It related to pre-trial detention and the applicant had, repeatedly, not been brought before a judge. Unsurprisingly, the Court found a violation of Article 5 § 4 because the applicant had not been present during pre-trial remand hearings where his presence was required so that he could give satisfactory information and instructions to his counsel (§§ 28, 33 and 34). Furthermore, we also consider it important that the Court assessed the overall fairness of the proceedings. Before concluding it stated as follows (§ 34):

“Furthermore, viewed as a whole, these and the subsequent proceedings failed to afford the applicant an effective control of the lawfulness of his detention, as required by Article 5 § 4 of the Convention.”

III. Fairness and effectiveness of the review procedure in the present case

We would accept that there was a formal mistake in the present case (1), but argue that this formal mistake did not impact on either the fairness (2) or the effectiveness (3) of the review procedure, which has to be seen as a whole (4).

(1) Extent of the deficiencies in the procedure

It is not disputed that the Court of Appeal took its decision of 3 February 2011 relating to the continuation of the applicant ’ s detention without informing the defence of the written observations of the prosecution authorities. The defence had no opportunity to comment on them. This specific part of the proceedings was thus not adversarial; equality of arms was not guaranteed. Nevertheless, the defence had a remedy against this deficiency in the procedure and could request a subsequent hearing. This request was declared inadmissible as the court held that the observations of the prosecution had not contained any new information and the court ’ s decision had not been based on any incorrect factual or procedural considerations (see paragraph 18 of the judgment). That means that the national courts analysed the substance of the complaint, that is to say, whether the formal mistake had any negative consequences for the applicant. This second procedure was however also problematic as, again, the observations of the prosecution were not sent to the defence. The applicant did have another remedy, as he was able to bring his complaint before the Constitutional Court (where he was, however, unsuccessful). Thus, the deficiency in the procedure was reviewed in substance, but part of the review procedure was open to criticism as well.

Not every formal mistake is, however, a human rights violation.

(2) Fairness of the procedure

According to the long-standing case-law of the Court, the control mechanism in respect of the lawfulness of detention as such does not fall under Article 6 § 1 of the Convention as it does not concern “the determination of a criminal charge”. Nevertheless, and rightly so, the Court has transposed the guarantees of a fair trial, especially the right to an adversarial procedure and equality of arms, to proceedings under Article 5 § 4 of the Convention. In this context it seems not to be entirely clear whether the adversarial character of the procedure and equality of arms should be understood as formal or substantive guarantees.

In the view of the majority these guarantees are purely formal. The majority rely on a narrow reading of Lanz and stress legal certainty, stating that “the Court considers that it is neither for the domestic court competent for the proceedings, nor for this Court, to assess the substance of submissions made by either one of the parties to the proceedings and to make the exchange of observations conditional on the outcome of such an assessment” (see paragraph 41 of the judgment). While we agree with this statement, we think that, if a formal mistake has been made and a review procedure is granted to correct it, it is acceptable for this procedure to focus on the substantive question of real disadvantage. This is in line with the Court ’ s case-law, which interprets the principle of equality of arms in the light of what is essential in challenging a detention order (see, among other authorities and mutatis mutandis , Mooren v. Germany [GC], no. 11364/03, § 124, 9 July 2009).

If we consider the substantive aspect of equality of arms, it cannot be said that the applicant was not in a position to effectively challenge the lawfulness of his detention. It is not disputed by the parties that the relevant observations of the prosecution did not contain any new information or argument on this aspect. The observations of 28 January 2011 requested the dismissal of the appeal, nothing more (see paragraph 12 of the judgment). The observations on the request for a subsequent hearing, submitted on an unspecified date (see paragraph 17), did not in any way concern the lawfulness of the applicant ’ s detention, but rather the question whether a subsequent hearing should be granted.

Thus, while there was a formal violation of equality of arms, it cannot be argued that there was a substantive violation of this guarantee.

(3) Effectiveness of the control

While the fairness of the procedure is the core of the Convention guarantee under Article 6 of the Convention, the idea behind Article 5 § 4 is to avoid arbitrariness and guarantee the effectiveness of the procedure to review the lawfulness of detention.

In the present case, there can be no doubt that all the applicant ’ s arguments were analysed in substance. The review procedure was effective and devoid of arbitrariness.

(4) Analysis of the procedure as a whole

The majority seem to concentrate their analysis only on the eleventh set of review proceedings before the Court of Appeal (see paragraph 39 of the judgment) and do not consider the fairness and effectiveness of the procedure as a whole. We would argue that, as the principle of a fair trial enshrined in Article 6 of the Convention is transposed to Article 5 § 4 proceedings, this cannot be done without also transposing the holistic view which the Court has developed in its case-law on Article 6 of the Convention, according to which “[c]ompliance with the requirements of a fair trial must be examined in each case having regard to the development of the proceedings as a whole and not on the basis of an isolated consideration of one particular aspect or one particular incident ...” (see Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 250, ECHR 2016). As mentioned above (point II), this was done in Grauzinis in the context of Article 5 § 4 of the Convention; in that case the Court did transpose the holistic view.

Analysed as a whole, the procedure, involving four different courts, four levels of supervision and a comprehensive discussion of all the arguments –all within a period of four months for the ordinary courts or eight months including the Constitutional Court proceedings – cannot be seen as unfair or ineffective.

In this context it might be worth mentioning that the guarantees offered by the German Code of Criminal Procedure went beyond the Convention requirements in two important aspects.

Firstly, the applicant was already convicted and was therefore lawfully detained on the basis of Article 5 § 1 (a) of the Convention. As the supervision required by Article 5 § 4, according to the Court ’ s case-law, is already incorporated in the sentencing court ’ s decision (see De Wilde, Ooms and Versyp v. Belgium , 18 June 1971, § 76, Series A no. 12, and Wynne v. the United Kingdom , 18 July 1994, § 36, Series A no. 294-A), an assessment of the lawfulness of the applicant ’ s detention was no longer required by the Convention. Had the German courts refused to review the detention order after the judgment of 6 December 2010 in which the applicant was sentenced to two years and six months ’ imprisonment, there would not have been a violation of the Convention. The majority do not give any reason why they deem it necessary to go beyond the existing case ‑ law in this respect (see paragraph 36 of the judgment).

Secondly, Article 5 § 4 of the Convention does not compel the Contracting States to set up a second level of jurisdiction for the examination of the lawfulness of detention. In this respect as well the control standard according to German law was higher than the Convention standard.

While, according to the Court ’ s case-law, a State which sets up a second level of jurisdiction for the examination of applications for release from detention must in principle accord to the detainee the same guarantees on appeal as at first instance (see Lanz , cited above, § 42), it is important to note that the case-law in this respect is not rigid, but emphasises that the guarantees have to be applied “in principle” (see point II above).

To us it seems difficult to argue that the guarantees were not applied “in principle” in the present case.

IV. Concluding remarks

This is not a very serious case, as shown by the fact that the majority did not even choose to award compensation. Nevertheless, it raises more far-reaching problems of interpretation of the Convention. Firstly, it seems doubtful what the message should be if the Court finds violations in situations where the human rights guarantees – seen as a whole – clearly exceed the requirements of the Convention. Secondly, while legal certainty is very important, it should not be misunderstood as the reduction of substantive guarantees to formal guarantees. Form and procedure matter, but in human rights protection they are not an end in themselves. The Court should always look behind appearances and focus on the substance. Thirdly, we think that it is very important to interpret the Convention in a consistent manner. The requirements of a fair trial under Article 5 § 4 of the Convention should not exceed what is required under Article 6 of the Convention.

Based on all these reasons, we have come to the conclusion that there has been no violation of Article 5 § 4 of the Convention in the present case, as the applicant had ample opportunities to have the lawfulness of his detention reviewed.

[1] Between 30 August 2010 and 11 November 2010 the applicant’s detention was examined eight times ( see para graph 7 of the judgment ). The ninth decision was taken on 6 December 2010, the same day on which the judgment had been adopted ( see para graph 8). The tenth decision was taken on 8 December by the District Court , which did not allow the appeal ( see para graph 10).