PARTLY DISSENTING OPINION OF JUDGE BO Å NJAK

58 . I respectfully disagree with the majority that the Court is not required to deal with the merits of the applicant ’ s complaint under Article 5 § 4 of the Convention.

59 . The applicant inter alia claimed that the domestic legislation did not provide for judicial review or any other remedy for his complaint concerning the breach of his right to liberty as guaranteed by Article 5 of the Convention. This complaint is to be separated from his claim that he had been unlawfully deprived of his liberty for the period he spent under police officers ’ control and at the T.N.A.D. prior to his placement in police custody. The Convention specifically empowers our Court not only to review whether, in a particular case, the conditions of Article 5 § 1 were met, but also and independently whether the person deprived of his or her liberty was entitled to challenge the lawfulness of the deprivation of liberty before a national court in conformity with the requirements of Article 5 § 4 of the Convention.

60 . The wording of Article 5 § 4 indicates that it becomes operative immediately after arrest or detention and is applicable to everyone who is deprived of his liberty. Accordingly, in the case at hand this required that a judicial remedy be available whereby the applicant could have challenged his detention and obtained release (see Petkov and Profirov v. Bulgaria , nos. 50027/08 and 50781/09, §§ 66-67, 24 June 2014). If an appropriate remedy is not available, this in itself is a violation of the Convention, more precisely of Article 5 § 4. Such an eventual violation is independent from the question whether a particular case of deprivation of liberty met the substantive criteria outlined in Article 5 § 1 of the Convention.

61 . In our present case, the Chamber has rightfully ruled that there has been a violation of Article 5 § 1 of the Convention. In examining that part of the complaint, it has dismissed the Government ’ s preliminary objection as to the applicability of the Articles 278 or 140 of the Romanian Code of Criminal Procedure in the instant case. In addition, the Court has already established the absence of an effective domestic remedy in a similar case where the applicant was deprived of his liberty for twelve hours on the basis of a warrant to appear (see Iustin Robertino Micu, cited in the judgment, §§ 109-110). Moreover, the applicant in the present case had raised before the domestic courts his complaint concerning unlawful deprivation of liberty prior to his placement in police custody, but the courts had considered that they were not competent to decide on this complaint. Therefore, the Court should conclude that the applicant ’ s deprivation of liberty from 8.00 a.m. to 5.10 p.m. on 12 December 2008 was not subject to any judicial review and that there has accordingly been a breach of Article 5 § 4 of the Convention.