JOINT PARTLY DISSENTING OPINION OF JUDGES SICILIANOS, SPANO AND HARUTYUNYAN

I.

1. On 26 and 27 July 2005 the applicant appeared before a family court judge in the context of proceedings on the basis of his application for contact with two of his five children. The judge decided to hear at the same time an application by his wife for the applicant to be committed for contempt of court. The applicant, thus facing the real possibility of being sent to prison, was not represented by a lawyer and the judge made no inquiries into why the applicant was unrepresented or whether he wanted representation. The applicant was clearly unable to plead effectively against the application to detain him. This notwithstanding, the judge made an order depriving the applicant of his liberty by committing him to prison for three months because he had breached an undertaking not to contact his wife and family members, as well as an injunction preventing him from using or threaten ­ ing violence towards his wife. On appeal against the contempt finding, the Court of Appeal, unsurprisingly, quashed both the finding of contempt and the sentence imposed.

2. The majority find that notwithstanding this turn of events, the applicant ’ s detention order was lawful under Article 5 § 1 (a) of the Convention and not arbitrary. Taking firstly account of the fact that the Government do not directly or indirectly invoke Article 5 § 1 (a) of the Convention as a basis for the detention and, secondly, bearing in mind the findings of the Court of Appeal, we respect ­ fully dissent from the majority ’ s findings that there has been no violation of Article 5 § 1 in the applicant ’ s case.

II.

3. The nature and formulation of Article 5 § 1, presenting an exhaustive list of permissible exceptions to the general rule that a person should not be deprived of his liberty, requires that the Government invoke a particular basis under one or more of the subparagraphs of that provision in support of its claim that a particular detention order was lawful. It is not for this Court to examine, proprio motu , a complaint under Article 5 on the basis of a particular justification provided by that provision not invoked, directly or indirectly, by the defendant Government. Thus, in the case of Beiere v. Latvia (no. 30954/05, § 53, 29 November 2011), the Court found that “the deprivation of the applicant ’ s liberty was not ordered in accor ­ dance with Article 5 § 1 (b) of the Convention”. The Court then concluded that as the Government “[had] not argued that it was justified by any of the remaining subparagraphs of Article 5 § 1, [there had] been a violation of Article 5 § 1”. It also goes without saying that the Court cannot ascribe to the applicant the intention to assist the Government in this endeavour by relying on his pleadings in this regard, thus basing its examination of the applicant ’ s complaint on a subparagraph of Article 5 § 1 only invoked by the applicant and not the Govern ­ ment.

4. It follows that if the Government rely on a particular subparagraph of Article 5 § 1 before this Court in their defence against a complaint of unlawful deprivation of liberty, the Court ’ s examination is limited to reviewing the Government ’ s pleaded justification. However, that is not what happened in the present case.

5. As stated in paragraph 68 of the judgment, the Government argued that the applicant ’ s detention was covered by Article 5 § 1 (b) of the Convention because he was detained for non-compliance with an undertaking and a court order and/or the detention was to secure compliance with the undertaking and court order. Article 5 § 1 (a), ultimately found by the majority to provide accep ­ table justification for the applicant ’ s detention, is not invoked by the Government, but is referred to only by the applicant in his pleadings.

6. One may ask why this distinction matters. The reasons are twofold. Firstly, as explained in more detail below (see paragraph 12), it is the settled case-law of the Court that the notion of arbitrariness in the context of Article 5 “varies to a certain extent depending on the type of detention involved” ( Saadi v. the United Kingdom ([GC], no. 13229/03, ECHR 2008). Secondly, Article 5 § 1 (a) forms in substance the applicable exception to all deprivations of liberty in the form of prison sentences for criminal acts falling under Article 6 of the Convention. Since the Court is not an appeal court against decisions of national courts, it will not substitute its own views on the appropriateness of a sentence for those national authorities. However, Article 5 § 1 (b) is different. In the assessment of whether a detention order is arbitrary, the first limb, which is clearly applicable in the present case, requires a strict assessment of the necessity of the detention for a particular and well-defined aim, that is to say to secure compliance with a lawful order of a court which may or may not be a criminal act under domestic law. The same applies in principle to those detentions that are justified under Articles 5 § 1 (d), (e) and (f).

7. In short, by proceeding on the basis that both Articles 5 § 1 (a) and (b) were applicable in the present case, and accepting that the applicant ’ s detention was justified under the former without the Government invoking this exception in its pleadings, the majority have in our view subjected the applicant ’ s complaint to a less stringent examination of lawfulness than was required by the Government ’ s stated justification for his deprivation of liberty. Applying Article 5 § 1 (b) would have led to the opposite conclusion, a finding of a violation in the applicant ’ s case, as we will now explain.

III.

8. The relevant principles governing the assessment of “lawfulness” and the notion of “arbitrary detention” under Article 5 § 1 were set out in the Court ’ s Grand Chamber judgment in Mooren v Germany ([GC], no. 11364/03, §§ 72-75 and 77-81).

9. In Mooren, cited above, the Court recalled that where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof. Compliance with national law is not, however, sufficient: Article 5 § 1 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness (see § 72).

10. Although it is primarily for the national authorities, notably the courts, to interpret and apply domestic law, under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention and the Court can and should therefore review whether this law has been complied with. However, the Court has explained that not every fault discovered in a detention order renders the underlying detention unlawful as such for the purposes of Article 5 § 1. A period of detention is, in principle, “lawful” if it is based on a court order. A subsequent finding of a superior domestic court that a lower court erred under domestic law in making the order will not necessarily retrospectively affect the validity of the intervening period of detention (see Mooren , cited above, §§ 73-74).

11. The Court then went on to further specify the circumstances under which the detention remained lawful in the said intervening period for the purposes of Article 5 § 1: for the assessment of compliance with Article 5 § 1 of the Convention, a basic distinction has to be made between ex facie invalid detention orders – for example, given by a court in excess of jurisdiction or where the interested party did not have proper notice of the hearing – and detention orders which are prima facie valid and effective unless and until they have been over ­ turned by a higher court. A detention order must be considered as ex facie invalid if the flaw in the order amounted to a “gross and obvious irregularity” in the exceptional sense indicated by the Court ’ s case-law. Accord ­ ingly, unless they constitute a gross and obvious irregularity , defects in a detention order may be remedied by the domestic appeal courts in the course of judicial review proceedings (see § 75).

12 . As regards the principles governing the notion of arbitrariness, the Court in Mooren referred, inter alia, to §§ 67-68 of the Court ’ s judgment in Saadi v. the United Kingdom, cited above, where the Grand Chamber held that in the light of the purpose of Article 5 § 1, the provision requires arbitrariness review “in addition to compliance with national law”. The notion of arbitrariness in the context of Article 5 “varies to a certain extent depending on the type of detention involved”. Importantly for the present case, the Court in Saadi held as follows (see § 69):

“ The condition that there be no arbitrariness further demands that both the order to detain and the execution of the detention must genuinely conform with the purpose of the restrictions permitted by the relevant subparagraph of Article 5 § 1. ”

13. In the light of the general principles stated above, the questions that arise in the present case are firstly whether the procedural defects in the course of the committal pro ­ ceedings, in which the applicant was detained for three months, constituted gross and obvious irregularities within the meaning of Mooren . As arbitrariness review under Article 5 § 1 is required in addition to compliance with national law, it must secondly be determined whether the order to commit the applicant “genuinely conformed with the purpose of the restriction under Article 5 § 1 (b)” even assuming that the procedural defects did not attain the level required by Mooren . Lastly, before proceeding with our examination on this basis, we observe that in the application of these principles, we, like the majority (see paragraph 74 of the judgment), will take into account the well-settled principle in the Court ’ s case-law that only a narrow interpretation of the per ­ missible grounds under Article 5 § 1 is consistent with the aim of this provision, namely to ensure that no one is arbitrarily deprived of his liberty. It is therefore for the Government to convincingly demonstrate that a permissible ground for restricting the applicant ’ s liberty existed on the particular facts of the case.

IV.

14. We shall begin by examining whether the detention order was in compliance with national law, applying the “gross and obvious irregularity test” under Mooren (see paragraph 11 above).

15. As is necessary in cases of this nature, the inquiry must begin with the domestic courts ’ findings on issues of lawfulness for the purposes of domestic law, both substantive and procedural, in the present case the Court of Appeal ’ s judgment quashing both the finding of contempt and the sentence imposed (see paragraphs 16-25 of the judgment). Lord Justice Moses ’ s analysis can be summarised as follows:

Firstly, he held that there was “no reason why the applicant should not [have been] represented” (paragraph 19).

Secondly, “the decision to hear the application for committal at the same time as the application for contact led to inescapable errors in procedure” and “placed the applicant in an impossible position” (paragraphs 20-21).

Thirdly, and most importantly in our view, the family court judge “paid no heed to the purpose of punishment in contempt proceedings” and since the applicant had not been represented and had never been given an opportunity to mitigate, the sentencing phase of the committal was “fatally flawed” (paragraph 22).

Fourthly, Lord Justice Moses made a causal connection between the lack of legal representation and the outcome stating that there was “ample material to suggest that legal representation would have made a difference” as there was “material relevant to the facts of the breaches to which the judge ’ s attention ought to have been drawn” (paragraph 23).

16. We also note that Lord Justice Wall, in a concurring opinion, agreeing with his colleague in the Court of Appeal, summed up the analysis by declaring that “the defects in the process” were considered “so serious” that the “interests of justice” required both the committal order and the consequential sentence of imprisonment to be set aside (see paragraph 24).

17. It is true that the Court of Appeal did not explicitly refer to or rely on Article 5 in its examination of the applicant ’ s appeal against the contempt finding but only referred to Article 6 and the applicant ’ s right to legal assistance under Article 6 § 3 (c) and Article 6 § 2 on the burden of proof. Therefore, the judgment cannot be read as necessarily concluding that the detention order was ex facie invalid in the light of the gross and obvious irregularity test under Mooren , cited above. Neverthe ­ less, we consider it self-evident that the findings of the domestic court, which, in and of themselves, cast serious doubt on the lawfulness of the applicant ’ s detention, must be given substantial weight in our independent exam ­ ination of whether the detention order was lawful for the purposes of Article 5 § 1 (b).

18. Drawing on the Court of Appeal ’ s characterisation of the procedural defects in the applicant ’ s case, we firstly emphasise that although he faced being sent to prison, he was not assisted by a lawyer, a right which he clearly had under domestic law as interpreted by the Court of Appeal. According to Lord Justice Moses this procedural defect had very detrimental consequences for the ability of the applicant to be able to defend himself in any meaningful sense. We note that in Mooren , cited above, § 75, one of the examples given by the Grand Chamber of where a detention order might be ex facie invalid, due to a gross and obvious irregularity in the proceedings, is “where the interested party did not have proper notice of the hearing”. In our view, and here we fully share the characterisation given to the proceedings by the Court of Appeal, although the applicant was given notice to appear and attended the hearing, he was firstly put in an “impossible position” by having on the one hand to make representations in the contact proceedings and on the other to defend himself without any legal knowledge against the application for committal. Secondly, he was incapable, owing to his lack of legal assistance, to draw the judge ’ s attention to “material relevant to the facts of the breaches”, the actual charges upon which the committal order was based, and thirdly to make any arguments against the actual prison sentence, Lord Justice Moses characterising this phase of the proceedings as “fatally flawed”.

19. In other words, we do not see that there is a fundamental difference between the nature, scope and consequences of these very serious procedural defects in the committal proceedings, manifested in the applicant ’ s complete lack of any meaningful ability to defend himself in the absence of a lawyer, and the Grand Chamber ’ s explicit recognition in Mooren that a simple lack of notice to appear at all would constitute a gross and obvious irregularity having the effect that a detention order must be considered ex facie invalid and thus not lawful for the purposes of Article 5 § 1. Indeed, for the purposes of the requirements of lawfulness under this provision, and taking account of the nature of the elements to be determined under Article 5 § 1 (b), by proceeding with committing the applicant to prison without giving him any real and effective opportunity of defending himself against the committal order with the assistance of a lawyer, the procedural defects were not materially different in their overall scope and con ­ sequences from a situation where the applicant would have simply been committed to prison without having been notified of the dates of the hearings .

20. In sum, we conclude that the committal proceedings in the present case were so infected with manifest and grave procedural errors that the detention order must be considered to have been ex facie invalid within the meaning of the Grand Chamber judgment in Mooren , cited above, and the applicant ’ s detention was thus not lawful under Article 5 § 1.

21. We note that even assuming that the procedural defects in question were not considered to amount to gross and obvious irregularities under Mooren , it is clear in our view that the committal order cannot, in any event, survive the test of arbitrariness as formulated in Saadi , cited above, § 69, and confirmed in Mooren . We recall the principle as enunciated in Saadi that “the condition that there be no arbitrariness further demands that both the order to detain and the execution of the detention must genuinely conform with the purpose of the restrictions permitted by the relevant subparagraph of Article 5 § 1”.

22. Applying this test of arbitrariness in the context of Article 5 § 1 (b) to the facts of the present case, it suffices, in our view, to recall that in the appeal proceedings against the contempt finding, the Court of Appeal found that the family court judge had “paid no heed to the purpose of punishment in contempt proceedings” and the sentencing phase had thus been “fatally flawed”. That finding at domestic level is, for present purposes, decisive for us in also con ­ cluding that the Government have not convincingly demonstrated that the order to detain the applicant, Mr Hammerton, genuinely conformed with the purpose of Article 5 § 1 (b) to secure compliance with the lawful order of a court.