CONCURRING OPINION OF JUDGE SILVIS

I agree with the Court ’ s findings of violations in this case. However, a short technical remark is in order concerning the lack of a remedy in respect of the applicant ’ s deprivation of liberty for thirteen hours before he was taken into police custody.

In my view, this part of the applicant ’ s complaint should have been addressed under Article 5 § 4 of the Convention and not under Article 13 in conjunction with Article 5. According to the Court ’ s established case-law, the more specific guarantees of Article 5 § 4 make it a lex specialis in relation to Article 13 (principle stated in De Jong, Baljet and Van den Brink v. the Netherlands , 22 May 1984, § 60, Series A no. 77, and Chahal v. the United Kingdom , 15 November 1996, § 126, Reports of Judgments and Decisions 1996 ‑ V; see, as recent examples, A. and Others v. the United Kingdom [GC], no. 3455/05, § 202, ECHR 2009, and S.T.S. v. the Netherlands , no. 277/05, § 59, ECHR 2011). That being so, Article 5 § 4 (like Article 5 § 5) absorbs the requirements of Article 13 in relation to Article 5.

Admittedly, the Court has found violations of Article 13 in conjunction with Article 5 in some cases involving (alleged) deprivation of liberty. This has happened, on occasion, in cases concerning unacknowledged detention ( İpek v. Turkey , no. 25760/94, § 209, ECHR 2004-II), or where the State ’ s responsibility was engaged in respect of secret detention on its territory ( Husayn (Abu Zubaydah ) v. Poland , no. 7511/13, 24 July 2014), or where the record of an arrest had been destroyed ( Aleksandra Dmitriyeva v. Russia , no. 9390/05, 3 November 2011). It is obvious that the present case differs from cases of those kinds.

The question whether or not the domestic authorities applied a legitimate form of preliminary detention prior to 9.15 p.m. on 9 March 2010 is, in my view, not decisive for the applicability of Article 5 § 4. The Court has established that the applicant ’ s deprivation of liberty for thirteen hours before he was taken into police custody was incompatible with the requirements of Article 5 § 1, which finding does not preclude the applicability of Article 5 § 4. The Convention requirement that an act of deprivation of liberty must be amenable to independent judicial scrutiny is of fundamental importance in the context of the underlying purpose of Article 5 of the Convention, namely to provide safeguards against arbitrariness. What is at stake is both the protection of the physical liberty of individuals and their personal security (see Kurt v. Turkey , 25 May 1998, § 123, Reports 1998 ‑ III; Varbanov v. Bulgaria , no. 31365/96, § 58, ECHR 2000-X; and Stanev v. Bulgaria [GC], no. 36760/06, § 170, ECHR 2012).

Turning to the specific circumstances of this case, considered in retrospect, I find that the lack of a remedy concerning the applicant ’ s deprivation of liberty, examined under Article 13 in conjunction with Article 5, did not place him in a worse position than the more rigorous test under Article 5 § 4 would have done, so that in the end I can certainly live with the outcome.