DISSENTING OPINION OF JUDGE SILVIS JOINED BY JUDGE LÓPEZ GUERRA

1. The applicant absconded from Slovakia to the Czech Republic when released on parole after having served part of an eight-and-a-half-year prison sentence. At the request of the authorities he was then extradited back to Slovakia in 2003 to serve the rest of his sentence. Legally speaking, he came back a bit stronger than he left, benefiting from the so-called “rule of speciality”, a rule rooted in extradition law and which flows from inter ‑ State respect for each other ’ s sovereignty. Thus, the protection a person normally enjoys in a State ceases only in respect of the ground for extradition. The prosecution on criminal charges and detention of the extradited person on account of facts prior to the extradition are subject to the consent of the extraditing State, u nless the rule of speciality is waived, which is not the case here.

2. Slovakia needed the consent of the Czech Republic to indict and detain the applicant on account of facts prior to and other than the grounds for his extradition. That “rule of speciality” remained applicable between the Czech Republic and Slovakia after the replacement of extradition treaty law by the system under Articles 27 and 28 of Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States of the European Union. With regard to one of the seven murders with which the applicant was charged in Slovakia in 2006, in so far as is relevant here in the light of the rule of speciality, the Slovakian judicial authorities considered it necessary to obtain the prior consent of the Czech Republic to hold the applicant in pre-trial detention in the course of the proceedings.

3. In the proceedings following the issuing of a European arrest warrant the Slovakian authorities obtained the consent of the Czech Republic before February 2007 to proceed on the relevant murder charge. On 2 February 2007, that is, after consent had been given irrevocably, the detention of the applicant on suspicion of murder was ordered. The applicant was present during the habeas corpus proceedings on 2 February 2007, and after some delay so were his lawyers. Before his lawyers arrived, the applicant had claimed that he felt unwell; he was given medical assistance and was taken to hospital. According to the facts in paragraphs 24 and 25, the hearing resumed at 2.45 p.m. after the hospital visit of the applicant, and on the arrival of the lawyers the session was reopened and then adjourned until 3.40 p.m. for the purposes of preparing the defence. The lawyers were given the opportunity to inspect the file for twenty minutes and then to consult with the applicant. Paragraph 80 of the judgment differs somewhat from the facts as stated in paragraphs 24 and 25, suggesting that the total time for the preparation of the defence from the adjournment until 3.40 p.m. was twenty minutes. The time actually taken during the interval for preparation of the defence and consultation of the applicant is not known exactly. But even if it was restricted to twenty minutes as is suggested, that would not necessarily be deficient at this stage. In cases concerning the review of pre ‑ trial detention the preparation of the defence is very often limited. Decisions concerning such detention have to be taken speedily. The time and facilities needed for such proceedings are not comparable with those needed for criminal proceedings concerning the merits of a charge. According to the judgment in Lutsenko v. Ukraine (no. 6492/11, 3 July 2012), referred to by the Court, the essential conditions concerning the review of detention are: compliance with the procedural requirements of domestic law, the reasonableness of the suspicion underpinning the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention. Instead of focusing on these essentials the Court concludes in the present case that the provision made for the applicant ’ s state of health, and the time and facilities for the preparation of his defence, were inadequate. However, the applicant was heard by the domestic court, he had medical assistance when he claimed to need it and he had the assistance of lawyers who had access to the file. All the conditions mentioned in Lutsenko were met; later on this was justifiably considered by the Constitutional Court as appropriate to the circumstances of the case.

4. Perhaps the majority is guided by the wisdom that a reputedly dangerous person is more at risk than others of becoming victim of an unduly restrictive interpretation of his rights. It is indeed important to be aware of such risks. However, I cannot follow the majority in their view that the facts as established in this case, including the domestic rules of criminal procedure, merit the conclusion that the appl icant ’ s rights under Article 5 § 4 of the Convention were violated. It is hard to agree with any of the paragraphs leading to the finding of a violation of Article 5 § 4. The opportunity for a detainee to be heard either in person or through some form of representation features among the fundamental guarantees of procedure applied in matters of deprivation of liberty (see Kampanis v. Greece , 13 July 1995, § 47, Series A no. 318-B). However, the essential distinction between a right to be heard on appeal and not being heard on appeal is missed and therefore no subsequent analysis is carried out in this respect. Furthermore, the inconsistency which the majority observes in paragraph 79 is not properly substantiated, nor is its possible relevance explained, assuming it was rightly found to exist. The fact that paragraph 80 starts with the words “Be that as it may” seems to acknowledge this. Paragraph 81 then omits the explanation given by the Government in their written submissions in relation to all the points mentioned. The Court states that it “would have been advisable that ... the applicant ... be heard orally”. Such advice could have been given by his lawyers and could have been indicated by the defence in due time during the domestic proceedings, in accordance with domestic law. In the presence of the applicant and his lawyers the reason for the detention order of 2 February 2007 was given orally by the court, namely, as mentioned in paragraph 28, “on the ground that he might abscond”. However, in paragraph 82 it is stated in the context of reasoned grounds for detention that “the transcript contained no such reasoning”, as if the defence could not have been aware of the ground that had been indicated to them orally. Furthermore, it is hard to see on what grounds the Court considers itself to be in a position to state that it would be “natural that the applicant would await ... the written version of the detention order, as is the normal course of action”. There is no mention in the facts part of the case of any such practice forming part of established standards in Slovakia. Paragraph 83 relies heavily on the supposition that the domestic courts should have replied to the “crucial argument concerning the lawfulness of his detention under the speciality rule”. It is rather amazing that the Court does not indicate why that should have been done in these proceedings; likewise, no consideration is given here to the Constitutional Court ’ s reasoning in this respect (see, for a summary in the facts part, paragraphs 54 to 58, more extensively presented in the Government ’ s submissions of 21 September 2012, paragraph 28).

5. The reasoning of the majority of the Court in which the elements are presented which, in combination, lead the Court to find a violation of Article 5 § 4 is, in my view, not convincing in view of the above. The correct assessment of what the applicant could and should have done in order to be heard in the appeal proceedings is not explained; the domestic procedural significance of a written pledge is not set in a comprehensible context, although the file contains the necessary elements. But think about it. In a situation where the applicant was charged with several murders and had absconded earlier, a written pledge that he would behave properly if set at liberty – a pledge which was not made in the proper manner in a request to be heard on a matter in appeal proceedings, as could have been done – is given considerable procedural significance by our Court, a significance which the domestic judicial authorities supposedly denied without justification. The judgment again fails to clearly reflect domestic law as it is presented in the submissions of the Government; had it done so, it would have been harder to find a violation. I am inclined to think that the assessment of the review under Article 5 § 4 is hazardous because the Court assumes a level of insight into domestic law and practice which could only follow a close examination. Interpreting domestic law in relation to practice, estimating legitimate expectations and understanding procedural tactics in their true significance is not an exercise that is easy to perform at a distance. Is that the task of our Court? I would not argue that a violation could not be found in this case. But the application and its reasoning, and the facts as stated by the Court, do not convince me at all. Nor do I feel that the material would justify further examination from the standpoint of serious human rights issues. The fact that the finding of a violation under Article 5 § 4 is considered to constitute sufficient compensation for the applicant seems to reflect the relative importance which the Court itself attaches to it in the specific circumstances of the case. That ultimately makes it less difficult to live with.

6. There is another matter to address. After the dismay the Court expressed about the domestic courts ’ failure to respond to the applicant ’ s “crucial argument concerning the lawfulness of his detention under the speciality rule”, it would have been interesting to find an explanation for such a critical observation by the Court. The complaint under Article 5 § 1 offered an even better opportunity to do so. Surprisingly, in view of the finding of a violation under Article 5 § 4, the Court declares the complaint concerning Article 5 § 1 admissible but then finds no reason to investigate this complaint. Here, I think the Court is too hesitant to assume its guiding role.

7. The correct interpretation of Articles 27 and 28 of Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States of the European Union is the exclusive domain of the Court of Justice of the European Union. In a number of judgments (C-168/13, PPU, Judgment, 30/05/2013 ( F ); C-396/11, Judgment, 29/01/2013 ( Radu ); C-192/12 PPU, Judgment, 28/06/2012 ( West )), the Court of Justice of the European Union reiterated that the purpose of the Framework Decision, as is apparent in particular from Article 1(1) and (2) and recitals 5 and 7 of the preamble, is to replace the multilateral system of extradition between Member States with a system of surrender between judicial authorities of convicted or suspected persons for the purpose of enforcing judgments or of conducting prosecutions, that system of surrender being based on the principle of mutual recognition (see Case C ‑ 396/11 Radu [2013] ECR I ‑ 0000, paragraph 33, and Case C ‑ 399/11 Melloni [2013] ECR I ‑ 0000, paragraph 36). The Framework Decision thus seeks, by the establishment of a new simplified and more effective system for the surrender of persons convicted or suspected of having infringed criminal law, to facilitate and accelerate judicial cooperation with a view to contributing to the objective set for the European Union to become an area of freedom, security and justice, founded on the high level of confidence which should exist between the Member States (see Radu , paragraph 34, and Melloni , paragraph 37).

8. The applicant had not waived his rights under the speciality rule and neither Slovakia nor the Czech Republic supposed that the applicant had done so. In paragraph 38 of the Radu judgment, cited above, it is stated by the Court of Justice of the European Union that the fact that a European arrest warrant has been issued for the purposes of conducting a criminal prosecution, without the requested person having been heard by the issuing judicial authorities, does not feature among the grounds for non-execution of such a warrant as provided for by the provisions of Framework Decision 2002/584.

9. It can furthermore be observed that the applicant was represented by a lawyer in the Czech Republic during the proceedings following the issuing of the EAW. The applicant was subsequently heard by the domestic court in Slovakia in the presence of his lawyers concerning the detention order of 2 February 2007, and arguments relating to the rule of speciality were presented there by the defence. I see no convincing reason, from the perspective of Article 5 § 1 of the Convention, which is the vital concern of our Court here, why these arguments would be considered valid and in need of a more detailed answer beyond considering that after consent had been given the rule of speciality was not relevant anymore for the subsequent lawfulness of the applicant ’ s detention. Therefore, I believe that the complaint concerning Article 5 § 1, as this complaint is understood by the Court, should have been declared manifestly ill-founded.