DISSENTING OPINION OF JUDGE BONELLO

1 . I felt compelled to vote for a violation of Articles 5 § 3 and 5 § 4 as I believe the facts of the case fully justified this vote. I fight back a chilling doubt that this judgment has inflicted a blow to the protection of individuals against arbitrary arrest and detention, far more critical than a superficial reading might suggest.

Violation of Article 5 § 3 – The fundamental right to take it easy

2 . This Article embraces two separate guarantees against arbitrary deprivation of liberty by requiring that any person arrested on suspicion of having committed a criminal offence shall be brought promptly before a judicial authority. Its second limb covers the right of a person detained to be tried within a reasonable time or released pending trial. To satisfy the precepts of Article 5 § 3, procedural and substantive requirements have to be observed. Procedurally, the judicial authority before whom the arrested person is brought must “hear” the detainee personally or through his lawyer. The ‘ substantive ’ duty places on the judicial authority the obligation of reviewing carefully, by reference to legal criteria, all the reasons militating for and against continued detention.

3 . The initial “prompt and automatic” review by a judicial authority (in Malta, the Court of Magistrates) must be able to examine and determine (a) whether there exists a reasonable suspicion that the person detained has committed the crime charged, and (b) all other ‘ lawfulness ’ issues relevant to that arrest and detention. The basic aim pursued is the immediate release of the person arrested should either of these tests fail.

4 . The present complaint refers to the hearing of 10 September 2005, and, thereafter, until 29 September. The period complained of lasted until 29 September as the inaction in dealing with the control of lawfulness of the applicant ’ s detention after 29 September was, as to quality, remedied by the judgment of the Constitutional Court delivered on 14 February 2006. That judgment, however, gave no remedy for the failure of the control of lawfulness from 10 to 29 September as to its quality. There is no question that the Government satisfied their obligation t o bring the arrested person promptly before the Court of Magistrates – and the applicant does not complain about this. He complains about the “quality” of the review that the Court of Magistrates had failed to provide, in particular the refusal by that court to deal with his plea of lack of jurisdiction from 10 to 29 September 2005.

5 . Following the judgments of this Court in Aquilina and TW v. Malta [1] , Parliament had amended the Maltese Criminal Code to enable Magistrates charged with the “prompt and automatic review” to examine all the grounds of “lawfulness” of a deprivation of liberty, and to release an accused where no reasons against release are established. What remains to be seen is if in the present case the Court of Magistrates, notwithstanding this amendment, in fact exercised the new powers conferred on it by law to comply with Article 5 § 3.

6 . The majority accepts that the applicant raised the plea of lack of jurisdiction immediately on being brought before the Court of Magistrates [2] . He had already spent nine months detained in legal limbo in Spain at the request of the Maltese authorities, and raised this fundamental plea of “lawfulness” of his detention at the very first hearing in Malta, on 10 September 2005. A more radical challenge to the lawfulness of his detention in Malta would be difficult to conceive since jurisdiction (or lack of it) goes to the very essence of the legitimacy of arrest and detention.

7 . Postponing any examination and determination of this core issue to some indeterminate later stage, as the Court of Magistrates did, amounted to a dereliction of a seminal duty expressly mandated by Article 5 § 3 of the Convention. The Court of Magistrates, domestic watchdog over Article 5 § 3 rights, passed the buck to the trial court to decide the issue of jurisdiction, months, usually years, later. Personally I have clear views about Malta ’ s ample jurisdiction to try the applicant, but surely that is not what is at stake. What concerns me is that this eminently overriding issue of lawfulness (jurisdiction) was placed on the back burner and it eventually took over five months to be examined at all.

8 . This Court had, so far (in Article 5 scenarios different from the present one), showcased exemplary sensitivity where unlawful deprivation of liberty was alleged and has held that even a few hours detention without adequate legal basis attracts censure as a breach of the preeminent right to enjoy liberty [3] . This was a Court I would not feel shy to identify with. The present judgment probably records the very first time in the history of the ECHR that five months ’ lingering over a plea of unlawfulness of detention receives the green light from the Court. Article 5 § 3 has been devoutly emptied of substance. Its programmatic purpose has been perverted, and with some flair too.

9 . The Court justified this by having recourse to what in my view only amounts to a contrived legal fiction. The Court accepted that a plea of lack of jurisdiction “is not a collateral issue since it forms the basis of any criminal proceedings” [4] . However, in view of some perceived “complexity” of the matter, the Court found that it was reasonable for the domestic courts to postpone the question of jurisdiction to some later hearing or stage of the proceedings.

10 . Complexity? What complexity? The Go vernment, which in Strasbourg are now reaping handsome returns from the so-called “complexity” of the jurisdiction plea, in Malta had (rightly) argued exactly the opposite: that it was blatantly manifest from express provisions of the Dangerous Drugs Ordinance and the Criminal Code, that the plea of jurisdiction was unfounded, and glaringly so. The case-law of the domestic court had moreover just determined the very same issue of jurisdiction in similar cases [5] – there was simply nothing further to argue.

11 . In fact, the Court of Magistrates chose to disregard the plea of jurisdiction, not because of any alleged complexity (that only surfaces now in Strasbourg), but because, as it wrongly held later ( 29 September), it had no competence to decide that plea and that it was for the Criminal Court, during the trial proper, to deal with that plea, and not the Court of Magistrates. Never did the Court of Magistrates invoke “complexity” as the reason for its refusal to consider the plea of jurisdiction. It had to be the ECHR that, for the first time, stepped in to throw a totally inexistent ‘ complexity ’ into the equation.

12 . The plea of jurisdiction could have been, and eventually was, determined in the briefest of times. Strasbourg has now discovered the mythical “complexity” of this plea – the only escape hatch left to justify five months ’ dithering in a decision which, to mean anything at all, the Convention requires should be promptly [6] taken. When toying with a human being ’ s personal liberty, over five months ’ delay would have been monstrous even had the issue been genuinely bedevilled by diabolical complexity. How to qualify it when – as in the present case - it was simplicity personified? I would go one step further. In my view, in matters of personal freedom, the more complex the issue to be resolved, the more compelling the duty placed on the judicial authority to take it in hand right away.

13 . The Court of Magistrates, once prodded by the Constitutional Court , could, and did, dispose of the plea of jurisdiction in ten days flat. So how can Strasbourg ever justify a failure to control the lawfulness of detention for five months and ten days on the pretext of ‘ complexity ’ , when that plea could have been, and was, actually determined in ten days? Marketplace wisdom refers to that as the proof of the pudding.

14 . This judgment gives carte blanche, in a matter in which urgency is of the essence, for courts to fiddle around only with what seems easy to resolve, and put off indefinitely any control of lawfulness that appears to them less simple to crack. If the supervisory court brands the legality issue as “complex”, the applicant has plenty of time to meditate about his tough luck behind bars. This judgment says explicitly that Article 5 § 3 henceforth means that the review court no longer has a duty to enquire fully into the lawfulness of the detention; it only has the duty to investigate those issues of lawfulness easily resolvable. All the others can wait. The very raison d ’ être of Article 5 § 3, which I misguidedly believed entrenched the fundamental right of a detainee to have the lawfulness of his deprivation of liberty determined “promptly and automatically”, has been well and truly sacrificed. Only ‘ easy ’ issues have to bother the review court. The Aquilina, T.W. , Sabuer ben Ali and Kadem blooms now wither under Strasbourg frostbite. Control of lawfulness of detention cannot be allowed to interfere with the more fundamental right of the supervising judge to take it easy.

Art icle 5 § 4 – The right of asking for two and settling for one

15 . The purpose of this guarantee is to assure, to persons who are detained, the right to a judicial review of the continued lawfulness of that detention, and this at any stage after their first “presentation” before a judicial authority.

16 . A speedy review of that continued lawfulness, leading, where appropriate, to release, underscores the essence of this safeguard. This Article not only guarantees the right to take proceedings to challenge the lawfulness of continued detention, but equally the right to obtain “a speedy judicial decision” concerning the lawfulness of that detention [7]

17 . In the present case, the applicant had formally pleaded the lack of jurisdiction of the Maltese courts; this, if correct, would have negated the principal basis of the lawfulness of his continued detention. He had been imprisoned in Spain , at the request of the Maltese authorities, since 30 November 2004. On 14 February 2006, the Constitutional Court failed to determine his plea of jurisdiction and remitted the issue to the Court of Magistrates that should have determined it in the first place. That court finally disposed of that plea over fifteen months after the applicant ’ s arrest, and over five months after the jurisdiction plea had been formally raised immediately on his extradition to Malta .

18 . The majority held that the applicant had lost victim status the moment the Constitutional Court found that there had been a violation of Article 5 § 4 since the Court of Magistrates had refused to determine the plea of jurisdiction and had granted a remedy for that violation. [8] The ten days which the Magistrates ’ C ourt then took to determine the issue after it was referred back to it by the Constitutional Court were not, in their view, in violation of the ‘ speediness ’ requirement. Even if with the scantiest passion, I could bring myself to endorse that.

19 . But, with the profoundest respect due to my colleagues, this analysis seems to me to be compellingly wrong. The applicant had complained to the Constitutional Court that Articles 5 §§ 3 and 4, had been breached when the committal court, twice requested, had refused to assess the lawfulness of his arrest and detention on the basis of lack of jurisdiction. In Strasbourg he also complained that this issue had only been determined five months and ten days after he had raised it. The Constitutional Court decided (in favour of the applicant), only on the (poor) quality of the review – and not on its speediness. It only examined, and censured, the failure of the Court of Magistrates to determine the plea of lack of jurisdiction – but did not consider at all, let alone give any remedy for, the lack of promptness in determining that issue. No remedy was ever given for the inordinate length of time the applicant ’ s plea to be released had taken to reach determination – from 10 September 2005 to 23 February 2006. The constitutional procedures lasted from 3 October 2005 to 14 February 2006 and the jurisdiction plea was only disposed of on 23 February 2006. It is this delay that was the subject matter of the complaint before this Court.

20 . In brief. The ECHR had before it two separate complaints. Firstly, that the referral court had exercised badly its function of supervision by refusing to consider the plea of jurisdiction – the quality of the review. Secondly, that the process to ensure this supervision had taken on excessively long time : the delay in the review. The ECHR could have examined and remedied this delay both under Article 5 § 3 and under Article 5 § 4. In fact it remedied it under neither. This somnolent handling of the control of lawfulness of detention has passed through Strasbourg uncensu red under both Articles. Nowhere in the Strasbourg judgment or in the domestic ones, do I find a hint that five months and ten days ’ delay to control the lawfulness of detenti on is right, neutral or wrong.

21 . It is inconceivable to me why the Court should have found the applicant no longer to be a victim because, of two separate violations, one had been remedied. And the other? Do five months and ten days ’ delay to determine a plea of release from unlawful detention, with no remedy at all given against that delay, either in the domestic forum and in the Strasbourg one, raise no eyebrows at all?

22 . A remedy for delay could only have been granted by Strasbourg . This Court has already held that the cumbersome proceedings before the Constitutional Court would not have ensured a speedy review of lawfulness of detention. [9] This means both that no effective remedy for that delay was available under the domestic system, and that the applicant did not have to exhaust before the Constitutional Court a complaint about the slowness of the review (caused by long proceedings before the Constitutional Court). [10] As no remedy for this delay is available in the domestic system, that left the applicant only able to search for a remedy for the breach of the speediness requirement, in the Strasbourg Court . This Court, for unexplained reasons, no longer considers him a victim of a violation lasting over five months, as the domestic courts had provided a remedy for a totally different one.

23 . The applicant could not obtain any remedy for delay from the Maltese courts. The present judgment makes sure he does not obtain any from Strasbourg either.