JOINT DISSENTING OPINION OF JUDGE S TSATSA-NIKOLOVSKA AND BORREGO BORREGO

Much to our regret, we do not share the majority ’ s decision with regard to Article 5 § 1 of the Convention.

Article 5 of the Convention is of paramount importance. One of the most important constituent parts of the Court ’ s case-law is the “repeated emphasis on the lawfulness of the detention, procedurally and substantively, requiring scrupulous adherence to the rule of law” ( McKay v. the United Kingdom [GC], no. 543/03 , 3 October 2006).

If the Düsseldorf Court of Appeal (14 October 2002) found that “the detention order issued by the District Court on 25 July 2002 did not comply with the legal requirements” (§ 24), it seems evident that the fact that the applicant was deprived of his liberty constitutes a violation of Article 5 § 1 of the Convention.

Even accepting the distinction made in paragraph 63 between void detention orders and defective detention orders – such as the one in the instant case, which therefore remained a valid basis for detention until replaced – there is still evidence of a violation of Article 5, since “the importance of promptness or speediness of the requisite judicial controls” constitutes one of its applicable principles.

The replacement of the defective detention order in this case should have been faster. A lapse of fifteen days cannot be considered as complying with Article 5, as stated in paragraph 64. Especially if we take into consideration that in Gębura v. Poland ( no. 63131/00, § 34, 6 March 2007 ) a delay of over forty-eight hours in the applicant ’ s release from prison was considered a violation of Article 5 § 1of the Convention.

For the reasons set out above, we cannot support the conclusion that there has been no violation of Article 5 § 1 of the Convention.