CONCURRING OPINION OF JUDGE WILHELMINA THOMASSEN

I fully agree with the judgment in this case. However, I find it appropriate to make some additional observations with regard to the lack of domestic remedies against the detention order which was imposed on the applicant.

Article 294 § 3 of the Code of Criminal Procedure provided that no remedy lay against the detention order which had been imposed on the applicant. Article 223 § 3 however provided the applicant with an appeal against the refusal to release him and with an appeal on points of law to the Supreme Court ( Hoge Raad ) against any such refusal given on appeal. The applicant in fact made use of his right to appeal against the refusal to release him. This appeal was rejected by the very judges of the Court of Appeal who had given the detention order. Subsequently the applicant lodged an appeal on points of law with the Supreme Court, but withdrew it after he was released and before the Supreme Court could give its judgment.

Initially the Government argued that the applicant, having withdrawn his appeal to the Supreme Court, had failed to exhaust domestic remedies. They later withdrew this preliminary objection, having come round to thinking that the Supreme Court would have declared the appeal on points of law inadmissible because the applicant would no longer have been in detention by the time it could have considered his case (Government ' s letter to the Court of 2 March 2006).

Apparently the Government took the view that it was beyond any doubt that the Supreme Court would have dismissed the appeal on points of law on the ground of being devoid of interest because of the applicants ' release [1] .

If this presumption is correct, then the protection at the domestic level has been deficient. It would mean that the lawfulness of the applicants ' detention could not be challenged before any other court than the Court of Appeal which itself had imposed the detention order (if at all). It would mean that the Supreme Court would not hav e been in a position to rule on points of law either as to the lawfulness of the detention or as to its compatibility with Article 10, for the sole reason that the applicant had been released in the meantime.

Since fundamental rights require effective protection at the domestic level more than at any other , this case raises the question what possible solutions for the future can be found there. The E uropean C ourt of H uman R ights should only intervene in the national system as a subsidiary means of protection. Moreover, an effective protection at the domestic level is necessary in view of the Court ' s ever-increasing workload ( see also Resolution Res(2004)3 on judgments revealing an underlying systemic problem, adopted by the Committee of Ministers of the Council of Europe on 12 May 2004 ).

In my view one such possible solution could be to allow an appeal on points of law against a detention order and have the Supreme Court examine complaints regarding the lawfulness of someone ' s detention even after his or her release, either by way of a further review by the Supreme Court of its tasks with regard to the Convention or perhaps by the introduction of a statutory provision which explicitly sets out the Supreme Court ' s tasks in this respect.

In this context it should be noted that the applicants ' detention dates from 22 September 2000, which is more than seven years before the Court decided on the well- foundedness of his complaints. Had the Supreme Court examined the arguable claims under Art icles 5 and 10 of the Convention, the applicant could have had a judgment on points of law most probably in 2000 or at any rate no later than 2001. Moreover, such a judgment could have made a contribution to an informed national debate at a time when this issue was a live topic .

If a national court had been able to conclude that the applicant ' s detention had violated both Art icle 5 and Art icle 10 of the Convention , the applicant would have had a remedy within a reasonable time and any application to the Court could have been declared inadmissible for non-e xhaustion of domestic remedies.

[1] In this respect the Supreme Court’s judgmen t of 31 May 2005, LJN AS 2748, Nederlandse Jurisprudentie 2005, 531, is interesting. The appeal on points of law in that case, lodged by a woman who had been detained because she had not wanted to give evidence against her partner, was declared inadmissible because she had been released by the time the Supreme Court got round to deciding her appeal. However, at the same time and in an obiter dictum the Supreme Court gave its opinion on the compatibility of the applicants’ detention with Article 8 in conjunction with Article 14 of the Convention.