DISSENTING OPINION OF JUDGE BORREGO BORREGO

(Translation)

The applicant had been detained on remand for sixteen months on suspicion of murder. At the hearing in the trial court, exercising his right to address the court last, he concluded his submissions by requesting, inter alia , to be released. On the same day the Košice Regional Court gave judgment, sentencing the applicant to twelve and a half years’ imprisonment.

The majority of the Chamber considered that “the Košice Regional Court did not, and this was not contested between the parties, rule on the request for release which the applicant had made prior to the delivery of the judgment”, and that “[i]n the absence of any decision on that request, the applicant continued to be held in detention on remand, technically, by virtue of a decision which had been taken on a different occasion prior to the delivery of the Regional Court’s judgment”. The majority concluded “in these circumstances” (see paragraphs 21 and 22 of the judgment) that there had been a violation of Article 5 § 4 of the Convention.

I regret that I am unable to agree with the reasoning of the majority of the Chamber.

In my opinion, the judgment in which the applicant was sentenced to twelve and a half years’ imprisonment, delivered on the same day as the hearing, was an appropriate response to the applicant’s request for release, which he made, among others, at the end of his submissions in accordance with his right to address the court last.

In contrast to substantive human rights such as the right to liberty, procedure and related technical matters have the character of a tool. To hold in the instant case that the Regional Court’s judgment was not a technical response to the applicant’s request is, in my opinion, to overlook the fact that a tool comes into being for a particular purpose and cannot become the purpose itself. Detaching the procedure and related technical matters from legal reality is contrary to the nature of a procedural tool and inevitably complicates the courts’ everyday tasks for no good reason.

That is why I consider that there was no violation of Article 5 § 4 of the Convention in the instant case.