PARTLY DISSENTING OPINION OF JUDGE MARUSTE

To my regret I disagree with my colleagues in the finding of no violation of Article 5 § 1 of the Convention.

My understanding is that the basic requirements for a deprivation of liberty and for a release from detention must be symmetrical. This means that when someone is taken into custody, there must first exist a law prescribing detention and secondly an independent judicial procedure and decision – verifying the correct application of that law and the justifiability of detention in the given circumstances – on the basis of which a deprivation of liberty should either be permitted or refused. A deprivation of liberty cannot be considered legal if it is effected without a judicial procedure and decision. I am also of the opinion that exactly the same applies in respect of the question whether to release a person or whether to prolong his detention when the period of time for which the detention was permitted has expired (in this case, this means the period during which the TBS order was valid).

I am of the opinion that in the present case there was a law, and in this I am in agreement with my colleagues. I cannot find, however, that there was a “procedure prescribed by law”. Or, more precisely, the procedure exists, but it was not followed. And it was not followed for reasons which were wholly insufficient. It is this serious procedural failure (the lack of a timely decision) that constitutes a violation of Article 5 § 1. It is clear from the facts of the case, and this was both recognised by the domestic courts and not disputed between the parties, that there was a period of at least seventeen days during which the further detention was not based on a judicial decision.

In the case of Witold Litwa v. Poland (no. 26629/95, § 72, to be reported in ECHR 2000-III) it was stressed by the Court, “that under Article 5 of the Convention any deprivation of liberty must be “lawful”, which includes a requirement that it must be effected “in accordance with a procedure prescribed by law”. On this point, the Convention essentially refers to national law and lays down an obligation to comply with its substantive and procedural provisions”.

I should also like to point out that to my mind the relevant Netherlands law (article 509q CCP) is a blanket (penal) provision which in principle provides for detention without a judicial decision for an unlimited period without any consequences for those responsible. Such a regulation can hardly be regarded as being in conformity with the requirements of the Convention. I also do not share the emphasis on the general dangerousness and possibly “serious aggressiveness towards others” (see §§ 11 and 13) as a justified reason for further detention, since a detention on that basis is similar to detention of a preventative nature, which has been criticised by the Court on several occasions.