PARTLY DISSENTING OPINION OF JUDGE REPIK

(Translation)

I voted with the majority to reject the preliminary objection that domestic remedies were not exhausted and to find a violation of Article 5 para . 3 of the Convention (art. 5-3), but on the latter point for reasons which were different in part.  On the other hand, I disagree with the majority ’ s finding that there was no violation of Article 5 para . 1 of the Convention (art. 5-1).

The reasons for my partly separate and partly diss enting opinion are as follows.

I. Genera l observations

According to the majority of the Court, the whole period of the applicant ’ s detention fell within the ambit of Article 5 para . 1 (c) of the Convention (art. 5-1-c), and accordingly also within that of Article 5 para . 3 (art. 5-3) (see paragraphs 52 and 74 of the judgment), with the exception of the short period from 21 to 27 March 1994, which had no connection at all with the Spanish proceedings on the rape charges (see paragraph 75 of the judgment).

The Court based this amalgamation of the two separate grounds for the applicant ’ s detention on its power to consider the legal basis of detention "autonomously" (see paragraph 52 of the judgment) having regard to the fact that "the investigation into the rape charges provided at all times, in whole or in part, justification for the applicant ’ s ongoing detention" and that "even during the period going from 6 March 1992 to 25 August 1993, where technically the applicant was being detained exclusively on the strength of orders made in the extradition proceedings, the only reason for extending his detention was that the investigation into the rape allegations was still incomplete" (see paragraph 52 of the judgment).

I regret that I am unable to follow the Court in this approach; to find that detention with a view to extradition under the Spanish legal rules governing detention fell within the ambit of Article 5 para . 1 (c) of the Convention (art. 5-1-c) seems to me to be unfounded.  It is the statutory conditions for detention, both substantive and procedural, as laid down by domestic legislation, that should be taken into account in order to decide what was lawful under the Convention, not the reasons given by the domestic courts in their decisions to justify extending detention with a view to extradition. The Court ’ s task is precisely to determine whether the latter reasons suggest that detention with a view to extradition pursued an aim other than that for which it was prescribed by law (see the Quinn v. France judgment of 22 March 1995, Series A no. 311, p. 19, para . 47).

The applicant ’ s detention during the period under consideration was based - in part concurrently and in part consecutively - on two different legal grounds and two different types of court order, between which the Convention also draws a clear distinction.  Detention on remand (Article 503 of the Spanish Code of Criminal Procedure) - apart from the other specific substantive conditions relating thereto -  may be ordered only in the context of domestic criminal proceedings. On the other hand, detention with a view to extradition may be ordered only in the context of extradition proceedings.  These requirements are also laid down by Article 5 para . 1 (c) of the Convention (art. 5-1-c), as regards the former, and Article 5 para . 1 (f) (art. 5-1-f) as regards the latter.  In addition, different domestic courts have jurisdiction to determine all questions concerning these two different grounds of detention.  The fact that the two sets of proceedings were being conducted concurrently does not make it right for the Court to treat these two grounds of detention as identical for the purposes of the Convention and does not dispense it from examining them separately, which does not mean that when assessing the length of detention it cannot take into account the total period of imprisonment (see, for example, mutatis mutandis, the Yagci and Sargin v. Turkey judgment of 8 June 1995, Series A no. 319-A, p. 18, para . 49).

The majority ’ s approach leads to the following unacceptable consequence: if the whole period of detention from 5 March 1990 to 21 March 1994 was based solely on what was needed in connection with the domestic proceedings on the rape charge and thus fell within the ambit of Article 5 para . 1 (c) of the Convention (art. 5-1-c), how is it possible to justify the fact that this detention exceeded the maximum statutory limit under Spanish law, namely four years (Article 504 of the Spanish Code of Criminal Procedure)?  From 6 March 1994 onwards the applicant ’ s detention should be considered unlawful.

It is therefore necessary to consider the two g rounds of detention separately.

II. Detention on remand

I agree with the majority that this detention was lawful and that, throughout its length, there were plausible reasons to suspect that the applicant had committed a serious offence and that there was an obvious risk of his absconding (see paragraphs 78 and 79 of the judgment).

Taking a different approach from the majority, I consider that the period of detention which fell within the ambit of Article 5 para . 3 (art. 5-3) ran only from 5 March 1990 to 6 March 1992 and from 25 August 1993 to 21 March 1994, that is to say a total of two years and nearly seven months.  However, although the period in question was considerably shorter than the period considered by the majority, their conclusions on the question whether the detention exceeded a reasonable time remain valid, even for this shorter period.  There were very lengthy periods of inactivity on the part of the Puerto de la Cruz investigating judge not only during the applicant ’ s detention on remand but also during the period when he was technically no longer being held on remand (6 March 1992 - 25 August 1993), and the delays during this last period directly influenced the fact that his detention continued after 25 August 1993.

III. Detent ion with a view to extradition

For detention falling within the ambit of two (or more) sub-paragraphs of Article 5 para . 1 (art. 5-1) to be justified, it is sufficient for it to be justified under only one of the provisions concerned.  Having regard to the above conclusions concerning detention on remand ordered in connection with the domestic proceedings on the rape charge, the only period which has still to be considered under Article 5 para . 1 (f) (art. 5-1-f) is that part of the applicant ’ s detention ordered solely with a view to extradition, that is the period from 6 March 1992 to 25 August 1993, since the period from 21 to 27 March 1994 was manifestly justified by the need to order and implement measures to hand the applicant over to the British authorities.

According to the majority, by holding the applicant in detention with a view to extradition for the sole reason that the domestic criminal proceedings on the rape charge were still pending, the Spanish judicial authorities acted within the limits of the powers conferred on them under domestic law to defer extradition (see paragraph 75 of the judgment).  I consider that there is a stage missing from that reasoning.  Under the relevant provision of the Extradition Act (section 19 (2)) and the similar provision of Article 18 of the Extradition Treaty between Spain and the United Kingdom (see paragraph 41 of the judgment), delivery of the person whose extradition is sought into the charge of the requesting State may be deferred until he has discharged his criminal responsibilities if criminal proceedings against him are pending in the State from which extradition is sought.  But these provisions say nothing to the effect that the person whose extradition is sought must be detained with a view to extradition or held at the disposal of the requested State in some other manner, in particular in detention on remand in connection with the domestic criminal proceedings [4] . Consequently, these provisions cannot constitute the legal basis for detention with a view to extradition, which is based on other provisions.

For more than seventeen months the applicant was detained only with a view to extradition.  However, the extradition proceedings ended for all practical purposes with the Cabinet ’ s decision of 28 May 1991. All that remained to be done was to enforce extradition, which took only a few days (21-27 March 1994).  The Audiencia Nacional ’ s decision of 17 March 1992 to extend detention with a view to extradition came after the Puerto de la Cruz investigating judge decided, rightly or wrongly, that the applicant should be released from detention on remand (see paragraphs 18 and 19 of the judgment).  There can be no doubt that detention with a view to extradition was used for the purposes of the domestic criminal proceedings on the rape charge.

Article 5 para . 1 (f) of the Convention (art. 5-1-f) provides for a review of the lawfulness of the detention of a person against whom action with a view to his extradition "is being taken".  The wording in both French and English means that only where extradition proceedings are in progress is deprivation of liberty justified under that provision (art. 5-1-f).  It follows that if the proceedings are not being conducted by the authorities with the necessary diligence, or if continued detention results from the pursuit of aims other than those for which it was prescribed by law, the detention ceases to be justified under Article 5 para . 1 (f) (art. 5-1-f) (see the above-mentioned Quinn judgment, p. 19, paras . 47 and 48; see also application no. 7317/75, decision of 6 October 1976 in the Lynas v. Switzerland case, Decisions and Reports 6, pp. 141 et seq.). Whatever approach one chooses - either the excessive length of detention not justified by extradition proceedings in progress or the use of detention with a view to extradition for the purposes of the domestic criminal proceedings - the detention in question was not justified under Article 5 para . 1 (f) of the Convention (art. 5-1-f) and there has accordingly also been a violation of Article 5 para . 1 (art. 5-1).

[1] The case is numbered 84/1995/590/676.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[2] Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol (P9).  They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[3] For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1996-VI), but a copy of the Commission's report is obtainable from the registry.

[4] It is logical that if the person concerned is detained only for the purposes of the domestic criminal proceedings, the means that must be employed to that end are those which are available to the State in such proceedings.  If means which have no place in such proceedings are used, and if the prisoner is not detained under the responsibility of the court conducting the proceedings, there is nothing to encourage that court to proceed with the necessary diligence, notwithstanding the fact that the prisoner is deprived of the safeguards laid down by the legislation of most countries in respect of detention on remand, but not of detention with a view to extradition (for example, statutory maximum limits of detention, obligation to consider proprio motu , at various intervals, whether the reasons for detention are still valid, deduction of detention on remand from the sentence imposed in the domestic criminal proceedings, etc.).