SEPARATE OPINION OF JUDGE MORENILLA

(Translation)

1.  Although I can concur in the majority's finding that there has been no violation of Article 5 para . 3 (art. 5-3) of the Convention, I cannot agree with its dismissal of the Government's preliminary objection.

2.  In my opinion, the applicant's flight from Spain after his complaint, based on Article 5 para . 3 (art. 5-3) of the Convention, about the length of his pre-trial detention had been declared admissible by the Commission, and his failure to appear for trial by the Spanish courts for the serious offences of which he was accused were facts such as to alter substantially his procedural position before the Convention institutions.  These new facts, which, according to the majority (see paragraph 53 of the judgment), were admittedly "wrongful" but "did not render illegitimate his interest in obtaining from the Convention institutions a ruling on the violation he is alleging" deprived his action of an essential procedural condition for validly reaching that decision, which is apparent from the same Article 5 para . 3 (art. 5-3) in fine.  The failure to satisfy that condition required his application to be found inadmissible, even of the Court's own motion, as being incompatible with the Convention (Ar ticles 29 and 27 para . 2) (art. 29, art. 27-2).

3.  I think that the Spanish Government, in raising this preliminary objection, are not, at this stage of the proceedings, disputing the applicant's claim or interest based on Article 5 para . 3 (art. 5-3) of the Convention (which is a question of substance) but the procedural legitimacy of asking the Strasbourg institutions to rule on that interest.  It is for that reason that they sought to have the case struck out of the list without any ruling on the merits, because they considered that the applicant's conduct towards the Spanish courts prevented him from taking proceedings before the Convention institutions.  And the judgment affords no answer to that question raised by the Government.

4.  Article 5 para . 3 (art. 5-3) of the Convention, which the applicant claimed had been violated by the Spanish State , provides for "guarantees to appear for trial".  A logical, purposive interpretation of that Article (art. 5) in the context of the Convention - as required by Article 31 para . 1 of the Vienna Convention on the Law of Treaties, by which the Court has been guided since its judgment in the Golder v. the United Kingdom case of 21 February 1975 (Series A no. 18, p. 13, paras . 29-30) - calls for compliance with those conditions as being essential to the admissibility of the application, failing which it will be incompatible with that provision (art. 5) of the Convention. The presence of the applicant, an accused person provisionally at liberty, at the trial thus becomes a prerequisite of the decision ( presupuesto procesal in Spanish law, Sachurteilsvoraussetzung in German law, see Rosemberg -Schwab and Gottwald , Zivilprozeßrecht , Munich, 1993, pp. 535-41) when he alleges a violation of Article 5 para . 3 (art. 5-3).  The unjustified failure to satisfy the conditions of provisional release therefore entailed loss of standing to take proceedings before the Convention institutions and inadmissibility of the application as being incompatible with the Convention under Articles 29 and 27 para . 2 (art. 29, art. 27-2).

5.  The circumstances of this case also deserve to be emphasised, in order to define the scope of this opinion: (a) the applicant absconded after the Commission had declared that the complaint based on the unreasonable length of the pre-trial detention was admissible; (b) when provisionally released at his own request, the applicant promised the Spanish court that he would comply with the conditions imposed to ensure that he appeared for trial, and his wife paid the security; his lawyer had also stated that he had "no intention of evading Spanish justice and would appear for trial" (see paragraph 30 of the judgment); (c) the applicant did not give any coherent explanation for his absence (see paragraphs 25, 30 and 64); furthermore, he insisted during the proceedings that he had "the greatest respect, the greatest consideration, for Spanish justice" (verbatim record of the hearing, Cour /Misc (95) 40, p. 16 in fine; memorial, Cour (94) 300, para . 16), although at the end of the trial he indicated his anxieties about the length of the proceedings and the outcome of the case; (d) in its decision on the admissibility of Mr van der Tang's application (The law, paragraph 2) the Commission had declared the complaint based on Article 6 para . 1 (art. 6-1) of the Convention inadmissible, taking the view that "the length of the proceedings in the present case [was] mainly to be attributed to its complexity".

6.  This new ground for the inadmissibility of an application already accepted and declared admissible by the Commission makes it unnecessary to consider the question of the application to this case of the doctrine borrowed from equity and relied on by the Spanish Government ("a man must come into a court of equity with clean hands"), which is moreover a very controversial one in international law (Jean J.A. Salmon, "Des mains propres comme condition de recevabilité des réclamations internationales ", Annuaire français de droit international, vol. X, 1964, pp. 225 et seq .; C. Rousseau, Droit international public, Sirey, Paris, 1983, vol. V, pp. 171-72; M. Diez de Velasco , Instituciones de Derecho Internacional Público , Tecnos, Madrid, 1983, vol. I, pp. 395-96).  Furthermore, human rights proceedings do not belong to the class of international disputes concerning the diplomatic protection of nationals prejudiced by acts contrary to international law which are ascribed to another State, and the applicant's unlawful conduct in the instant case did not give rise to the violation he complained of or contribute to bringing it about.

7.  Nor do I think it possible to strike the case out of the Court's list under Rule 49 of Rules of Court A, as the Government also requested, seeing that the Convention says nothing about such a form of terminating the proceedings and in view of its exceptional nature, requiring a narrow interpretation.  All the eventualities contemplated in that Rule, paragraphs 1 and 2, concern solutions of a matter of the parties' own will - discontinuance, friendly settlement or arrangement - and relate to facts or similar circumstances such as abandonment or lapse of the action or satisfaction of the applicant's claim out of court.  Failure to comply with the conditions of provisional release in the specific case of Article 5 para . 3 (art. 5-3) of the Convention is not a fact of a kind to provide a solution of the matter but a fact likely to put in issue the admissibility of the complaint.

8.  A decision that the case is inadmissible under Articles 27 para . 2 and 29 (art. 27-2, art. 29) of the Convention therefore seems to me to be the most satisfactory solution from the procedural point of view.  Furthermore, it is required by the good faith that the parties must show in their conduct in Convention proceedings and the respect they must show for the international human rights institutions and for the courts of democratic societies.  The Commission member Mr Martínez asked, at the end of his dissenting opinion: "By what right can a person who has treated the courts of a democratic State with scorn proceed against that State in the circumstances of this case?" That question should have received a negative reply: protection, through the Convention system, of a detained person to be tried within a reasonable time or released pending trial requires, other than for well-founded reasons, compliance with the conditions of provisional release to ensure that the person concerned appears before the court which is to try him, conditions which the applicant had formally accepted before the national courts and before the Commission.

9.  Consequently, in my opinion, the Commission, in the first place, acting under the aforesaid Article 29 (art. 29), should have dismissed the application, as requested by the Spanish Government, who also sought to have the case struck out of the list in reliance on Article 30 para . 1 (c) (art. 30-1-c) of the Convention.  Subsequently, the Court - in accordance with its settled, albeit contested, case-law on the fullness of its jurisdiction (De Wilde, Ooms and Versyp v. Belgium j udgment of 18 June 1971, Series A no. 12, pp. 29-30, paras . 47-52, and the four separate opinions annexed to that judgment, and my dissenting opinion annexed to the Cardot v. France judgment of 19 March 1991, Series A no. 200, pp. 23-24) - should have allowed the Spanish Government's preliminary objection or declared the application inadmissible of its own motion, without ruling on the merits of the case.

[1] The case is numbered 26/1994/473/554.  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) 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] Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 321 of Series A of the Publications of the Court), but a copy of the Commission's report is available from the registry.