DISSENTING OPINION OF JUDGE RYSSDAL

With regret I find that I am unable to agree with the majority as regards the violation of paragraph 4 of Article 5 (art. 5-4).

There can be no doubt whatsoever that the President of the District Court constituted a "court" from the organisational point of view; as such he was qualified to carry out the review, required by Article 5 § 4 (art. 5-4), of the decision of the Burgomaster of Emmen .

However, in the course of the proceedings conducted before him a breach of paragraph 1 of Article 5 (art. 5-1) occurred (see paragraph 27 of the judgment). The notion of "lawfulness" under paragraph 1 (art. 5-1) has the same meaning as in paragraph 4 (art. 5-4) (see notably the Brogan and Others judgment of 29 November 1988, Series A no. 145, pp. 34-35, § 65) and the review provided for in the latter provision must be sufficiently broad to cover each of the conditions which are indispensable for the lawfulness of the detention of an individual under paragraph 1 (art. 5-1) (see, inter alia, the Ashingdane judgment of 28 May 1985, Series A no. 93, p. 23, § 52). Accordingly, it should have been possible to appeal against the decision of the President of the District Court in order to have the violation established and redressed (see the van der Leer judgment of 21 February 1990, Series A no. 170, p. 14, § 33), notwithstanding the non-essential nature of that violation. As there is no evidence that such a possibility existed, I conclude that, in addition to the violation of paragraph 1 (art. 5-1), there has also been a violation of paragraph 4 of Article 5 (art. 5-4). This being so, I do not consider it necessary to express a view on the question dealt with in paragraphs 31 to 33 of the judgment.

DISSENTING OPINION OF JUDGE WALSH

As the facts of the case are set out in the judgment of the Court it is not necessary for me to repeat them at any length.

The Court has decided that there has been a breach of Article 5 § 1 (art. 5-1) on the ground that the applicant was deprived of his liberty other than "in accordance with a procedure prescribed by law", (" sauf ... selon les voies légales ").

The procedural violation in question was the absence of a registrar from the hearing of the matter before the President of the District Court. Article 72 of Regulation I made pursuant to the Judiciary (Organisation) Act prescribes that "hearings and examinations" must be conducted in the presence of a registrar whose duty it is to draw up a record of the proceedings. This record is not, nor is it intended to be, a verbatim record of the proceedings.

The Netherlands Supreme Court has held in another case that for the proper carrying out of judicial review "a record, signed by the registrar, must be made of any interviews effected and any questioning at the hearing" and "a copy of the record must be given to the person if he so requests".

In fact the record must also be signed by the President of the Court.

In the present case a record was made by the President of the Court himself because of the absence of the registrar. Apparently this absence would be regarded by the Supreme Court as a sufficient ground for setting aside the order of the District Court. The present applicant ’ s appeal to the Supreme Court was not in fact decided. The applicant had already been released from confinement before he instituted proceedings in the Supreme Court. While one can understand the concern of the Supreme Court for certainty in the record to be reviewed it does not follow that the non-observance of the requirement of the presence and signature of the registrar is necessarily a breach of Article 5 § 1 (art. 5-1).

The procedure followed in the present case was the one prescribed by the law in every respect save that of the presence of the registrar. The registrar had no part to play in the making of the judicial decision.

The judicial decision of the President of the District Court in the matter before him, which was in effect a recourse from the order of the Burgomaster, was in accordance with Article 5 § 4 (art. 5-4) and was one made by a properly constituted tribunal within the meaning of Article 6 (art. 6) and the decision made by the tribunal cannot be said to be in any way in breach of the Convention.

The registrar is a recording agent which is a function totally different from that of adjudication. There has been no evidence to support any suggestion that there was not "a fair trial". There was a record of the proceedings made by the President of the Court. I cannot agree that simply because this would not be regarded as a sufficient record for the purposes of cassation in the Netherlands Supreme Court it must follow that the procedure leading to the adjudication in the District Court was necessarily, or in the events which have happened, in violation of Article 5 § 1 (art. 5-1). The procedural omission in question did not go to the substance of the matter and did not touch upon any matter fundamental to the adjudication of the President of the District Court.

In my opinion there was no breach of Article 5 § 1 (art. 5-1).

[*]  Note by the Registrar: The case is numbered 21/1989/181/239. 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.

[*]   Note by the Registrar: The amendments to the Rules of Court which came into force on 1 April 1989 apply to this case.

[*]  Note by the Registrar.  For practical reasons this annex will appear only with the printed version of the judgment (volume 185-A of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.