PARTLY DISSENTING OPINION OF JUDGE KELLER

1 . Although I voted with the majority as concerns the violations of Articles 5 § 1, 6 § 1 and 11 of the Convention found in the present case, I regret that I am unable to agree with my colleagues with regard to Article 18 of the Convention. For the reasons set out below, I consider that the merits of the complaint submitted by the applicants under that provision ought also to have been examined.

2 . Under Article 18 of the Convention, the applicants in the present case argued that they suffered violations of their rights under Article 5 § 1 and Article 11 of the Convention that were inflicted “for political revenge” (see paragraph 52 of the majority ’ s judgment). Though this allegation falls squarely within the ambit of Article 18, the majority declared it unnecessary to examine whether that provision had been violated. Instead, my colleagues emphasised that they had already found a violation of the applicants ’ rights under Article 11 of the Convention and established that this was likely to have a “chilling effect” on others (see paragraph 55 of the majority ’ s judgment, referring to paragraph 32 above ).

3 . Article 18 of the Convention, however, enshrines values beyond the protection of liberty or of free assembly and association. In this regard, I should like to refer to my partly dissenting opinion in Kasparov v. Russia (no. 53659/07, 11 October 2016), a case brought by the first applicant in the present case. Mutatis mutandis , the arguments made therein also apply here. In particular, I reiterate that, although it is an accessory provision, Article 18 of the Convention must be understood as protecting a separate legal interest, additional to that protected by the other Convention rights and freedoms with which it is invoked. This understanding of the provision follows both from the fact that it was enshrined in the Convention as a separate article, which logically entails a need to grant it a reasonable scope of independent application, and from its drafting history. [1]

4 . The majority ’ s approach to Article 18 of the Convention in the present case is not unprecedented. Through its interpretation of the provision, including by means of the high burden of proof it often imposes and its propensity to declare a separate examination of the relevant complaints unnecessary, the Court has made it exceedingly difficult for applicants to succeed in claiming a violation of Article 18 before the Court. However, cases such as the present one disclose an urgent need to address the instrumentalisation of legal proceedings in order to target and silence dissidents and oppositional actors in certain member States. As I have previously argued, in a joint partly dissenting opinion with judges Nicolaou and Dedov ( Navalnyy and Ofitserov v. Russia , nos. 46632/13 and 28671/14, § 7, 23 February 2016 ), “such a distortion of the law – the singling out of dissidents in order to silence them by means of criminal proceedings – is precisely the sort of abuse from which Article 18 is intended to provide protection.”

5 . The present case discloses an unambiguous prima facie case of a violation of Article 18 of the Convention , and for that reason the Court should have examined the merits of the complaint under that a rticle. Instead, the majority has chosen an approach that deprives Article 18 of a reasonable scope of application. This is alarming, given that tendencies such as those which underlie the present case run counter to the demands of a democratic society. The Court should therefore urgently reconsider its current approach, which neutralises Article 18 despite the fact that this provision represents the most appropriate avenue for responding to undemocratic tendencies.

CONCURRING OPINION OF JUDGE SERGHIDES

1 . I voted in favour of the judgment in full and the aim of this opinion is to deal more extensively with the finding of the Court that there has been a violation of Article 5 § 1 of the Convention in respect of the second applicant.

2 . Article 5 § 1 (c) of the Convention provides as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c) the lawful arrest or detention of a person affected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence ... ”.

3 . The second applicant was held in the Basmannyy District police station from 3.45 p.m. on 24 November 2007 “until an unspecified time on 26 November 2007” (see paragraph 9 of the judgment). He was charged “with breaching the established procedure for conducting public events and disobeying lawful police orders, offences under Articles 20.2 § 2 and 19.3 of the Code of Administrative Offences” (ibid . ).

4 . The relevant provisions of Russian procedural legislation, dealing with administrative detention, are Article 27.3(1)(3) and (5) and Article 27.5(1)(2) and (3) of the Code o f Administrative Offences of 30 December 2001; they have been translated into English and are quoted in Navalnyy and Yashin v. Russia (no. 76204/11, § 44, 4 December 2014) (see also paragraph 18 of the present judgment, which refers, for a summary of the relevant domestic law, to Navalnyy and Yashin , as well as to Kasparov and Others v. Russia (no. 21613/07, § 35, 3 October 2013)). The relevant domestic law quoted in Navalnyy and Yashin , cited above , § 44, dealing with the above provisions, as well as with some other relevant provisions, reads as follows:

“ Article 27.3 Administrative detention

1. Administrative detention or short-term restriction of an individual ’ s liberty may be applied in exceptional cases if this is necessary for the prompt and proper examination of the alleged administrative offence or to secure the enforcement of any penalty imposed by a judgment concerning an administrative offence. ...

...

3. Where the detained person so requests, his family, the administrative department at his place of work or study and his defence counsel shall be informed of his whereabouts.

...

5. The detained person shall have his rights and obligations under this Code explained to him, and the corresponding entry shall be made in the administrative arrest report.

Article 27.4 Administrative detention report

1. Administrative detention shall be recorded in a report ...

2. ... If he or she so requests, the detained person shall be given a copy of the administrative detention report.

Article 27.5 Duration of administrative detention

1. The duration of administrative detention shall not exceed three hours, except in the cases set out in paragraphs 2 and 3 of this Article.

2. Persons subject to administrative proceedings concerning offences involving unlawful crossing of the Russian border ... may be subject to administrative detention for up to 48 hours.

3. Persons subject to administrative proceedings concerning offences punishable, among other administrative sanctions, by administrative detention may be subject to administrative detention for up to 48 hours.

4. The term of the administrative detention is calculated from the time when [a person] escorted in accordance with Article 27.2 is taken [to the police station], and in respect of a person in a state of alcoholic intoxication, from the time of his sobering up.”

5 . The key purpose of Article 5 is to prevent arbitrary or unjustified deprivations of liberty ( see McKay v. the United Kingdom [GC], no. 543/03, § 30, ECHR 2006 ‑ X; Witold Litwa v. Poland , no. 26629/95, § 78, ECHR 2000 ‑ III; and Winterwerp v. Netherlands, A33 (1979), 2 EHRR 387, § 37 ). Therefore, the Court does not consider itself bound by the legal conclusions of the domestic authorities as to whether or not there has been a deprivation of liberty, and it thus undertakes an autonomous assessment of the situation ( see H.L. v. the United Kingdom , no. 45508/99, § 90, ECHR 2004 ‑ IX; H.M. v. Switzerland , no. 39187/98, §§ 30 and 48, ECHR 2002 ‑ II; and Creangă v. Romania [GC], no. 29226/03, § 92, 23 February 2012 ). In view of the above, the notion of “arbitrariness” in Article 5 § 1 extends beyond a lack of conformity with national law, such that a deprivation of liberty may be lawful in terms of domestic law, but still arbitrary, and thus contrary to the Convention ( see Creangă , cited above , § 84, and A. and Others v. the United Kingdom [GC], 3455/05, § 164, 19 February 2009 ). In line with the above case-law, the Court in the present case (see paragraph 38 of the judgment) has held that:

“ ... the ‘ lawfulness ’ of detention under domestic law is not always the decisive factor. The Court must also be satisfied that the detention during the period under consideration was compatible with the purpose of Article 5 § 1 of the Convention, which is to prevent individuals from being deprived in an arbitrary fashion.”

6 . In Frumkin v. Russia ( no. 74568/12 , § 149, ECHR 2016 ) the Court, dealing with a complaint similar to the present, also against Russia, noted “that the duration of administrative detention should not, as a general rule, exceed three hours, which is an indication of the period of time the law regards as reasonable and sufficient for drawing up an administrative offence report”. It then went on (in §§ 150-52 , ibid. ) to say the following, ultimately finding a violation of Article 5 § 1 of the Convention:

“150. ... The Government argued that the term of the applicant ’ s detention remained within the forty-eight-hour time-limit provided for by Article 27.5 § 3 of the Code of Administrative Offences. However, neither the Government nor any other domestic authorities have provided any justification as required by Article 27.3 of the Code, namely that it was an ‘ exceptional case ’ or that it was ‘ necessary for the prompt and proper examination of the alleged administrative offence ’ . In the absence of any explicit reasons given by the authorities for not releasing the applicant, the Court considers that his thirty-six-hour detention pending trial was unjustified and arbitrary.

151. In view of the foregoing, the Court finds a breach of the applicant ’ s right to liberty on account of the lack of reasons and legal grounds for remanding him in custody pending the hearing of his case by the Justice of the Peace.

152. Accordingly, there has been a violation of Article 5 § 1 of the Convention.”

Making a reference to the above case, the Court in the present case has held that “[i]n the absence of any explicit reasons given by the authorities for detaining him [the second applicant] for more than three hours, the Court considers that his detention was unlawful” (see paragraph 40 of the judgment).

7 . In my view, the test for a detention to be “lawful” under Article 5 § 1 and Article 5 § 1 (c) should be threefold :

(a) There must be “a procedure prescribed by law” (see Article 5 § 1 of the Convention).

(b) The detention must be lawful according to the national substantive and procedural law (see Article 5 § 1 and 5 § 1 (c) of the Convention).

(c) The detention should not be unjustified and arbitrary, contrary to Article 5 § 1 and Article 5 § 1 (c) of the Convention and the relevant case-law of the Court.

8 . As has been said above, in order to meet the requirement of lawfulness, detention must be “in accordance with a procedure prescribed by law”, as provided in Article 5 § 1 of the Convention. Although this provision expressly deals only with procedure, it has, nevertheless, been interpreted by the Court as also making provision for compliance with substantive law, to the extent that detention must conform to the substantive and procedural rules of national law ( see Del Río Prada v. Spain [GC], 42750/09, § 125, ECHR 2013), or international law, where appropriate (see, inter alia , Medvedyev and Others v. France [GC], no. 3394/03, § 79, 29 March 2010, and Toniolo v. San Marino and Italy , no. 44853/10, § 46, 26 June 2012 ). In Del Río Prada , cited above, § 125, the Court said particularly the following:

“It is well established in the Court ’ s case-law on Article 5 § 1 that all deprivation of liberty must not only be based on one of the exceptions listed in sub-paragraphs (a) to (f) but must also be ‘ lawful ’ . Where the ‘ lawfulness ’ of detention is in issue, including the question whether ‘ a procedure prescribed by law ’ has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. This primarily requires any arrest or detention to have a legal basis in domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention (see Kafkaris , cited above, § 116, and M. v. Germany , cited above, § 90).”

9 . Since the second applicant in the present case was charged with the offences under Articles 20.2 § 2 and 19.3 of the Code of Administrative Offences, test (b) above as to compliance with the substantive law was satisfied. Also, since there was a procedure regulating the detention, namely that provided by Article 27.3-5 of the same Code, the provision for the necessity of a procedure in test (a) above was also satisfied.

10 . Nonetheless, without the Government or any other domestic authorities providing any justification for the detention of the second applicant, which exceeded three hours, and lasted about two days, they did not comply with the national procedural law, and their decision was arbitrary, thus failing test (b) above as to compliance with procedure and test (c) above as to the non-arbitrariness criterion. More specifically, they breached :

(a) Article 27.3 § 1 of the Code of Administrative Offences of 30 December 2001 taken in conjunction with Article 27.5 §§ (1)(2) and (3) of the same Code, because the Government did not show, or even argue, that the detention at issue was “an exceptional case”, “necessary for the prompt and proper examination of the alleged administrative offence or to secure the enforcement of any penalty imposed by a judgment concerning an administrative offence”.

(b) Article 5 § 1 of the Convention, as a result of non-compliance with the national procedural law (see sub paragraph (a) above).

(c) Article 5 § 1 (c) of the Convention, as a result of non-compliance with the national procedural law (see sub paragraph (a) above).

(d) Article 5 § 1 and Article 5 § 1 (c) of the Convention, because the detention lasted for more than three hours and was unjustified and arbitrary, being, thus, contrary to the case-law of the Court, based on the purpose of Article 5 § 1 of the Convention, “which is to prevent individuals from being deprived of their liberty in an arbitrary fashion” (see paragraph 38 of the judgment).

11 . It fell within the positive obligation of the respondent State to provide a record with the exact time the detention ended on 26 November 2007. Since the time of the release of the second applicant on that date was left unspecified, if the detention ended any time after 3.45 p.m. that day, the detention would have lasted for more for than 48 hours, and, would, therefore, be contrary to Article 27.5 of the Code of Administrative Offences, which provides for 48 hours as the maximum length of detention. Regarding the importance of providing the Court with a record, proving the exact duration of the detention, it is helpful to refer to Kurt v. Turkey (25 May 1998, § 125, Reports 1998 ‑ III), where the Court stated that:

“ ... the absence of holding data recording such matters as the date, time and location of detention, the name of the detainee as well as the reasons for the detention and the name of the person effecting it must be seen as incompatible with the very purpose of Article 5 of the Convention.”

Not producing a record with the exact duration of detention is also incompatible with the requirement of lawfulness under the Convention. In Anguelova v. Bulgaria, no. 38361/97, § 154, 13 June 2002, the Court held:

“The absence of a record of such matters as the date, time and location of detention, the name of the detainee, the reasons for the detention and the name of the person effecting it must be seen as incompatible with the requirement of lawfulness and with the very purpose of Article 5 of the Convention (see Kurt v. Turkey , judgment of 25 May 1998, Reports 1998-III, pp. 1185-86, § 125, and Çakıcı , cited above, §§ 104 ‑ 05).”

12 . The failure to provide any justification for the detention of the second applicant for such a long time, apart from rendering the detention unlawful, violated the rule of law, the principle of effectiveness and the principle of proportionality.

13 . The basis of the judgment, and correctly so, lies in the purpose of Article 5 § 1 of the Convention, and its narrow or restrictive interpretation; to use its words as to the latter: “ ... the list of exceptions to the right to liberty secured in the Article 5 § 1 is an exhaustive one, and only a narrow interpretation of those exceptions is consistent with the aim of that provision, namely to ensure that no one is arbitrary deprived of his liberty” (see paragraph 38 of the judgment ). Regarding the requirement of a narrow interpretation, reference is made in the judgment to Giulia Manzoni v. Italy (1 July 1997, § 25, Reports 1997-IV), without, however, a more thorough legal analysis on the issue being provided in that case or in the cases cited therein (see Van der Leer v. the Netherlands , 21 February 1990, Series A no. 170-A, p. 12, para. 22; Wassink v. the Netherlands , 27 September 1990, Series A no. 185 ‑ A, p. 11, para. 24; and Quinn v. France , 22 March 1995, Series A no. 311, p. 17, para. 42).

14 . The issues of determination and interpretation of the exceptions to the right to liberty and security are extremely important for the effective protection of the essence of this right. Besides, the principle of effectiveness is of great assistance for the interpretation and application both of the exceptions and the rule (i.e. the right secured) to which the exceptions are allowed. An attempt will thus be made in the following paragraphs to elaborate on the issue of the interpretation of Article 5 § 1 and specifically Article 5 § 1 (c) of the Convention.

15 . The exceptions prove the rule, according to the Latin maxim exceptio probat regulam , and they determine and demarcate its ambit. In the case of Article 5 § 1 of the Convention, the rule is to be found in its first sentence “[e]veryone has the right to liberty and security of person”, which encapsulates the substance of the secured right. The exceptions to the rule are those provided in subparagraphs (a) to (f) of Article 5 § 1.

16 . The wording of Article 5 § 1 that “ [n]o one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law ... ” (emphasis added), followed by six situations, specifically enumerated (subparagraphs (a) to (f)), makes it clear that this list of exceptions was intended to be comprehensive and exhaustive, without leaving room for any other limitation, implied or tacit, being able to restrict further the rule stated above. The list of the exceptions mentioned in subparagraphs (a) to (f) is exhaustive, since these are the only exceptions provided (“save in the following cases”) to the rule, the wording of which begins in a mandatory manner (“no one shall be deprived of”), leaving no room for limitations other than those expressly provided.

17 . Therefore the exceptions provided for in Article 5 § 1 (a)-(f) must be understood in a completely strict sense, and to use the words of Lord Dunedin in Whiteman v. Sadler, [1910] AC 514, at p. 527, “[e]xpress enactment shuts the door to further implication”. The maxim expressio facit cessare tacitum applies here, according to which “no inference is proper if it goes against the express words Parliament has used” or, when adapted to the present case, “words the High Contracting Parties have used” (see Francis A. Bennion, Bennion on Statutory Interpretation – A Code, fifth edition, London, 2008, Section 389, p. 1249.) Bennion further makes the following pertinent point regarding the application of this maxim to “excepting provisions”, as are the provisions of subparagraphs (a) to (f) of Article 5 § 1 of the Convention:

“The maxim expressio unius est exclusio alterius (to express one thing is to exclude another) is an aspect of the principle expressum facit cessare tacitum. Known for short as the expression unius principle. [Ibid, Section 390, at p. 1250]

...

The principle expressio unius est exclusio alterius is often applied to words of exception. An excepting provision may except certain categories either from the Act in which the provision is contained, or from the law generally.

... .

Where An Act contains specific exceptions, it is presumed that these are the only exceptions of the kind intended. ... ” [Ibid, Section 394, at p. 1256]

18 . An interpretation of the exceptions in Article 5 § 1 of the Convention which is not narrow and does not consider the list as exhaustive, would be contrary to the aim of the Article, as stated above. As the Court said in Winterwerp, cited above, § 37 :

“To hold otherwise would not be reconcilable with the text of Article 5 § 1 which sets out an exhaustive list (see the Engel and O thers judgment of 8 June 1976, Series A no. 22, p. 24, para. 57, and the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 74, para. 194) of exceptions calling for a narrow interpretation (see, mutatis mutandis , the Klass and O thers judgment of 6 September 1978, Series A no. 28, p. 21, para. 42, and the Sunday Times judgment of 26 April 1979, Series A no. 30, p. 41, para. 65). Neither would it be in conformity with the object and purpose of Article 5 § 1, namely to ensure that no one should be dispossessed of his liberty in an arbitrary fashion (see the Lawless judgment of 1 July 1961, Series A no. 3, p. 52, and the above-mentioned Engel and O thers judgment, p. 25, para. 58).”

19 . Any uncertainty as regards the issue of limitation of Article 5 § 1 of the Convention would have an adverse impact on both the negative and the positive obligations of the State under this provision, and this would not be fulfilling the purpose of Article 5 § 1 of the Convention. It is to be noted that Article 5 § 1, first sentence, lays a positive obligation on the State not only to refrain from active infringement of the rights in question, but also to take appropriate steps to provide protection against an unlawful interference with those rights to everyone within its jurisdiction (see El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 239, ECHR 2012).

20 . Article 31 § 1 of the Vienna Convention on the Law of Treaties of 1969 ( hereinafter VCLΤ), provides that “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. Having this provision in mind, I shall endeavour to approach the interpretation of Article 5 § 1 and Article 5 § 1 (c) of the Convention from the angle of some other relevant provisions of the Convention and in the light of the object and purpose of those provisions.

21 . Though the Court in the present case considers that it is not necessary to examine whether there has been a violation of Article 18, the provisions of this Article could, nevertheless, be a source in terms of assisting in the proper understanding of the nature and the use of the exceptions to any right secured in the Convention. Under Article 18, which is to be found at the end of Section 1 (entitled “Rights and Freedoms”), a legitimate aim cannot be a pretext for a measure taken for another improper purpose. It specifically provides as follows :

“The restrictions permitted under the Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed”.

22 . From the wording of Article 18 of the Convention, one could draw or deduce the following:

(a) Exceptions to rights in the Convention can only be those “permitted under the Convention”, meaning any express restriction in the Convention, and, thus, by following the maxim expressio unius est exclusio alterius , excluding the possibility of any implied or tacit exception.

(b) The application of the restrictions permitted shall be restrictive in the sense that the exceptions shall not be applied for an improper use, but only for the purpose for which they have been prescribed.

(c) Article 18 of the Convention expressly refers only to the application, but not also to the interpretation of the restrictions to rights in the Convention. Since, however, the application of any exception presupposes an interpretation or an understanding of the exception, the interpretation shall logically also be restrictive.

23 . The above findings apply also regarding the exceptions in Article 5 § 1 (a)-(f) of the Convention, which are the only “restrictions permitted”, for the purposes of Article 5 § 1 and Article 18 (taken together with the former) of the Convention, and which should be applied only for the purpose for which they are prescribed and in a restrictive way.

24 . Article 18 of the Convention could, therefore, assist in the determination of the bright line between the rule of Article 5 § 1 of the Convention and its exceptions, showing that, by strictly interpreting and applying the exception, the rule is given its requisite observance and effect.

25 . The provisions of Article 18 are in full conformity with Article 31 § 1 of the VCLT, as they take into consideration the purpose of the restrictions to a right and their application in good faith, and, at the same time, respecting the rule and giving effect to it. A restrictive interpretation of the exceptions in Article 5 § 1 of the Convention is, also, in line with Article 31 § 1, since their interpretation is based on their text, in its ordinary meaning, taking into consideration the object and the purpose of the right to liberty and security in unison with the restrictions thereto.

26 . Article 17 of the Convention could also support the view that the list of exceptions in Article 5 § 1 of the Convention, as the list of exceptions in any other Article of the Convention, is exhaustive. Article 17 of the Convention provides as follows:

“Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or of their limitation to a greater extent than is provided for in the Convention.”

From this provision and especially having regard to the mandatory and absolute manner in which it is drafted, it is obvious that the rights and their limits are those expressly provided for in the Convention and should be interpreted according to their aim and the principle of effectiveness, and, as such, they should receive protection against anyone.

27 . Apart from Articles 17 and 18, Article 16 of the Convention a contrario supports the view that the list of exceptions in Article 5 § 1 is exhaustive as far as nationals are concerned, as in the present case where the applicants were nationals of the respondent State. Article 16 of the Convention, confining its application only to the political activity of aliens, provides as follows:

“Nothing in Articles 10, 11 and 14 shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activity of aliens.”

From this provision, and following the principle e xpressio unius est exclusio alterius, referred to above, it is clear that the High Contracting Parties are precluded from imposing restrictions on the political activity of nationals, like the applicants in the present case. This, of course, does not, in my view, give the host State an unfettered right to restrict the exercise by an alien of the right under Article 5 § 1 of the Convention.

28 . The rights and freedoms are defined in Section 1 of the Convention and this is clear, inter alia , from the provision of Article 1 of the Convention which reads as follows:

“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention.”

From the wording of the above Article, and particularly the phrase “defined in”, it follows that the determination of the ambit of the rights and freedoms is exclusively and exhaustively made in Section 1 (and, of course, the additional Articles in the Protocols), taking into account also the exceptions to each right (those which, of course, are not absolute rights). In other words, the definition of the rights in Section 1 of the Convention certainly covers the exceptions thereto, which, in a sense, if I may use this term, can be regarded as “characteristics” of those rights. Accordingly, since Section 1 of the Convention defines both the essence of the rights and the exceptions, there is no room for implied or tacit exceptions. The fact of ensuring observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto, under Article 19 of the Convention, certainly refers to the obligation undertaken by these Parties under Article 1 of the Convention to respect and secure human rights, as defined in Section 1 of the Convention together with any exceptions, which form part of their definition.

29 . It is also interesting to note how the preamble to the Convention ends: “[the High Contracting Parties] [h]ave agreed as follows”, followed by the Articles defining or determining the rights secured therein. This means that the intention of the High Contracting Parties was not to leave room for qualifications to rights other than those on which they had agreed and which are expressly referred to in Section 1 of the Convention.

30 . A relevant argument can also be deduced from the provisions of Article 15 of the Convention, namely, that, since derogation from Article 5 can be permitted “[i]n time of war or other public emergency threatening the life of the nation” and apply “to the extent strictly required by the exigencies of the situation” and under the other conditions set by Article 15, consequently no derogation can be permitted under any other conditions. Therefore, apart from such exceptional situations, based on the law of necessity (the relevant Latin maxims being salus populi suprema lex esto and necessitas non habet legem ), which may apply only temporarily in time of emergency, the right under Article 5 § 1 of the Convention may not be affected adversely by any provision of the Convention other than Article 15. However, it must be made clear that any derogation from the obligations of a High Contracting State under Article 15 of the Convention does not have the effect of extending the list of exceptions to any of the rights under the Convention, including Article 5 § 1 of the Convention. Its operation has a temporal character and a certain aim, thus, as stated in the Article, to save a nation from a “public emergency”. In any event, in the present case, there is no issue of emergency, and therefore, neither is there an issue involving application of the provisions of Article 15. Furthermore, in the present case there is no issue of an international armed conflict and, therefore, no question of applying international humanitarian law (see Hassan v. the United Kingdom [GC], no. 29750/09, 16 September 2014).

31 . The right to liberty and security is of the highest importance in a “democratic society” within the meaning of the Convention (see Medvedyev and Others , cited above , § 76; and Ladent v. Poland , no. 11036/03, § 45, 18 March 2008). The Court views the notion of “liberty” alongside Articles 2, 3, and 4, as being “in the first rank of fundamental rights that protect physical security of an individual” (see Mckay, cited above, § 30). In view of the above-mentioned importance of the right to liberty and security, neither this right nor the principle of legal certainty and the rule of law, with which the former is associated, can be secured unless there are concrete and strict exceptions to it, as has been explained above. This point is highlighted in Winterwerp , cited above, § 37, where the Court, referring to a detention not covered by any of the exceptions in Article 5 § 1, and after making it clear that Article 5 § 1 of the Convention called for a narrow interpretation, said :

“Moreover, it would disregard the importance of the right to liberty in a democratic society (see the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, p. 36, para. 65, and the above-mentioned Engel and O thers judgment, p. 35, para. 82 in fine).”

32 . Finally, in view of the above legal analysis and taking into account the facts of the case, I reach the same conclusion as that of the judgment, regarding the interpretation and application of Article 5 § 1 and Article 5 § 1 (c) of the Convention, thus that there has been a violation of Article 5 § 1 of the Convention in respect of the second applicant.

APPENDIX

N o

First name

Last name

Birth year

Place of residence

Representative

Garri Kimovich KASPAROV

1963

Moscow

K.A. Moskalenko

O.O. Mikhaylova

Aleksandr Aleksandrovich AVERIN

1981

Moscow

K.A. Moskalenko

O.O. Mikhaylova

Yuriy Nikolayevich

OREL

1968

Moscow

Lev Ale ksandrovich PONOMAREV

1941

Moscow

Aleksandr Viktorovich STELMAKH

1978

Moscow

Aleksey Valeryevich TARASOV

1968

Moscow

Andrey Pavlovich TOROPOV

1973

Orudyevo,

Moscow Region

[1] 1. Compare on this point, Keller, Helen and Heri, Corina, “Selective Criminal Proceedings and Article 18 of the European Convention on Human Rights’ Untapped Potential to Protect Democracy”, 36 (1 ‑ 6) Human Rights Law Journal (2016), pp. 1-10, with further references.