PARTLY DISSENTING OPINION OF JUDGE KOVLER

I cannot share the conclusions of the Court as regards the admissibility of the complaint under Article 5 of the Convention and the violation of that provision in this case.

Taking into account the Court ’ s findings concerning the substantive limb of Article 2 of the Convention in respect of the presumed death of Elbek Tashukhadzhiyev prior to the ratification of the Convention by the respondent State (5 May 1998), I conclude that his detention for a number of hours in February 1996 before his presumed death also falls outside the Court ’ s competence ratione temporis . I cannot accept the finding of “a continuing violation” of Article 5 (see paragraph 86 of the judgment), founded on a formalistic interpretation of the Varnava test . It follows for me that the Court is not competent to examine whether the applicant had an “arguable claim” of a breach of a substantive Convention right (see, among other authorities, Voroshilov v. Russia (dec.), no. 21501/02, 8 December 2005, and Meriakri v. Moldova (dec.), no. 53487/99, 16 January 2001).