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You are here: BAILII >> Databases >> European Court of Human Rights >> KOENDJBIHARIE v. THE NETHERLANDS - 11487/85 [1990] ECHR 28 (25 October 1990)
URL: http://www.bailii.org/eu/cases/ECHR/1990/28.html
Cite as: [1990] ECHR 28, (1991) 13 EHRR 820, 13 EHRR 820
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In the Koendjbiharie case*,
_______________
* Note by the Registrar: The case is numbered 27/1989/187/247. 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.
_______________
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention")* and the relevant
provisions of the Rules of Court**, as a Chamber composed of the
following judges:
_______________
Notes by the Registrar:
* As amended by Article 11 of Protocol No. 8 (P8-11) to the
Convention which came into force on 1 January 1990.
** The amendments to the Rules of Court which entered into force on
1 April 1989 are applicable to this case.
_______________
Mr R. Ryssdal, President,
Mr Thór Vilhjálmsson,
Mr L.-E. Pettiti,
Mr B. Walsh,
Mr R. Bernhardt,
Mr A. Spielmann,
Mr N. Valticos,
Mr S.K. Martens,
Mr I. Foighel,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 27 June and 28 September 1990,
Delivers the following judgment, which was adopted on the
last-mentioned date:
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 13 December 1989, within the
three-month period laid down by Article 32 § 1 and Article 47
(art. 32-1, art. 47) of the Convention. It originated in an
application (no. 11487/85) against the Kingdom of the Netherlands
lodged with the Commission under Article 25 (art. 25) by
Mr Jonas Mohamed Rafiek Koendjbiharie, a Netherlands national,
on 18 March 1985.
The Commission's request referred to Articles 44 and 48 (art. 44,
art. 48) and to the declaration whereby the Netherlands recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
object of the request was to obtain a decision as to whether the facts
of the case disclosed a breach by the respondent State of its
obligations under Article 5 §§ 1 and 4 (art. 5-1, art. 5-4) and
Article 6 §§ 1 and 3 (art. 6-1, art. 6-3) of the Convention.
2. In response to the enquiry made in accordance with
Rule 33 § 3 (d) of the Rules of Court, the applicant stated that he
wished to take part in the proceedings and designated the lawyer who
would represent him (Rule 30).
3. On 19 December 1989 the President of the Court decided that,
pursuant to Rule 21 § 6 and in the interests of the proper
administration of justice, this case and the Keus case* should be
heard by the same Chamber. The Chamber to be constituted for this
purpose included ex officio Mr S.K. Martens, the elected judge of
Netherlands nationality (Article 43 of the Convention) (art. 43),
and Mr R. Ryssdal, the President of the Court (Rule 21 § 3 (b)). On
27 January 1990, in the presence of the Registrar, the President drew
by lot the names of the other seven members, namely
Mr Thór Vilhjálmsson, Mr L.-E. Pettiti, Mr B. Walsh, Mr R. Bernhardt,
Mr N. Valticos, Mrs E. Palm and Mr I. Foighel (Article 43 in fine of
the Convention and Rule 21 § 4) (art. 43). Subsequently,
Mr A. Spielmann, substitute judge, replaced Mrs Palm, who was unable
to take part in the consideration of the case (Rule 24 § 1).
_______________
* Note by the Registrar: 30/1989/190/250.
_______________
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 § 5) and, through the Registrar, consulted the Agent of the
Netherlands Government ("the Government"), the Delegate of the
Commission and the applicant's representative on the need for a
written procedure (Rule 37 § 1).
In accordance with the order made in consequence, the Registrar
received the Government's memorial on 23 April 1990. The applicant's
claims under Article 50 (art. 50) of the Convention were communicated
to him on 28 May.
5. On 29 May the Commission produced various documents, as
requested by the Registrar on the instructions of the Court.
6. Having consulted, through the Registrar, those who would be
appearing before the Court, the President directed on 13 February 1990
that the oral proceedings should open on 27 June 1990 (Rule 38).
7. The hearing took place in public in the Human Rights Building,
Strasbourg, on the appointed day. The Court had held a preparatory
meeting beforehand.
There appeared before the Court:
(a) for the Government
Miss D.S. van Heukelom, Assistant Legal Adviser,
Ministry of Foreign Affairs, Agent,
Mr J.C. De Wijkerslooth de Weerdesteijn,
Landsadvokaat, Counsel,
Mrs R.E. van Galen-Herrmann, Ministry of Justice, Adviser;
(b) for the Commission
Mr H. Vandenberghe, Delegate;
(c) for the applicant
Mrs G.E.M. Later, advokate en procureur, Counsel,
Mr M.T.M. Zumpolle, Adviser.
The Court heard addresses by Miss van Heukelom and Mr De Wijkerslooth
de Weerdesteijn for the Government, by Mr Vandenberghe for the
Commission and by Mrs Later for the applicant, as well as their
answers to its questions.
AS TO THE FACTS
I. Particular circumstances of the case
8. Mr Jonas Mohamed Rafiek Koendjbiharie is a Netherlands
national, born in Surinam. He resides at present in The Hague.
9. On appeal from a judgment of the District Court
(Arrondissementsrechtbank) of The Hague, the Court of Appeal
(Gerechtshof) of The Hague sentenced him on 22 June 1979 to a term of
nine months' imprisonment, to be followed by two years' placement at
the Government's disposal (see paragraph 17 below), for rape
aggravated by a previous conviction for the same offence.
On 22 January 1980 the Supreme Court (Hoge Raad) dismissed his appeal
on a point of law.
10. On coming out of prison, Mr Koendjbiharie was committed on
17 March 1980 to the State psychiatric clinic "Veldzicht" at Balkbrug,
from where he absconded on 24 September 1981. Suspected of a further
rape, he was arrested on 16 April 1982 and placed in detention on
remand, but was acquitted by the District Court of The Hague on
22 July 1982. After a period spent at a remand centre in The Hague,
he was examined at the Utrecht "Institute of Selection" from
13 September to 20 December 1982, when he was taken back to the
"Veldzicht" clinic.
In the meantime, on 19 April 1982, his placement had been extended by
the Court of Appeal of The Hague until 2 April 1984.
11. Mr Koendjbiharie's lawyer, Mrs Later, learned in March 1984
that, according to the Ministry of Justice, the applicant's period of
placement would end on 8 July rather than 2 April 1984, because it had
been suspended during his detention on remand from 16 April to
22 July 1982 (see paragraphs 10 above and 17 below). The applicant
objected to this, claiming that his acquittal had deprived the
detention of any legal basis and, accordingly, of any effect on the
application of Article 37 (b) § 3 of the Criminal Code
(see paragraph 17 below).
On 17 May 1984 he filed an interlocutory application (kort geding),
for his immediate release, with the President of the District Court of
The Hague, relying on this argument. He added that his placement had
ended on 2 April 1984 since no application to extend it had been
submitted within the statutory time-limit (see paragraph 18 below).
The President, before whom the State had argued in favour of the
position taken by the Ministry of Justice, dismissed
Mr Koendjbiharie's application on 29 May 1984. The latter appealed.
12. In the intervening period, on 17 May 1984, the Attorney
General at the Court of Appeal of The Hague had requested the Court of
Appeal, which had jurisdiction pursuant to Article 37 (b) of the
Criminal Code, to extend by one year the applicant's placement at the
Government's disposal.
At the hearing on 4 June 1984 the Court of Appeal outlined the opinion
of the "Veldzicht" clinic, then questioned the member of staff who was
responsible for co-ordinating the applicant's treatment at the clinic.
Mrs Later put forward the arguments summarised above (see paragraph 11
above), contending that the Attorney General's application was
inadmissible. In the alternative she referred to Mr Koendjbiharie's
marriage plans which, she maintained, would reduce the risk of his
re-offending. She also asked the court to hear, before giving its
decision, at least one of the two experts which she had named.
By an interlocutory judgment on 22 June the court decided to hear, on
17 August, the views of the senior physician of the "Veldzicht"
clinic.
13. On that date the physician in question failed to appear, but
the court did not consider it necessary to call him again, because
Mr Koendjbiharie no longer intended to marry.
On 21 September 1984 it extended by one year the applicant's
placement, stating that it had been interrupted during his detention
on remand.
The applicant, who had absconded on around 17 September, was informed
of this decision by his lawyer, who, after making numerous
representations, received a copy of it on 31 October.
14. On 17 January 1985 before the Court of Appeal of The Hague, to
which he had appealed against the interlocutory order of 29 May 1984
(see paragraph 11 above), the applicant relied on Article 37 (h) of
the Criminal Code. He considered that his continued confinement was
unlawful inasmuch as the judgment of 21 September 1984 had not been
rendered within two months of the application for extension submitted
by the Attorney General (see paragraphs 12-13 above and paragraph 20
below). By a judgment of 18 April 1985, the court rejected this
argument on the ground that the delay in giving judgment did not
affect the validity of the decision delivered on 21 September 1984 by
the Criminal Division. It also dismissed the complaints directed
against the President's order, which it upheld.
15. On 8 March 1985 Mr Koendjbiharie unsuccessfully requested the
Minister for Justice to order his conditional release. On
15 April 1985 he went voluntarily to the Utrecht "Institute of
Selection", where he was confined.
16. On 31 May 1985 the Attorney General filed an application for a
further extension of the applicant's confinement for a period of one
year. During the hearing Mrs Later repeated her earlier arguments (see
paragraphs 11 and 14 above), but the court rejected them by a decision
of 25 June 1985. However, it refused to allow the Attorney General's
application, finding that there were not sufficient reasons for
granting it.
II. Relevant domestic law and practice
17. Since 1928 the Netherlands Criminal Code (Wetboek van
Strafrecht) has contained special provisions applying to persons
suffering from a mental deficiency or mental illness. The provisions
were substantially amended by an Act of 19 November 1986, which came
into force on 1 September 1988. According to Article 37 (as
applicable to the events in the present case), the perpetrator of an
offence which cannot be imputed to him because he suffers from a
mental deficiency or mental illness is not liable to punishment. If
the protection of public order so requires, the court may direct that
such a person be placed at the Government's disposal so that he can
receive treatment at the Government's expense.
Such a measure may also be taken in conjunction with a criminal
sanction if the convicted person's responsibility was merely
diminished at the time of the offence (Article 37 (a)).
Under Article 37 (b) § 1, the placement lasts for two years unless the
Government terminates it earlier. This period commences as soon as
the judgment ordering it has become final (paragraph 2 thereof); it is
suspended by any other deprivation of liberty resulting from a
judicial decision (paragraph 3, according to the most widely accepted
interpretation).
18. The court which makes the initial order may extend the
confinement, on each occasion for one or two years
(Article 37 (b) § 2), on an application by the crown prosecutor,
himself acting on the opinion of the director of the clinic. To this
end, the crown prosecutor has to submit an application to the court in
question not more than two months and not less than one month before
the placement period is due to expire (Article 37 (f) § 1). According
to case-law, failure to comply with this requirement renders the
application inadmissible.
The prosecutor must attach to his application a copy of the clinic's
report on the physical and mental health of the person concerned
together with a reasoned declaration - preferably by the doctor
treating the patient - on the appropriateness of extending the
confinement (Article 37 (f) § 2).
19. Article 37 (g) governs the procedure to be followed for the
examination of the application: if possible the court is to hear the
person in question and, if it considers additional information to be
necessary, interview witnesses and experts. The crown prosecutor and
the lawyer of the person confined may attend any hearing, of which a
record is drawn up.
By a circular of 16 April 1980, the Minister for Justice issued
instructions to the courts to hear the person concerned before
extending his placement.
20. By virtue of Article 37 (h) § 1, the court is to give its
decision within two months following the lodging of the application.
However, Article 37 (b) § 4 states that the person concerned remains
at the Government's disposal until the court has ruled on the
extension. In a judgment of 14 June 1974 (Nederlandse Jurisprudentie
(NJ) 1974, no. 436), the Supreme Court (Civil Division) took the view
that the last-mentioned rule applied even if the court exceeded the
two-month time-limit, which was merely of an exhortatory nature. While
recognising how inconvenient this interpretation might be for the
person concerned, the court noted that this did not mean that the
latter was entirely without a remedy against such a breach:
"if, once the time-limit laid down in Article 37 (h) has expired, the
decision provided for in that provision is arbitrarily delayed, the
Government may find itself required, if necessary as a result of legal
action by the person confined, to terminate the placement extended
pursuant to Article 37 (b) § 4."
By a judgment of 29 September 1989 (NJ 1990, no. 2) the Supreme Court
(Civil Division) gave the following clarification regarding the 1974
decision: in itself the failure to comply with the time-limit laid
down in Article 37 (h) does not give rise to an obligation to
terminate the placement; the existence of such an obligation depends
in particular on the extent to which, and the reasons for which, the
time-limit is exceeded as well as the personal and social interests at
stake.
According to a judgment of the Supreme Court (Civil Division)
of 9 January 1970 (NJ 1970, no. 240), it falls to the court to decide
to what extent it must state its reasons in the order extending the
confinement, which is neither delivered in public nor appealable
(Article 37 (h) § 2), but is served on the person concerned
(Article 37 (h) § 3).
21. A person placed at the Government's disposal may at any time
request the Minister for Justice to revoke the measure. By virtue of
Article 37 (e), the Minister may terminate the confinement at any
moment, unconditionally or conditionally, if personal or material
circumstances justify such a decision.
PROCEEDINGS BEFORE THE COMMISSION
22. In his application of 18 March 1985 to the Commission
(no. 11487/85), Mr Koendjbiharie complained that his confinement had
been extended on the basis of an application submitted after the date
on which it should normally have ceased and that the relevant court
had rendered its decision neither within two months of the lodging of
the Crown Prosecutor's application nor "speedily". In his view, the
contested proceedings had infringed Article 5 §§ 1 and 4 (art. 5-1,
art. 5-4) of the Convention as well as Article 6 §§ 1 and 3 (art. 6-1,
art. 6-3) thereof. In addition, he claimed to be the victim of
discrimination based on his national origin, contrary to Article 14 in
conjunction with Article 6 § 1 (art. 14+6-1), and of inhuman and
degrading treatment inflicted by the staff of the hospital, in breach
of Article 3 (art. 3).
23. The Commission declared the application admissible
on 9 December 1988. In its report of 12 October 1989 (Article 31)
(art. 31), it expressed the unanimous opinion that there had been a
violation of Article 5 §§ 1 and 4 (art. 5-1, art. 5-4), but not
of Article 6 §§ 1 and 3 (art. 6-1, art. 6-3), nor of Articles 14
and 3 (art. 14, art. 3).
The full text of the Commission's opinion is reproduced as an annex to
this judgment.*
_______________
* Note by the Registrar: For practical reasons this annex will
appear only with the printed version of the judgment (volume 185-B of
Series A of the Publications of the Court), but a copy of the Commission's
report is obtainable from the registry.
_______________
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 (art. 5-1)
24. The applicant complained of a violation of Article 5 § 1
(art. 5-1) which, in so far as he relied on it, provides as follows:
"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:
(a) the lawful detention of a person after conviction by a competent
court;
...
(e) the lawful detention of persons for the prevention of the
spreading of infectious diseases, of persons of unsound mind,
alcoholics or drug addicts or vagrants;
... ."
In the first place he alleged that the Attorney General at the Court
of Appeal of The Hague had not lodged his application of 17 May 1984
for an extension of the confinement (see paragraph 12 above) until
after the statutory time-limit had expired, when - for reasons
referred to above (see paragraph 11) - the placement had already
ended. In addition, he complained that no record had been drawn up of
the hearing of 17 August 1984 before the Court of Appeal (see
paragraphs 12-13 above), which, furthermore, had failed to render its
decision within the two-month time-limit prescribed to that effect.
Finally, the decision had never been served on the applicant; only his
lawyer had received a copy of it, over a month after its delivery.
25. In its report, the Commission did not refer to these various
complaints, but at the hearing on 27 June 1990, its Delegate confirmed
that the applicant had indeed raised them before it. As they relate
to the proceedings which led to the order extending the confinement
made on 21 September 1984 by the Court of Appeal of The Hague, it is
appropriate to examine them, if necessary, in the light of the
provision under which those proceedings fall in any event to be dealt
with, namely paragraph 4 of Article 5 (art. 5-4).
II. ALLEGED VIOLATION OF ARTICLE 5 § 4 (art. 5-4)
26. According to Article 5 § 4 (art. 5-4),
"Everyone who is deprived of his liberty by arrest or detention shall
be entitled to take proceedings by which the lawfulness of his
detention shall be decided speedily by a court and his release ordered
if the detention is not lawful."
In Mr Koendjbiharie's submission, the Court of Appeal did not decide
on his case "speedily".
27. Consideration of the Netherlands legal system as described
above (see paragraphs 17-21) leads the Court to conclude that the
contested proceedings amounted to an "automatic periodic review of a
judicial character" within the meaning of the X v. United Kingdom
judgment of 5 November 1981 (Series A no. 46, p. 23, § 52).
According to the case-law on the scope of paragraphs 1 and 4 of
Article 5 (art. 5-1, art. 5-4), in order to satisfy the requirements
of the Convention, such review must comply with both the substantive
and procedural rules of the national legislation and moreover be
conducted in conformity with the aim of Article 5 (art. 5): to protect
the individual against arbitrariness, in particular with regard to the
time taken to give a decision. That is the first point to be
examined, being the one which Mr Koendjbiharie stressed in particular.
28. In the Court's view, the relevant period began on 17 May 1984,
when the application to extend the confinement was filed with the
Court of Appeal, and ended on the day on which the order of
21 September 1984 was communicated to the applicant or to his lawyer,
given that the decision was not delivered in public (see paragraph 20
above). Although it has been impossible to establish that last date
with certainty, it appears from the evidence that Mrs Later learned of
the extension shortly afterwards; it therefore seems reasonable to
consider that the period in question ended in late September 1984.
29. On the face of it, a lapse of time of more than four months
appears incompatible with the notion of speediness. This impression
is strengthened by the fact that, when amending national law, the
Netherlands legislature set at three months the period exceptionally
available to a court which, like the Court of Appeal in this case, is
considering the possibility, after a first hearing, of refusing the
extension, but deems it necessary to obtain additional information
(see paragraph 12 above).
A more detailed study of the facts of the case does not dispel this
impression, quite the contrary. The Court of Appeal was evidently not
slow to initiate the examination of the application - lodged on
17 May, the court considered it on 4 June - but it is legitimate to
question its decision to adjourn the proceedings until 17 August. The
Government supplied no information capable of justifying it. Nor did
they provide any explanation why the Court of Appeal took more than
one month after the hearing to draft a brief order.
30. The Court, accordingly, finds a failure to comply with the
requirement of "speediness" laid down in paragraph 4 of Article 5
(art. 5-4) of the Convention.
31. This conclusion makes it unnecessary to consider whether there
has also been a breach of paragraph 1 (art. 5-1) on account of the
failure to comply with the two-month period prescribed by
Article 37 (h) § 1 of the Netherlands Criminal Code in order to ensure
that proceedings progress rapidly. Nor in the circumstances of the
case is it necessary for the Court to examine the other complaints
made by Mr Koendjbiharie under Article 5 (art. 5) of the Convention.
III. ALLEGED VIOLATION OF ARTICLES 3, 6 AND 14 (art. 3, art. 6,
art. 14)
32. Initially the applicant also relied on Articles 3, 6 and 14
(art. 3, art. 6, art. 14) (see paragraph 22 above), but he withdrew
these complaints at the hearing before the Court, which does not
consider it necessary to examine them of its own motion.
IV. APPLICATION OF ARTICLE 50 (art. 50)
33. Under Article 50 (art. 50) of the Convention,
"If the Court finds that a decision or a measure taken by a legal
authority or any other authority of a High Contracting Party is
completely or partially in conflict with the obligations arising from
the ... Convention, and if the internal law of the said Party allows
only partial reparation to be made for the consequences of this
decision or measure, the decision of the Court shall, if necessary,
afford just satisfaction to the injured party."
A. Damage
34. Mr Koendjbiharie claimed in the first place 100 guilders for
each day of "unlawful" detention from 17 July to 17 September 1984 and
from 15 April to 25 June 1985. He had suffered in particular while he
was awaiting the outcome of the proceedings concerning the extension
of his confinement.
In the Government's view there was no sufficient causal connection
between the damage alleged and the violations of Article 5 (art. 5)
complained of; there was nothing to indicate that the applicant would
have been released if the Convention had been complied with. The
Commission's Delegate did not submit any observations on this
question.
The Court considers that the length of the proceedings which led to
the order of 21 September 1984 may have engendered in the applicant a
certain feeling of frustration, but not to the extent of justifying
the award of compensation. The finding of a violation of
Article 5 § 4 (art. 5-4) constitutes in itself sufficient just
satisfaction in this respect.
B. Costs and expenses
35. Mr Koendjbiharie also sought a sum of 18,989.62 guilders in
respect of costs and fees of the lawyer who presented his case before
the Commission and the Court.
The Government argued that Mr Koendjbiharie, who had received legal
aid in Strasbourg, had not shown that he had to pay his lawyer
additional fees whose reimbursement he was entitled to request.
In the Court's view, the mere fact that the applicant was granted
legal aid does not mean that he is not under an obligation to settle
the fee note drawn up by his counsel and attached to the claim
submitted under Article 50 (art. 50). In the absence of proof to
the contrary, it must be accepted that the applicant is required to
pay his lawyer the amounts set out in the fee note, from which the
legal aid received from the Council of Europe is to be deducted. The
amount in question is consistent with the criteria laid down in the
Court's case-law. The applicant should therefore be awarded
18,989.62 guilders, less the 12,397.50 francs already paid as legal
aid.
FOR THESE REASONS, THE COURT
1. Holds unanimously that there has been a violation of
Article 5 § 4 (art. 5-4) inasmuch as the Court of Appeal of The Hague
failed to rule "speedily";
2. Holds by eight votes to one that it is unnecessary to examine
the other complaints based on Article 5 (art. 5);
3. Holds unanimously that it is also unnecessary to examine the
complaints initially submitted by the applicant and based on
Articles 3, 6 and 14 (art. 3, art. 6, art. 14);
4. Holds unanimously that the Netherlands is to pay to the
applicant, under Article 50 (art. 50), the sum of 18,989.62 guilders
(eighteen thousand nine hundred and eighty-nine guilders and sixty-two
cents) less 12,397.50 French francs (twelve thousand three hundred and
ninety-seven francs and fifty centimes);
5. Dismisses unanimously the remainder of the claim for just
satisfaction.
Done in English and in French, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 25 October 1990.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
In accordance with Article 51 § 2 (art. 51-2) of the Convention and
Rule 53 § 2 of the Rules of Court, the dissenting opinion of
Mr Bernhardt is annexed to this judgment.
Initialled: R. R.
Initialled: M.-A. E.
DISSENTING OPINION OF JUDGE BERNHARDT
I have voted against the statement in number 2 of the operative part
of the judgment "that it is unnecessary to examine the complaints
based on Article 5 (art. 5)". In my view, the Court should have also
examined the question whether the decision of the Court of Appeal of
The Hague of 21 September 1984, which extended by one year the
applicant's period of placement at the Government's disposal, has been
taken "in accordance with a procedure described by law"
(Article 5 § 1) (art. 5-1).
The following dates are of significance in this regard. On
17 May 1984, the Attorney General requested the extension of the
applicant's placement at the Government's disposal. Under
Article 37 (h) of the Netherlands Criminal Code, the Court of Appeal
was required to take its decision within a period of two months, that
is, by 17 July 1984. However, the decision was only taken on
21 September 1984, more than two months beyond the time-limit. The
applicant's previous placement had already expired on 8 July 1984
(cf. paragraph 11 of the judgment).
In cases involving deprivation of liberty, the various procedural
guarantees in Article 5 (art. 5) are of the utmost importance and
should be given equal weight. The finding that a decision has not
been taken "speedily", in violation of Article 5 § 4 (art. 5-4),
should not have absolved the Court from examining the guarantees under
paragraph 1 of that Article (art. 5-1).