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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> SCOTT v. SPAIN - 21335/93 [1996] ECHR 71 (18 December 1996) URL: http://www.bailii.org/eu/cases/ECHR/1996/71.html Cite as: (1997) 24 EHRR 391, [1996] ECHR 71

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In the case of Scott v. Spain (1),

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 Rules of Court A (2), as a Chamber composed of

the following judges:

Mr R. Ryssdal, President,

Mr Thór Vilhjálmsson,

Mr A. Spielmann,

Mr J.M. Morenilla,

Mr A.B. Baka,

Mr G. Mifsud Bonnici,

Mr D. Gotchev,

Mr B. Repik,

Mr K. Jungwiert,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy

Registrar,

Having deliberated in private on 2 September and

30 November 1996,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

1. The case is numbered 84/1995/590/676. 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) (1 October 1994) 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.

_______________

PROCEDURE

1. The case was referred to the Court by the European Commission

of Human Rights ("the Commission") on 18 September 1995, within the

three-month period laid down by Article 32 para. 1 and Article 47 of

the Convention (art. 32-1, art. 47). It originated in an application

(no. 21335/93) against the Kingdom of Spain lodged with the Commission

under Article 25 (art. 25) by a British national,

Mr Christopher Ian Scott, on 2 September 1992.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby Spain 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 paras. 1 and 3 of the Convention (art. 5-1,

art. 3).

2. In response to the enquiry made in accordance with Rule 33

para. 3 (d) of Rules of Court A, the applicant stated that he wished

to take part in the proceedings and designated the lawyer who would

represent him (Rule 30).

The Government of the United Kingdom, having been informed by

the Registrar of their right to intervene (Article 48 (b) of the

Convention and Rule 33 para. 3 (b)) (art. 48-b), did not indicate any

intention of so doing.

3. The Chamber to be constituted included ex officio

Mr J.M. Morenilla, the elected judge of Spanish nationality (Article 43

of the Convention) (art. 43), and Mr R. Ryssdal, the President of the

Court (Rule 21 para. 4 (b)). On 29 September 1995, in the presence of

the Registrar, the President drew by lot the names of the other

seven members, namely Mr Thór Vilhjálmsson, Mr A. Spielmann,

Mr A.B. Baka, Mr G. Mifsud Bonnici, Mr D. Gotchev, Mr B. Repik and

Mr K. Jungwiert (Article 43 in fine of the Convention and Rule 21

para. 5) (art. 43).

4. As President of the Chamber (Rule 21 para. 6), Mr Ryssdal,

acting through the Registrar, consulted the Agent of the

Spanish Government ("the Government"), the applicant's lawyer and the

Delegate of the Commission on the organisation of the proceedings

(Rules 37 para. 1 and 38). Pursuant to the order made in consequence,

the Registrar received the Government's memorial on 3 April 1996 and

the applicant's memorial on 13 May 1996.

5. In accordance with the President's decision, the hearing took

place in public in the Human Rights Building, Strasbourg, on

28 August 1996. The Court had held a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr J. Borrego Borrego, Head of the Legal Department

for the European Commission and Court of Human

Rights, Ministry of Justice, Agent;

(b) for the Commission

Mr J. Mucha, Delegate;

(c) for the applicant

Mr E. Fitzgerald QC, Counsel,

Mr S. Jakobi, Solicitor.

The Court heard addresses by Mr Mucha, Mr Fitzgerald and

Mr Borrego Borrego.

AS TO THE FACTS

I. Particular circumstances of the case

6. Mr Scott is a British citizen born in 1958. He is currently

detained in Her Majesty's Prison, Leicester.

7. On 5 March 1990 a Finnish national, Ms T., made a statement to

the police in Puerto de la Cruz, Tenerife, Canary Islands, in which she

alleged that the applicant had raped her the night before. According

to Ms T., the applicant had threatened and beaten her, forcing her to

undress and to have sexual intercourse with him. Ms T. underwent a

medical examination and on 9 March 1990 flew back to Finland.

8. In the evening of 5 March 1990, on the strength of Ms T.'s

description, the applicant was located by the police; he attempted to

flee but was finally arrested. He had a false passport and was

suffering from serious alcoholic intoxication requiring

medical attention. On 7 March 1990, assisted by a lawyer and an

interpreter, he made a statement to the police in which he denied the

rape allegations. When the records were consulted, it was found that

the applicant had escaped from Sudbury Prison, West Midlands, on

22 December 1989 and that an international warrant for his arrest for

the murder of his father had been issued against him on 31 January 1990

by a judge at Birmingham Crown Court. In the evening of 7 March 1990

the applicant was brought before the investigating judge

(juez de instrucción).

9. On 8 March 1990, again assisted by a lawyer and an interpreter,

the applicant denied the rape allegations before

investigating judge no. 1 in Puerto de la Cruz. In a decision

(auto de prisión) of the same date the judge held, on the basis of

Articles 503 and 504 of the Code of Criminal Procedure

(Ley de Enjuiciamiento Criminal - see paragraphs 35 and 36 below), that

there was sufficient reason to believe that the applicant was involved

in the commission of an offence that would attract a substantial

prison sentence (see paragraph 33 below). Having regard to the

circumstances of the case and to the existence of an international

arrest warrant (see paragraph 8 above), the investigating judge ordered

Mr Scott's detention pending trial.

10. On 23 March 1990 the relevant judicial authority in extradition

matters, central investigating judge (juez central de instrucción)

no. 4 of the Audiencia Nacional, Madrid, also ordered the applicant's

detention on the basis of the international arrest warrant and of an

undertaking by the United Kingdom authorities to file a request for

extradition (section 8 of the Extradition Act - see paragraph 38

below). In so doing, the central investigating judge referred to

Articles 503 and 504 of the Code of Criminal Procedure

(see paragraphs 35 and 36 below) and took into account the seriousness

of the offence and the prison sentence it would attract under

Spanish law (see paragraph 34 below). A formal request for extradition

was filed on 27 April 1990. It was accompanied by extensive evidence

incriminating the applicant.

11. On 25 June 1990 an international letter of request for judicial

cooperation was sent to the relevant authority in Finland with a view

to obtaining a further statement from the alleged victim of the rape

and additional medical evidence.

12. On 26 November 1990 the public prosecutor (Ministerio Fiscal)

recommended the applicant's extradition. Guarantees were requested

from the United Kingdom authorities to the effect that, should the

extradition be granted and the applicant be convicted in England, the

final sentence would not exceed thirty years' imprisonment (the

maximum term of imprisonment under Spanish legislation). On

2 January 1991 the British Embassy in Madrid wrote to the

Audiencia Nacional that in the applicant's case the sentence actually

served upon conviction for murder was not likely to be more than

ten years. A hearing was subsequently held in the Audiencia Nacional,

in the course of which the applicant denied the murder allegations and

resisted extradition.

13. By a decision (auto) of 22 February 1991 a section of the

Criminal Division of the Audiencia Nacional accepted the guarantees

given by the United Kingdom authorities and ordered that the applicant

should be extradited to stand trial for the murder of his father. This

extradition order was only to be executed after the applicant had

served any outstanding time of the sentence that might eventually be

imposed on him in Spain for the rape offence (see paragraph 41 below).

Furthermore, the time spent by the applicant in prison pending

extradition was to be deducted from the sentence that would eventually

be passed on him by the English courts in the murder case

(see paragraph 42 below).

14. The applicant lodged an appeal (recurso de súplica) with the

full court of the Criminal Division of the Audiencia Nacional. In a

decision of 28 May 1991 the appeal was dismissed. On 28 June 1991 the

Cabinet (Consejo de Ministros) decided not to exercise its discretion

not to execute the extradition order.

15. In the meantime, on 7 March 1991, the investigating judge in

Puerto de la Cruz had decided to extend the applicant's detention

pending trial in the rape case under Article 504 of the

Code of Criminal Procedure (see paragraph 36 below). In so doing, the

investigating judge also took into account the fact that the

applicant's extradition was pending.

16. In May 1991 Mr Scott wrote to the Audiencia Nacional that he

was willing to be extradited in order to get medical treatment in the

United Kingdom, although it would appear that he later abandoned this

idea. On 24 June 1991 the public prosecutor recommended that the

applicant be kept in detention pending his trial for rape unless he

could be temporarily handed over to the United Kingdom authorities.

17. On 6 March 1992 the British Embassy in Madrid wrote to the

Audiencia Nacional indicating that, in the event of the applicant's

being temporarily handed over to the United Kingdom, his re-extradition

to Spain could not be guaranteed.

18. On that same date, that is to say roughly two years after the

applicant had first been detained (see paragraph 9 above), the

investigating judge in Puerto de la Cruz ordered the applicant's

provisional release (libertad provisional) in connection with the

rape case, as required by Article 504 of the Code of Criminal Procedure

(see paragraph 36 below). He was, however, kept in detention under

orders made in the extradition proceedings.

19. On 17 March 1992 the Audiencia Nacional, taking 23 March 1990

as the date of the beginning of the applicant's detention for the

extradition proceedings (see paragraph 10 above), decided to extend his

detention under Article 504 of the Code of Criminal Procedure and

section 10 (3) of the Extradition Act (see paragraphs 36, 37 and 40

below) for a period not exceeding two years, that is until

23 March 1994. The Audiencia Nacional had previously heard the

public prosecutor and the applicant, the former having submitted that,

given the impossibility of temporarily handing the applicant over to

the United Kingdom authorities, his extradition should not take place

"before he ha[d] discharged his criminal liabilities in Spain", with

reference to the rape case.

20. The applicant lodged an appeal (recurso de súplica) against

this decision but on 18 June 1992 a full court of the Criminal Division

of the Audiencia Nacional dismissed the appeal on the ground that he

had been detained in the extradition case on 23 March 1990,

independently of his earlier detention for a different matter, and that

the risk of his absconding was considerable. In his submissions the

public prosecutor had again referred to the case pending in

Puerto de la Cruz.

21. Another application for release by the applicant on

7 September 1992 was rejected in similar terms by the

Audiencia Nacional on 5 October 1992. Although the application had

been addressed to the Audiencia Nacional, the applicant made ample

reference to the proceedings before the Puerto de la Cruz investigating

judge.

22. On 6 December 1992, following a further application by

Mr Scott, the Audiencia Nacional requested the investigating judge in

Puerto de la Cruz to supply information as to whether the applicant

could be extradited. The Court's case file does not contain any reply.

23. The applicant lodged an amparo appeal with the

Constitutional Court (see paragraph 32 below) against the

Audiencia Nacional's decisions of 17 March 1992 and 18 June 1992 on his

detention pending extradition. The appeal was rejected after summary

proceedings in a decision (auto) of 6 May 1993. On the merits the

Constitutional Court stated that the applicant had been detained in the

extradition proceedings on 23 March 1990, so that the

Audiencia Nacional's decision of 17 March 1992 to extend detention for

two more years as of that date was legally correct as the earlier

period spent in prison by the applicant was unrelated to the new

detention.

24. Meanwhile, in a decision (auto de procesamiento) of

2 February 1993, the investigating judge in Puerto de la Cruz had

formally charged the applicant with, inter alia, rape and forgery of

documents.

25. On 8 February 1993 the investigating judge renewed his request

to have a further statement by the complainant through the channels of

international judicial cooperation (see paragraph 11 above). The

requested statement and two medical certificates, all in Finnish, were

received in Puerto de la Cruz on 29 April 1993. A Spanish translation

did not become available until two months later. The statement - which

was taken at a court hearing in Tuusula, Finland, on 14 December 1992 -

confirmed Ms T.'s original allegations (see paragraph 7 above). The

medical certificates showed that Ms T. had received prolonged

psychiatric treatment after her return from Tenerife.

On 25 August 1993 the applicant's detention was again ordered

in the rape case. The applicant was subsequently committed for trial.

26. On 26 November 1993 the public prosecutor made his

pre-trial submissions (conclusiones provisionales). On the basis of

the medical evidence available, he sought a prison sentence of

sixteen years in respect of the rape offence and a further

prison sentence of four months and a fine of 100,000 pesetas for the

offence of forgery of documents.

27. A hearing was held during which Ms T. and court-appointed

medical experts gave evidence.

In a judgment of 21 March 1994 the Audiencia Provincial of

Santa Cruz de Tenerife acquitted the applicant on the rape charge on

the ground that the only evidence incriminating him was Ms T.'s

statements, which contained many inconsistencies. The

Audiencia Provincial accepted the opinion of the experts present at the

hearing that the medical evidence did not sustain the allegation of

forcible sexual intercourse.

With respect to the forgery offence the applicant was convicted

and sentenced as charged.

28. On 16 March 1994, as the applicant's detention was approaching

the statutory maximum of four years (see paragraph 36 below), the

Audiencia Nacional had issued an order releasing the applicant from

detention in the extradition proceedings. However, on learning of the

applicant's acquittal in the rape trial and of his imminent release,

the Audiencia Nacional immediately ordered the applicant's continued

detention pending extradition.

29. On 27 March 1994 the applicant was handed over to the

United Kingdom authorities, pursuant to the international

arrest warrant and the Audiencia Nacional's decision of

22 February 1991 allowing extradition (see paragraph 13 above).

30. The applicant had spent a total of two years, six months and

twenty-nine days under the different orders for detention pending trial

on the rape charge and exactly four years in connection with the

extradition proceedings.

31. On 9 November 1995, following a trial at

Birmingham Crown Court, Mr Scott was convicted of the murder of his

father. He was sentenced to life imprisonment. The trial judge

recommended a "tariff period" (see paragraph 43 below) of twelve years.

II. Relevant domestic law

A. The Constitution

32. Article 17 of the Constitution guarantees the right to liberty

and security of person and sets out the conditions under which a

person's liberty may be restricted. By paragraph 4 of this provision,

a habeas corpus procedure shall be provided for in a statute which

shall also determine the maximum duration of detention pending trial.

Regarded as fundamental, Article 17 rights may be the subject

of an individual appeal to the Constitutional Court

(recurso de amparo).

B. The Criminal Code

33. Under Article 429 of the Criminal Code in force at the material

time, rape was punishable with a term of imprisonment ranging from

twelve years and one day to twenty years (reclusión menor).

34. Under Article 405 of the Criminal Code, killing one's father

or mother (parricidio) was punishable with a term of imprisonment

ranging from twenty years and one day to thirty years

(reclusión mayor).

C. The Code of Criminal Procedure

35. Under Article 503 of the Code of Criminal Procedure,

"The following conditions must be satisfied before

pre-trial detention can be ordered:

1. It must have been established that an act which may

constitute an offence [delito] has been committed.

2. The offence must be punishable by more than six years'

imprisonment [prisión menor] or, if the term of imprisonment

is shorter, the judge must consider it necessary to remand the

accused in custody in the light of his criminal record, the

circumstances of the offence, the prejudice to public order it

has caused or the frequency with which similar acts have been

committed ...

3. There must be sufficient reasons for considering the

person to be remanded in custody criminally responsible for the

offence."

36. By Article 504 of the Code of Criminal Procedure, detention

pending trial shall not exceed one year where an offence is punishable

with a term of imprisonment ranging from six months and one day to

six years (prisión menor) and shall not exceed two years if the

applicable sentence is heavier.

If, however, the case cannot be tried within that period and

there is a risk that the accused may evade justice, Article 504 of the

Code of Criminal Procedure provides that detention pending trial may

be prolonged up to two and four years respectively. A reasoned

decision (auto) to this effect may only be issued after the competent

court has heard the accused and the public prosecutor.

37. Under Article 528 para. 1 of the Code of Criminal Procedure,

detention pending trial may last for only as long as the original

reasons remain valid.

D. Rules on detention pending extradition

38. Extradition proceedings come within the jurisdiction of the

Audiencia Nacional in Madrid irrespective of where the requested person

has been detained (section 65 (4) of the Judicature Act -

Ley Orgánica del Poder Judicial). In such cases preliminary

proceedings fall to the relevant central investigating judge

(juez central de instrucción) attached to the Audiencia Nacional,

likewise in Madrid (section 88 of the Judicature Act and section 8 (2)

of the Extradition Act 1985).

39. Under section 8 of the Extradition Act, the detention of a

person with a view to his or her extradition may in certain

circumstances be sought by a State even before a formal request for

extradition is lodged where the requesting State undertakes that the

said request will be made within the following forty days. The

detainee must be brought before the relevant central

investigating judge within twenty-four hours of his or her arrest.

40. Under section 10 (3) of the Extradition Act, "while extradition

proceedings are pending, the maximum term of detention of the requested

person and his or her rights as a detainee shall be determined, where

not laid down in this Act, according to the relevant provisions of the

Code of Criminal Procedure".

41. By section 19 (2) of the Extradition Act, "if the requested

person is under investigation or has been convicted by a Spanish court

... his or her delivery may be deferred until his or her

criminal liabilities in Spain have been discharged or he or she can be

handed over temporarily or finally in accordance with such conditions

as may be agreed with the requesting State".

Article 18 of the Extradition Treaty between the United Kingdom

and the Kingdom of Spain of 22 July 1985 contains a similar provision.

The Treaty came into force on 1 July 1986.

42. Section 18 (1) (2) of the Extradition Act requires, inter alia,

that extradition be made subject to the time spent in detention pending

extradition by the requested person being deducted from the sentence

that would eventually be passed on him or her by the requesting State.

E. Life sentences in England

43. Under English law murder carries a mandatory sentence of

life imprisonment (Murder (Abolition of Death Penalty) Act 1965). A

person convicted of manslaughter may be sentenced to life imprisonment

at the discretion of the trial judge. In both cases release on licence

can only be granted after a minimum period deemed necessary to satisfy

the requirements of retribution and deterrence ("the tariff period")

has been served.

PROCEEDINGS BEFORE THE COMMISSION

44. Mr Scott applied to the Commission on 2 September 1992. He

relied on Article 5 paras. 1 (c) and 3 of the Convention (art. 5-1-c,

art. 5-3), complaining that he had been unlawfully detained for an

unreasonably long period of time. He further complained of breaches

of Articles 5 para. 4, 6, 8 and 13 of the Convention (art. 5-4,

art. 6, art. 8, art. 13).

45. On 22 February 1995 the Commission declared the application

(no. 21335/93) admissible as far as the complaints under Article 5

paras. 1 (c) and 3 (art. 5-1-c, art. 5-3) were concerned. In its

report of 4 July 1995 (Article 31) (art. 31), it expressed the opinion

that there had been no violation of Article 5 para. 1 (c) (art. 5-1-c)

(ten votes to three) and that there had been a violation of Article 5

para. 3 of the Convention (art. 5-3) (twelve votes to one). The full

text of the Commission's opinion and of the three separate opinions

contained in the report is reproduced as an annex to this judgment (1).

_______________

Note by the Registrar

1. For practical reasons this annex will appear only with the printed

version of the judgment (in Reports of Judgments and

Decisions 1996-VI), but a copy of the Commission's report is obtainable

from the registry.

_______________

FINAL SUBMISSIONS TO THE COURT

46. At the hearing, the applicant invited the Court to declare that

there had been a violation of Article 5 paras. 1 and 3 (art. 5-1,

art. 5-3).

The Government, for their part, submitted that, in the

circumstances of the case, the length of the applicant's detention

could not be considered unreasonable.

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 PARA. 1 OF THE CONVENTION

(art. 5-1)

47. Mr Scott complained of the unlawfulness of his detention under

Article 5 para. 1 of the Convention (art. 5-1), which, in so far as

relevant, reads:

"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 effected

for the purpose of bringing him before the competent

legal authority on reasonable suspicion of having committed an

offence or when it is reasonably considered necessary to

prevent his committing an offence or fleeing after having done

so;

...

(f) the lawful arrest or detention of a person ...

against whom action is being taken with a view to ...

extradition."

A. Preliminary observations

48. Before the Court, Mr Scott complained that the facts relating

to his detention in Spain between March 1990 and March 1994 disclosed

a breach of Article 5 para. 1 (art. 5-1) in relation to both his

detention on remand and his detention with a view to extradition, and

a further breach of paragraph 3 of the same provision (art. 5-3) with

regard to the length of his detention on remand.

The applicant submitted that as from 28 June 1991 - date when

the Spanish Cabinet authorised his extradition to the United Kingdom

(see paragraph 14 above) - the only justification for his continued

detention was his alleged involvement in the rape case.

49. The Commission considered the lawfulness of the applicant's

detention under Article 5 para. 1 (c) (art. 5-1-c). As to its length,

the Commission only examined the applicant's detention on remand.

50. The Government submitted that different considerations applied

to the two different sets of proceedings Mr Scott was involved in:

suspicion of rape and request for extradition. In both cases his

deprivation of liberty had been lawful. The long period of detention

that followed was also justified; in compliance with the appropriate

legislation (see paragraph 41 above), the Spanish authorities were

entitled to defer the execution of the order for the applicant's

extradition as long as his trial in the rape case was still pending.

In view of the wording of Article 5 para. 3 (art. 5-3)

(see paragraph 67 below), however, the Court was only entitled to

examine the period spent by the applicant in detention pursuant to

orders made in the rape proceedings.

51. The Court notes that the applicant was first arrested on

5 March 1990 under suspicion of having raped a Finnish woman

(see paragraph 8 above). Subsequently, central

investigating judge no. 4 ordered that the applicant be kept in custody

pending the resolution of a request for extradition (see paragraph 10

above). On 22 February 1991 the Audiencia Nacional ordered the

applicant's extradition, as requested by the

United Kingdom authorities. However, this extradition order was only

to be executed after the determination of the rape case

(see paragraph 13 above).

The Court further notes that, after the applicant's release had

been ordered in relation to the rape case (see paragraph 18 above) and

after an unsuccessful attempt to hand over the applicant to the

British authorities on a temporary basis, the Audiencia Nacional chose

to extend the applicant's detention pending extradition

(see paragraph 19 above). It is common ground that the basis for this

decision, as well as for the subsequent orders of 5 October and

6 December 1992 (see paragraphs 21 and 22 above), was that the

investigation into the rape allegations was still pending.

Furthermore, the sole argument used by the public prosecutor in

recommending Mr Scott's continued detention was the existence of that

investigation (see paragraphs 16, 19 and 20 above).

52. From the foregoing the Court concludes that for all but the few

days that elapsed between the applicant's acquittal in the rape case

and his delivery to the United Kingdom authorities, the investigation

into the rape charges provided at all times, in whole or in part,

justification for the applicant's ongoing detention. This was

unquestionably the case in the periods comprised between 5 March 1990

and 6 March 1992 and again between 25 August 1993 and 21 March 1994,

where detention had been ordered in the rape proceedings. However,

even during the period going from 6 March 1992 to 25 August 1993, where

technically the applicant was being detained exclusively on the

strength of orders made in the extradition proceedings, the only reason

for extending his detention was that the investigation into the

rape allegations was still incomplete. In other words, the

Spanish extradition authorities, who had ordered the applicant's

detention on the basis of a request for extradition - which was as such

covered by Article 5 para. 1 (f) (art. 5-1-f) - decided to prolong his

detention beyond 6 March 1992 - where provisional release had been

granted in respect of the rape proceedings - for reasons

("reasonable suspicion of having committed an offence" and risk of

absconding) that are more appropriately examined in the context of

Article 5 para. 1 (c) (art. 5-1-c).

In these circumstances and in the exercise of its powers to

consider the legal basis of the applicant's detention "autonomously",

the Court will approach the period between 5 March 1990 and

21 March 1994 as falling within the ambit of Article 5 para. 1 (c)

(art. 5-1-c). This is consonant with the aim and purpose of

Article 5 (art. 5), which are to protect everyone from arbitrary

deprivations of liberty (see, mutatis mutandis, the Van der Leer

v. the Netherlands judgment of 21 February 1990, Series A no. 170-A,

p. 13, para. 27).

B. The lawfulness of the applicant's continued detention

53. Mr Scott did not contest the lawfulness of his

original detention either with regard to the rape investigation or the

extradition proceedings. He contested, however, the legal basis of his

continuing detention pending extradition after he had been granted

conditional release in the rape case on 6 March 1992 (see paragraph 18

above).

The applicant further complained of the unlawfulness of the

order for his continued detention dated 25 August 1993, made after the

international letter rogatory had been complied with (see paragraph 25

above). In his submission, the evidence thus obtained did not

strengthen significantly the prosecution case, making the detention

order arbitrary under Article 5 para. 1 (c) (art. 5-1-c).

54. The Commission considered that the applicant's detention in

connection with the criminal proceedings was ordered in accordance with

a procedure prescribed by law and was lawful within the meaning of

Article 5 para. 1 (c) (art. 5-1-c).

55. For the Government also the applicant's detention was decided

according to law and by the competent judicial authority. As to the

applicant's first complaint, the Government pointed out that in

compliance with the appropriate legislation (see paragraph 41 above),

the Spanish authorities were entitled to defer the execution of the

extradition order as long as trial in the rape case remained pending.

56. The Court must therefore examine under this head whether the

applicant's detention between 6 March 1992 (see paragraph 18 above) and

25 August 1993 (see paragraph 25 above) as well as the order for his

continued detention made on that last date were "in accordance with a

procedure prescribed by law" and "lawful" within the meaning of

Article 5 para. 1 (art. 5-1). The Convention here essentially refers

back to national law and states the obligation to conform to the

substantive and procedural rules thereof; but it requires in addition

that any deprivation of liberty should be consistent with the purpose

of Article 5 (art. 5), namely to protect individuals from arbitrariness

(see, as a recent authority, the Amuur v. France judgment of

25 June 1996, Reports of Judgments and Decisions 1996-III, p. 857,

para. 50).

57. It is in the first place for the national authorities, notably

the courts, to interpret and apply domestic law. However, since under

Article 5 para. 1 (art. 5-1) failure to comply with domestic law

entails a breach of the Convention, it follows that the Court can and

should exercise a certain power to review whether this law has been

complied with (see the Bouamar v. Belgium judgment of 29 February 1988,

Series A no. 129, p. 21, para. 49).

1. The applicant's detention between 6 March 1992 and

25 August 1993

58. Mr Scott complained that at least between 6 March 1992 and

25 August 1993 he was technically kept in detention pending extradition

while, in reality, the justification for his detention was the ongoing

investigation into the rape allegations. Once he was released on bail

on the rape charge, there was no substantive justification for his

continued detention under either sub-paragraphs (c) or (f) of Article 5

para. 1 (art. 5-1-c, art. 5-1-f). He should therefore either have been

released or extradited immediately.

59. The Court observes in limine that, although the applicant's

complaint concerning the alleged unlawfulness of his detention pending

extradition was not specifically mentioned in the Commission's decision

on admissibility (see paragraph 45 above), it is apparent from the

facts of the case as established by the Commission but also from the

Commission's reasoning in both its decision on admissibility and its

report (see paragraphs 43 and 44 of the report) that this question

forms part of the scope of the case now before the Court. In any

event, the Court has jurisdiction to examine it of its own motion

(see, mutatis mutandis, the Kamasinski v. Austria judgment of

19 December 1989, Series A no. 168, p. 30, para. 59).

60. As stated above (see paragraph 52), the Court agrees with the

applicant that during the referred period the material justification

for his continued detention was his alleged involvement in the

rape case. The Court is satisfied that, in deciding the applicant's

continued detention on that basis, the central judicial authorities -

central investigating judge no. 4 and Audiencia Nacional - followed a

procedure that was in conformity with domestic legislation. It has not

been contended by the applicant that the legislation in question -

essentially the relevant provisions of the Extradition Act 1985 and the

Extradition Treaty between the United Kingdom and the Kingdom of Spain

and also the provisions concerning detention pending trial contained

in the Code of Criminal Procedure - is in itself contrary to the

Convention. The national authorities were entitled under that

legislation to defer the surrender of a person requested for

extradition if a criminal investigation was in progress

(see paragraph 41 above). Under section 10 (3) of the Extradition Act

(see paragraph 40 above) they were further entitled to keep the

applicant in detention by applying the same principles as those

applicable to pre-trial detainees.

61. Issues of lawfulness which may otherwise have arisen from the

protracted length of the applicant's detention pending extradition

(see the Kolompar v. Belgium judgment of 24 September 1992, Series A

no. 235-C, p. 56, para. 40, and the Quinn v. France judgment of

22 March 1995, Series A no. 311, pp. 19-20, para. 48), are in this case

indistinguishable from those which the Court will address under

Article 5 para. 3 (art. 5-3) and do not therefore call for a separate

examination.

62. Against this background, it cannot be said that the applicant's

detention during the period concerned was unlawful for the purposes of

Article 5 para. 1 (art. 5-1).

2. The detention order of 25 August 1993

63. The conformity with domestic legislation of the procedure

followed by the judicial authorities in charge of the rape case, in

particular the Puerto de la Cruz investigating judge, has not been

disputed. The Court, for its part, does not discern, either in the

wording of the applicable legislation or in its application, any

contradiction with the Convention. It concludes that in this case the

applicant's deprivation of liberty on allegations of rape was "in

accordance with a procedure prescribed by law".

64. It remains to be examined whether the new detention order in

connection with the rape charges on 25 August 1993 also conformed with

the substantive rules of domestic law and was "lawful" within the

meaning of Article 5 para. 1 (c) of the Convention (art. 5-1-c).

65. The Court notes that Mr Scott was first arrested following a

complaint by Ms T. that the applicant had threatened and beaten her,

forcing her to undress and to have sexual intercourse with him; it

further notes that when located by the police, the applicant had

attempted to flee (see paragraphs 7 and 8 above). Moreover, on

29 April 1993 further evidence was received, including a fresh

statement by the complainant and medical certificates to the effect

that upon her return from Tenerife Ms T. had undergone prolonged

psychiatric treatment (see paragraph 25 above). In view of the

foregoing and having particular regard to the applicant's

criminal record (see paragraph 8 above), which the national authorities

were entitled to consider by virtue of Article 503 para. 2 of the

Code of Criminal Procedure (see paragraph 35 above), the Court is

satisfied that the new order for the applicant's detention on

25 August 1993 was made in compliance with the substantive

domestic legislation applicable and was not arbitrary for the purposes

of Article 5 para. 1 (c) (art. 5-1-c).

3. Conclusion

66. The Court concludes that, in the present case, there has been

no violation of Article 5 para. 1 of the Convention (art. 5-1).

II. ALLEGED VIOLATION OF ARTICLE 5 PARA. 3 OF THE CONVENTION

(art. 5-3)

67. The applicant further complained that the unreasonable length

of his detention was in breach of Article 5 para. 3 of the Convention

(art. 5-3), which reads as follows:

"Everyone arrested or detained in accordance with the

provisions of paragraph 1 (c) of this Article (art. 5-1-c) ...

shall be entitled to trial within a reasonable time or to

release pending trial. Release may be conditioned by

guarantees to appear for trial."

A. The Government's preliminary objection

68. The Government pleaded the applicant's failure to exhaust the

domestic remedies available to him. They argued that not a

single application for release had been addressed to the authorities

with responsibility over the rape case, that is Puerto de la Cruz

investigating judge no. 1 and the Audiencia Provincial of

Santa Cruz de Tenerife.

69. The applicant submitted, inter alia, that, even if the judge

in Tenerife had granted bail on the criminal charges, he would have

remained subject to detention under the extradition proceedings.

70. The Court notes that the applicant made at least three

applications for provisional release (see paragraphs 20, 21 and 22

above) and that, in the last occasion recorded in the file, the matter

was brought all the way to the Constitutional Court. Admittedly, these

applications were addressed to the Audiencia Nacional, which only had

authority to decide on matters concerning the request for extradition.

However, having regard to the reference to the rape proceedings made

by Mr Scott in at least one of his applications for release

(see paragraph 21 above), and, above all, to the autonomous approach

to the applicant's detention adopted by the Court (see paragraph 52

above), the Court considers that the applicant did exhaust the

domestic remedies available to him. The central judicial authorities,

which chose to make the resolution of the rape proceedings a

prerequisite for executing the applicant's extradition, kept the

applicant in detention under their direct orders from 23 March 1990 to

16 March 1994 (see paragraphs 10 and 28 above). In these

circumstances, it was reasonable to consider that they had the last say

in matters relating to his detention, no further purpose being served

by applying to the Tenerife authorities.

The Government's preliminary objection falls therefore to be

dismissed.

B. Merits of the complaint

71. The applicant complained of the protracted length of his

pre-trial detention, which, in his submission, lasted from

5 March 1990, the day of his arrest, to 27 March 1994, when he was

finally handed over to the United Kingdom authorities.

72. The Commission, while finding that Article 5 para. 3 (art. 5-1)

only applied to the applicant's detention in connection with the

rape case, considered that the fact that the applicant was deprived of

his liberty during a very long consecutive period imposed on the

Spanish authorities a special duty of diligence to bring his detention

to an end without further delay.

73. In the Government's submission, the applicant's

pre-trial detention only covered two periods of his overall detention;

namely, one going from 5 March 1990 to 6 March 1992 and another one

from 25 August 1993 to 21 March 1994, a total of roughly two years and

seven months. Only during these periods was the applicant detained

under orders made in the rape case and, therefore, only these periods

strictly fell within the exception in Article 5 para. 1 (c)

(art. 5-1-c) and can thus be taken into consideration for the purposes

of Article 5 para. 3 (art. 5-3).

1. General principles

74. As established in the Court's case-law, whether a period of

pre-trial detention can be considered "reasonable" must be assessed in

each case according to its special features (see, among other

authorities, the Wemhoff v. Germany judgment of 27 June 1968, Series A

no. 7, p. 24, para. 10).

Continued detention can be justified in a given case only if

there are specific indications of a genuine requirement of

public interest which, notwithstanding the presumption of innocence,

outweighs the rule of respect for individual liberty. It falls in the

first place to the national judicial authorities to examine all the

circumstances arguing for or against the existence of such a

requirement and to set them out in their decisions on the applications

for release. It is essentially on the basis of the reasons given in

these decisions and of the facts stated by the applicant in his appeals

that the Court is called upon to decide whether or not there has been

a violation of Article 5 para. 3 (art. 5-3).

The persistence of reasonable suspicion that the person

arrested has committed an offence is a condition sine qua non for the

lawfulness of the continued detention, but after a certain lapse of

time it no longer suffices: the Court must then establish whether the

other grounds given by the judicial authorities continued to justify

the deprivation of liberty. Where such grounds were "relevant" and

"sufficient", the Court must also ascertain whether the competent

national authorities displayed "special diligence" in the conduct of

the proceedings. The complexity and special characteristics of the

investigation are factors to be considered in this respect (see, among

many other authorities, the Letellier v. France judgment of

26 June 1991, Series A no. 207, p. 18, para. 35, and the Van der Tang

v. Spain judgment of 13 July 1995, Series A no. 321, pp. 17-18,

para. 55).

2. Period to be taken into consideration

75. For the reasons set out above (see paragraphs 51 and 52 above),

the Court is satisfied that the ongoing investigation into the

rape case provided the ultimate justification for the applicant's

protracted period of detention. Not only did the authorities dealing

with extradition matters - central investigating judge no. 4 and the

Criminal Division of the Audiencia Nacional - constantly make reference

to the rape file in extending the applicant's detention pending

extradition, they even requested the investigating judge in

Puerto de la Cruz to supply information as to whether the applicant

could be extradited (see paragraph 22 above). In so doing, the

Spanish courts acted within powers granted to them by the legislation

in force to defer the extradition of a person under investigation until

his criminal liabilities in Spain had been discharged

(see paragraph 41 above).

The Court will therefore consider under the present head the

applicant's detention from the day of his arrest to the day when the

Audiencia Provincial of Santa Cruz de Tenerife acquitted him of the

rape charges; a total of four years and sixteen days. The few

remaining days up to the applicant's delivery to the

United Kingdom authorities on 27 March 1994 were completely unrelated

to the rape proceedings and fall therefore outside the scope of

Article 5 para. 3 (art. 5-3).

3. Grounds for continued detention

76. The applicant accepted that initially the suspicion of an

offence of rape could justify his detention. He concentrated the main

thrust of his arguments on the alleged lack of special diligence on the

part of the Spanish authorities.

77. For the Government, the national authorities, in prolonging the

applicant's detention, relied on the seriousness of the offence

allegedly committed by him (rape) as well as on the risk of his

absconding. In support of the latter ground, they pointed to the fact

that the applicant had already escaped from a British prison; that he

had forged a passport; and had attempted to flee when located by the

police (see paragraph 8 above).

78. The Court accepts that the alleged offences were of a serious

nature. The fact that the public prosecutor requested that the

applicant be sentenced to a period of sixteen years' imprisonment

(see paragraph 26 above) supports this conclusion. However, the

existence of a strong suspicion of the involvement of a person in

serious offences, while constituting a relevant factor, cannot alone

justify a long period of pre-trial detention (see the Tomasi v. France

judgment of 27 August 1992, Series A no. 241-A, p. 35, para. 89).

79. As to the danger of Mr Scott's absconding, the Court notes that

this ground was expressly mentioned in only one of the decisions

rejecting Mr Scott's applications for release (see paragraph 20 above).

While it would certainly have been desirable for the Spanish courts to

have given more detailed reasoning as to the relevance of that ground

in the particular circumstances of the case, the Court is nonetheless

satisfied that an evident and significant risk of the applicant's

absconding persisted throughout his entire period of detention. This

has, furthermore, not been contested by the applicant.

4. Conduct of the proceedings

80. According to the applicant, his case was a straightforward one,

requiring only that two witnesses be heard and certain medical evidence

be obtained. It should have been tried within months, not years.

81. The Commission was also of the view that the case against the

applicant did not appear to have been of great complexity. It found

that it had not been established that his detention was in conformity

with the "reasonable time" requirement in Article 5 para. 3 of the

Convention (art. 5-3).

82. The Government referred to the complexities associated with the

implementation of the international letter rogatory (see paragraph 11

above) as justifying the delay in bringing the applicant to trial. In

that context, they pointed out that the alleged victim's inability to

make a statement in a Finnish court due to her mental state further

delayed the proceedings by nearly one year.

83. The Court cannot subscribe to the Government's contention that

the various difficulties associated with the implementation of the

international letter of judicial cooperation (translation of documents,

transmission by diplomatic channels, repeated summons of the

complainant) can justify the very long period of time the applicant

spent in detention. Like the Commission, the Court considers that the

case was not particularly complex. Indeed, it is apparent from the

case file before it that, after the investigation had been terminated,

the evidence against the applicant only included two statements by the

complainant, two statements by the accused and four medical

certificates. Furthermore, there is nothing to suggest that the length

of the proceedings can be attributable in whole or in part to the

applicant's conduct. In these circumstances the Court cannot but

conclude that the duty of "special diligence" enshrined in Article 5

para. 3 (art. 5-3) has not been observed.

5. Conclusion

84. In conclusion, there has been a violation of Article 5

para. 3 of the Convention (art. 5-3).

III. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)

85. Article 50 of the Convention (art. 50) provides as follows:

"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."

The applicant's claims under this provision (art. 50) were for

compensation for damage and reimbursement of legal costs and expenses

referable to the proceedings before the Convention institutions.

A. Damage

86. The applicant sought compensation at a rate of £30,000 per

annum for what he considered had been an unnecessary and unjustified

period of detention. He left it to the Court's discretion to decide

whether the appropriate period was the whole four years spent in

detention or only after March 1992, that is when provisional release

in the rape case was ordered.

87. The Court notes that the applicant, following his extradition

to the United Kingdom in March 1994, stood trial for the murder of his

father. He was found guilty and was sentenced to life imprisonment

(see paragraph 31 above). The trial judge recommended a minimum period

of imprisonment of twelve years (ibid.). The Court further notes that

the applicant's extradition was granted on condition that the time

spent in prison pending extradition be deducted from the sentence that

would eventually be passed on him by the English courts in the

murder case (see paragraph 13 above). No evidence has been adduced

before the Court to suggest that the United Kingdom authorities will

not honour that condition.

In these circumstances, the Court considers that the finding

of a violation constitutes sufficient just satisfaction for the

purposes of Article 50 (art. 50) as to any damage sustained.

B. Costs and expenses

88. For the legal costs and expenses in bringing his case before

the Convention institutions, the applicant claimed the sum of

£31,497.50 inclusive of value-added tax.

89. The Government found the sum claimed excessive.

90. In the light of the criteria emerging from its case-law, the

Court holds that the applicant should be awarded the amount of £18,000

less 20,700 French francs already paid by way of legal aid in respect

of fees and travel and subsistence expenses.

C. Default interest

91. In the circumstances of the present case, the Court considers

it appropriate to apply the statutory rate in force in the

United Kingdom on the date of adoption of the present judgment, namely

8% per annum.

FOR THESE REASONS, THE COURT

1. Holds by eight votes to one that there has been no violation

of Article 5 para. 1 of the Convention (art. 5-1);

2. Dismisses unanimously the Government's preliminary objection

concerning the non-exhaustion of domestic remedies as regards

the complaint under Article 5 para. 3 of the Convention

(art. 5-3);

3. Holds unanimously that there has been a violation of Article 5

para. 3 of the Convention (art. 5-3);

4. Holds unanimously that the finding of a violation constitutes

adequate satisfaction for any damage suffered by the applicant;

5. Holds unanimously:

(a) that the respondent State is to pay to the applicant,

within three months, in respect of costs and expenses,

£18,000 (eighteen thousand pounds sterling) less

20,700 (twenty thousand, seven hundred) French francs to be

converted into pounds sterling at the rate applicable on the

date of delivery of the present judgment;

(b) that simple interest at an annual rate of 8% shall be

payable from the expiry of the above-mentioned three months

until settlement;

6. 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 18 December 1996.

Signed: Rolv RYSSDAL

President

Signed: Herbert PETZOLD

Registrar

In accordance with Article 51 para. 2 of the Convention

(art. 51-2) and Rule 53 para. 2 of Rules of Court A, the partly

dissenting opinion of Mr Repik is annexed to this judgment.

Initialled: R.R.

Initialled: H.P.

PARTLY DISSENTING OPINION OF JUDGE REPIK

(Translation)

I voted with the majority to reject the preliminary objection

that domestic remedies were not exhausted and to find a violation of

Article 5 para. 3 of the Convention (art. 5-3), but on the latter point

for reasons which were different in part. On the other hand, I

disagree with the majority's finding that there was no violation of

Article 5 para. 1 of the Convention (art. 5-1).

The reasons for my partly separate and partly dissenting

opinion are as follows.

I. General observations

According to the majority of the Court, the whole period of the

applicant's detention fell within the ambit of Article 5 para. 1 (c)

of the Convention (art. 5-1-c), and accordingly also within that of

Article 5 para. 3 (art. 5-3) (see paragraphs 52 and 74 of the

judgment), with the exception of the short period from 21 to

27 March 1994, which had no connection at all with the

Spanish proceedings on the rape charges (see paragraph 75 of the

judgment).

The Court based this amalgamation of the two separate grounds

for the applicant's detention on its power to consider the legal basis

of detention "autonomously" (see paragraph 52 of the judgment) having

regard to the fact that "the investigation into the rape charges

provided at all times, in whole or in part, justification for the

applicant's ongoing detention" and that "even during the period going

from 6 March 1992 to 25 August 1993, where technically the applicant

was being detained exclusively on the strength of orders made in the

extradition proceedings, the only reason for extending his detention

was that the investigation into the rape allegations was still

incomplete" (see paragraph 52 of the judgment).

I regret that I am unable to follow the Court in this approach;

to find that detention with a view to extradition under the

Spanish legal rules governing detention fell within the ambit of

Article 5 para. 1 (c) of the Convention (art. 5-1-c) seems to me to be

unfounded. It is the statutory conditions for detention, both

substantive and procedural, as laid down by domestic legislation, that

should be taken into account in order to decide what was lawful under

the Convention, not the reasons given by the domestic courts in their

decisions to justify extending detention with a view to extradition.

The Court's task is precisely to determine whether the latter reasons

suggest that detention with a view to extradition pursued an aim other

than that for which it was prescribed by law (see the Quinn v. France

judgment of 22 March 1995, Series A no. 311, p. 19, para. 47).

The applicant's detention during the period under consideration

was based - in part concurrently and in part consecutively - on

two different legal grounds and two different types of court order,

between which the Convention also draws a clear distinction. Detention

on remand (Article 503 of the Spanish Code of Criminal Procedure) -

apart from the other specific substantive conditions relating thereto -

may be ordered only in the context of domestic criminal proceedings.

On the other hand, detention with a view to extradition may be ordered

only in the context of extradition proceedings. These requirements are

also laid down by Article 5 para. 1 (c) of the Convention (art. 5-1-c),

as regards the former, and Article 5 para. 1 (f) (art. 5-1-f) as

regards the latter. In addition, different domestic courts have

jurisdiction to determine all questions concerning these two different

grounds of detention. The fact that the two sets of proceedings were

being conducted concurrently does not make it right for the Court to

treat these two grounds of detention as identical for the purposes of

the Convention and does not dispense it from examining them separately,

which does not mean that when assessing the length of detention it

cannot take into account the total period of imprisonment (see, for

example, mutatis mutandis, the Yagci and Sargin v. Turkey judgment of

8 June 1995, Series A no. 319-A, p. 18, para. 49).

The majority's approach leads to the following unacceptable

consequence: if the whole period of detention from 5 March 1990 to

21 March 1994 was based solely on what was needed in connection with

the domestic proceedings on the rape charge and thus fell within the

ambit of Article 5 para. 1 (c) of the Convention (art. 5-1-c), how is

it possible to justify the fact that this detention exceeded the

maximum statutory limit under Spanish law, namely four years

(Article 504 of the Spanish Code of Criminal Procedure)? From

6 March 1994 onwards the applicant's detention should be considered

unlawful.

It is therefore necessary to consider the two grounds of

detention separately.

II. Detention on remand

I agree with the majority that this detention was lawful and

that, throughout its length, there were plausible reasons to suspect

that the applicant had committed a serious offence and that there was

an obvious risk of his absconding (see paragraphs 78 and 79 of the

judgment).

Taking a different approach from the majority, I consider that

the period of detention which fell within the ambit of Article 5

para. 3 (art. 5-3) ran only from 5 March 1990 to 6 March 1992 and from

25 August 1993 to 21 March 1994, that is to say a total of two years

and nearly seven months. However, although the period in question was

considerably shorter than the period considered by the majority, their

conclusions on the question whether the detention exceeded a reasonable

time remain valid, even for this shorter period. There were very

lengthy periods of inactivity on the part of the

Puerto de la Cruz investigating judge not only during the applicant's

detention on remand but also during the period when he was technically

no longer being held on remand (6 March 1992 - 25 August 1993), and the

delays during this last period directly influenced the fact that his

detention continued after 25 August 1993.

III. Detention with a view to extradition

For detention falling within the ambit of two (or more)

sub-paragraphs of Article 5 para. 1 (art. 5-1) to be justified, it is

sufficient for it to be justified under only one of the provisions

concerned. Having regard to the above conclusions concerning detention

on remand ordered in connection with the domestic proceedings on the

rape charge, the only period which has still to be considered under

Article 5 para. 1 (f) (art. 5-1-f) is that part of the applicant's

detention ordered solely with a view to extradition, that is the period

from 6 March 1992 to 25 August 1993, since the period from 21 to

27 March 1994 was manifestly justified by the need to order and

implement measures to hand the applicant over to the

British authorities.

According to the majority, by holding the applicant in

detention with a view to extradition for the sole reason that the

domestic criminal proceedings on the rape charge were still pending,

the Spanish judicial authorities acted within the limits of the powers

conferred on them under domestic law to defer extradition

(see paragraph 75 of the judgment). I consider that there is a stage

missing from that reasoning. Under the relevant provision of the

Extradition Act (section 19 (2)) and the similar provision of

Article 18 of the Extradition Treaty between Spain and the

United Kingdom (see paragraph 41 of the judgment), delivery of the

person whose extradition is sought into the charge of the requesting

State may be deferred until he has discharged his

criminal responsibilities if criminal proceedings against him are

pending in the State from which extradition is sought. But these

provisions say nothing to the effect that the person whose extradition

is sought must be detained with a view to extradition or held at the

disposal of the requested State in some other manner, in particular in

detention on remand in connection with the

domestic criminal proceedings (1). Consequently, these provisions

cannot constitute the legal basis for detention with a view to

extradition, which is based on other provisions.

_______________

1. It is logical that if the person concerned is detained only for the

purposes of the domestic criminal proceedings, the means that must be

employed to that end are those which are available to the State in such

proceedings. If means which have no place in such proceedings are

used, and if the prisoner is not detained under the responsibility of

the court conducting the proceedings, there is nothing to encourage

that court to proceed with the necessary diligence, notwithstanding the

fact that the prisoner is deprived of the safeguards laid down by the

legislation of most countries in respect of detention on remand, but

not of detention with a view to extradition (for example, statutory

maximum limits of detention, obligation to consider proprio motu, at

various intervals, whether the reasons for detention are still valid,

deduction of detention on remand from the sentence imposed in the

domestic criminal proceedings, etc.).

_______________

For more than seventeen months the applicant was detained only

with a view to extradition. However, the extradition proceedings ended

for all practical purposes with the Cabinet's decision of 28 May 1991.

All that remained to be done was to enforce extradition, which took

only a few days (21-27 March 1994). The Audiencia Nacional's decision

of 17 March 1992 to extend detention with a view to extradition came

after the Puerto de la Cruz investigating judge decided, rightly or

wrongly, that the applicant should be released from detention on remand

(see paragraphs 18 and 19 of the judgment). There can be no doubt that

detention with a view to extradition was used for the purposes of the

domestic criminal proceedings on the rape charge.

Article 5 para. 1 (f) of the Convention (art. 5-1-f) provides

for a review of the lawfulness of the detention of a person against

whom action with a view to his extradition "is being taken". The

wording in both French and English means that only where extradition

proceedings are in progress is deprivation of liberty justified under

that provision (art. 5-1-f). It follows that if the proceedings are

not being conducted by the authorities with the necessary diligence,

or if continued detention results from the pursuit of aims other than

those for which it was prescribed by law, the detention ceases to be

justified under Article 5 para. 1 (f) (art. 5-1-f) (see the

above-mentioned Quinn judgment, p. 19, paras. 47 and 48; see also

application no. 7317/75, decision of 6 October 1976 in the Lynas

v. Switzerland case, Decisions and Reports 6, pp. 141 et seq.).

Whatever approach one chooses - either the excessive length of

detention not justified by extradition proceedings in progress or the

use of detention with a view to extradition for the purposes of the

domestic criminal proceedings - the detention in question was not

justified under Article 5 para. 1 (f) of the Convention (art. 5-1-f)

and there has accordingly also been a violation of Article 5 para. 1

(art. 5-1).