PARTLY DISSENTING OPINION OF MR S. TRECHSEL

I have voted against the finding of a violation with regard to the first period of detention running from 8 February until 14 March 1996 because I am not in agreement with the decision on admissibility with regard to the six months’ rule under former Article 26 of the Convention. In my view, it is not possible to forge a single period of detention out of two distinct periods of detention, which are based on different grounds. Let us suppose that the detention after 14 March was perfectly lawful, e.g. that the applicant had started serving a prison sentence. I have no doubts that any previous deprivation of liberty based on a different ground, e.g. detention on remand, could not be declared admissible more than six months after that period of detention had ended. In the present case the period under examination ended on 14 March, while the application was introduced on 30 December. It ought therefore to have been declared inadmissible.

PARTLY DISSENTING OPINION OF MM. G. RESS AND E. BIELIŪNAS

While we agree with most of the conclusions of the Commission in the present case, we find ourselves unable to agree with the finding that there was no violation of Article 5 para. 3 of the Convention with regard to the applicant’s complaint that he was not brought promptly before a judge or other officer. The view of the majority was that the Lithuanian reservation to Article 5 para. 3 removed the applicant’s right to be brought promptly before a proper officer, and that he did not become entitled to the guarantee of  Article 5 para. 3 after the reservation had expired. In our view, however, the reservation in question was invalid, and it did not affect the applicant’s situation.

We would recall in this connection the provision of Article 64 para. 1 of the Convention which prohibits reservations “of a general character”. The aim of this prohibition is to ensure that reservations are not couched in terms that are too vague or broad for it to be possible to determine their exact meaning and scope (see, Eur. Court HR, Belilos v. Switzerland judgment of 29 April 1988, Series A no. 132, p. 26, para. 55; also see para. 89 of the present Report).

While preserving the right of a prosecutor to authorise detention, the text of the reservation included no reference to the bringing promptly of the arrested person before any officer. The reservation referred to the then provision of Article 104 of the Code of Criminal Procedure which in fact included the possibility, “when necessary”, for the arrested person to be brought before a prosecutor (see para. 44). However, the reservation did not refer to this part of the former Article 104. It remains unclear, in our view, whether the reservation thus deprived an arrested person of a right to be “brought promptly” before any particular “officer”, whether it conferred upon a prosecutor the “judicial power” to execute the guarantee of Article 5 para. 3, or whether it limited other rights under Article 5 para. 3. The reservation could be interpreted in different ways, whereas Article 64 para. 1 requires precision and clarity (see, mutatis mutandis , the Belilos judgment cited above, loc. cit.). While it may well be argued that Lithuania’s concern at the time of ratification was to put the relevant provisions of domestic law in conformity with Article 5 of the Convention, that cannot obscure the objective reality of the inadequate wording of the reservation.

In our view, therefore, the reservation is not really in line with the rule that reservations must not be of “a general character”, with the result that it should have been held to be invalid. The majority’s argument that the reservation removed the applicant’s right to be brought promptly before a proper officer thus should have been rejected. Further, as the applicant’s rights under Article 5 para. 3 were not affected by the reservation once his detention on remand had been authorised, his position should not have been affected once the reservation had expired.

On the facts of the case, the applicant was not brought before an officer within the meaning of Article 5 para. 3 from the moment when his detention on remand was ordered on 14 March 1996 until 14 October 1996, i.e. within seven months. Such a lapse of time without judicial scrutiny can in no way be regarded as “prompt” within the meaning of Article 5 para. 3. In our view, therefore, there was a breach of Article 5 para. 3 in this respect.

[1]   The term “former” refers to the text of the Convention before the entry into force of Protocol No. 11 on 1 November 1998.