CONCURRING OPINION OF Mr H. DANELIUS

JOINED BY Mrs G.H. THUNE, Mrs J. LIDDY, Mr N. BRATZA and Mr D. ŠV ÁBY

We agree that there has been no violation of Article 5 (3) of the Convention by reason of the global length of the applicant’s detention on remand. We wish to specify that in our view the period involved was not that set out at paragraph 66 of the Report (eighteen months and one week) but closer to thirteen and a half months.

With respect, we consider that the periods involved at paragraph 66 should be calculated in a different way. We can agree that in the circumstances of this case the first period involved lasted from 18 November 1992 to 13 May 1993, i.e. almost six months. We also agree that the third period lasted from 20 May to 11 August 1997, i.e. approximately two months and three weeks. However, the second period should in our view be calculated from 29 April to 30 September 1996 (instead of 20 February 1997), i.e. approximately five months.

The date 30 September 1996 was the date on which the applicant was convicted by the Rousse District Court and sentenced to two years’ imprisonment (paragraph 37 of the Report). The date 20 February 1997 was the date on which, although he was already imprisoned, his sentence began in terms of domestic law, apparently because of the effect in domestic law of his intervening appeal to the Rousse Regional Court (paragraph 38 of the Report).

The Court has had occasion to rule on whether detention on remand ceases with the pronouncement of a first instance judgment for the purposes of Article 5 (3) notwithstanding that under domestic law it may continue until after an appeal and final sentence. Thus, in B. v. Austria (Judgment of 28 March 1990, Series A, vol. 175) the Court confirmed its earlier jurisprudence in the Wemhoff case (judgment of 27 June 1968) that “a person convicted at first instance, whether or not he has been detained up to this moment, is in the position provided for by Article 5 (1) (a) which authorises deprivation of liberty ‘after conviction’. This last phrase cannot be interpreted as being restricted to the case of final conviction…”. The Court added in the B. v. Austria case that “it also has to be stressed that there exist important differences among the Contracting States on the question whether a person convicted at first instance has started serving his sentence while an appeal is pending. In this regard the Court, like the Commission, finds it reasonable that the important guarantees of Article 5 (3) of the Convention should not be made dependent on any one particular national situation”.

Accordingly, we consider that if account had been taken of the B. v. Austria judgment the period between 30 September 1996 and 20 February 1997 was to be regarded as detention “after conviction by a competent court” within the meaning of Article 5 para. 1 (a) of the Convention and should therefore not be included in the assessment of whether the applicant’s detention on remand exceeded a reasonable time.

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