DISSENTING OPINION OF MRS. J. LIDDY

I agree with the majority that one of the basic requirements of judicial proceedings is an adversarial procedure.

I also agree with Mr. Loucaides when he recalls that the judicial proceedings referred to in Article 5 para. 4 need not always be attended by the same guarantees as those required under Article 6 para. 1 for civil or criminal litigation ( Megyeri v. Germany judgment of 12 May 1992, Series A no. 237-B).

In the present case the District Court's decision that there was a strong suspicion against the applicant was based on a reading of the case-file which was not available to the applicant from the outset. Nonetheless, as pointed out by Mr. Loucaides , the applicant had some, albeit limited, information about the grounds for suspicion against him.

This limited information would apparently have sufficed to enable the applicant to challenge the existence of a "reasonable suspicion" within the meaning of Article 5 para. 1 (c). Under domestic law, however, the lawfulness of his detention depended in part on the existence of "strong suspicion". Does this mean that the "lawfulness of his detention" within the meaning of Article 5 para. 4 could only be decided on after the relevant evidence of strong suspicion had been opened to the applicant for adversarial argument? In the light of the fact that in general German law gives a higher level of protection against detention than required by Article 5 para. 1 (c) (by providing for "strong" suspicion), does Article 5 para. 4 require more than the existing provision in domestic law for consultation of the case-file except in exceptional circumstances? To date, Article 5 para. 4 has not been interpreted as always requiring access to the prosecution's full case-file from the outset, a course that would have obvious risks for continuing investigations in exceptionally grave and difficult cases such as those concerning drug-ring and corruption cases. On balance, it seems to me that to find in the present case that such consultation was required merely because German law provides a test of "strong suspicion" would amount to saying that the best is the enemy of the good.

On the other hand, does Article 5 para. 4 require that decisions on detention on remand be based on and cite only such evidence for "reasonable suspicion" as the individual has had an opportunity to challenge? In the Brogan and others judgment of 29 November 1988 (Series A no. 145-B) the Court unanimously found no violation of Article 5 para. 4 where the domestic law review encompassed compliance with the technical requirements of the relevant statute and "may" extend, inter alia , to an inquiry into the reasonableness of the suspicion grounding the arrest. The Court was satisfied that the applicants in that case had available to them a remedy "allowing the competent court to examine not only compliance with the procedural requirements ... but also the reasonableness of the suspicion grounding the arrest ..." Bearing in mind the differences which can exist between Contracting States in their implementation of the guarantees of Article 5 in domestic law, it seems to me that Article 5 para. 4 does not always require the competent court to cite only such evidence of "reasonable suspicion" as the applicant has been able to challenge.

In the Neumeister case (judgment of 27 June 1968) the Court rejected the argument that decisions concerning detention on remand relate to "civil rights and obligations" such that all the attributes of a fair hearing under Article 6 attached. In the recent case of Aerts v. Belgium (judgment of 30 July 1998) the Court has found that "the right to liberty, which was thus at stake, is a civil right" and that the refusal of legal aid impaired the very essence of that applicant's right to a tribunal. The issue in that case concerned the detention of a person of unsound mind and it is not clear whether the Court intended to reverse its earlier jurisprudence to the effect that Article 5 para. 4 is the lex specialis in the case of decisions on detention on remand and that Article 6 did not apply.

Even assuming that Article 6 para. 1 does apply to decisions relating to detention on remand, I recall the words of Judge Walsh in his dissenting opinion in the Brannigan and Mc Bride judgment of 26 May 1993 (Series A no. 258): "The concealment of sources and the names of informants is a matter that arises in many areas in the prosecution of offences ... a police claim of privilege against disclosure is invariably upheld. It is quite wrong to suggest that the adversary procedure of the common law requires such disclosure, particularly on first appearance in court". Claims of privilege can in practice also arise in civil cases, under a procedure allowing the judge to inspect the documentation before deciding whether it should be disclosed.

It has not been established that such procedures are always in violation of Article 6 para. 1 or whether, on the contrary, there may be exceptional circumstances justifying them provided sufficient safeguards against arbitrariness and injustice are in place. Likewise, I do not find it established that the procedures adopted in the present case prior to trial were not justified by the exceptional circumstances of the nature of the suspected offence. Moreover, sufficient safeguards against arbitrariness and injustice existed, as the investigation files would become fully known to the defence at a later stage and as release would be ordered if detention became disproportionate in the light of the guarantee under Article 5 para. 3 to trial within a reasonable time or release pending trial.

In these circumstances, not without considerable difficulty, I have come to the conclusion that there is no violation of Article 5 para. 4

(Or. English)