DISSENTING OPINION OF MR. L. LOUCAIDES

JOINED BY MR. G. JÖRUNDSSON, MRS. G.H. THUNE AND

MR. I. CABRAL BARRETO

I am unable to agree with the decision of the majority that there was a violation of Article 5 para. 4 of the Convention.

The basic complaint of the applicant is that he was deprived of effective judicial review of his detention because he did not have full access to the contents of the investigation file and generally to the material placed before the Court in support of his detention. The applicant complains that the procedure which was followed was contrary to the principle of "equality of arms" and that he was denied an adversarial procedure.

It is correct that the purpose of Article 5 para. 4 is to assure to persons who are arrested and detained the right to a judicial supervision of the lawfulness of the measure to which they are thereby subjected. But as it was pointed out by the Court, "the judicial proceedings referred to in Article 5 para. 4 need not always be attended by the same guarantees as those required under the Article 6 para. 1 for civil or criminal litigation" ( Megyery v. Germany judgment of 12 May 1992, Series A, no. 237-B, pp. 11-12, para. 22). This approach takes into account the different scope and objective of the judicial proceedings under Article 5 para. 4 as compared with those under Article 6.

In the case of the examination of the lawfulness of an arrest or detention under Article 5 para. 1(c) there is no question of a trial regarding the guilt or innocence of the detainee in respect of any criminal charge. The only objective of such judicial supervision is to protect individuals from arbitrariness. The role of the Court and the rights of the detainee are inevitably limited and different as compared to the situation in trial proceedings.

The Court went as far as to say that "Article 5 para. 1 (c) of the Convention should not be applied in such a manner as to put disproportionate difficulties in the way of the Police authorities of the Contracting States in taking effective measures to counter organised terrorism" (Fox, Campbell and Hartley judgment of 30 August 1990, Series A no. 182, p. 17, para. 34). On the basis of that approach the Court stated that "the Contracting States cannot be asked to establish the reasonableness of the suspicion grounding the arrest of a suspected terrorism by disclosing the confidential sources of supporting information or even facts which would be susceptible of indicating such sources or their identity" (ibid.). The same approach should be applicable in respect of any serious crime.

Accordingly, in deciding the nature and extent of information that should be given to an arrested person in order to allow him to test the lawfulness of his arrest a balance should be kept between giving sufficient material to allow a judicial review of the lawfulness of the detention and avoiding disclosure of information or material which may undermine the investigation in respect of which the detention has taken place. Thus, the information to be given to an arrested person in such cases may be limited to the essential legal and factual grounds for his arrest; it does not necessarily extend to the whole spectrum of information in the hands of the investigating authorities (cf. Fox, Campbell and Hartley , op.cit ., p. 19, para. 40).

In the present case, the applicant was, upon his arrest on 7 April 1993, informed in general terms of the grounds for suspicion and the evidence against him, as well as the grounds for his detention. He was also given oral information on the contents of the arrest warrant.  Moreover, upon counsel's request, copies of the applicant's statements to the police authorities and the Investigating Judge, of the record of the search of the applicant's premises, as well as a copy of the arrest warrant against him were made available to the defence still in April and again in May 1993.  On the basis of this information, the applicant, represented by counsel, lodged his request for release and made submissions in his defence .

It is true that, at this early stage, the Public Prosecutor's Office refused counsel's request for consultation of the investigation files, and in particular of the depositions made by Mr. K.  The Public Prosecutor's Office considered that consultation of these documents would endanger the course of the investigations, especially as the records on the questioning of Mr. K. contained information about further suspected persons and about other investigation proceedings.  In this context, I note that, as stated by the Berlin Regional Court in its decision of 14 June 1993, one of the reasons justifying detention was the risk of collusion.

On 27 May 1993, on the occasion of the hearing before the Berlin- Tiergarten District Court, which had to decide on the applicant's request for a review of his detention on remand, his defence counsel did not have the very text of Mr. K.'s deposition at his disposal in order to challenge the findings in the arrest warrant.  Nevertheless, on the basis of the oral information as well as the copies of documents given to them, in particular the arrest warrant, the defence had the opportunity of commenting upon the main evidence referred to by the Public Prosecutor's Office, and in particular upon the depositions made by Mr. K. who, as the defence was aware, was himself affected by the investigations concerning drug offences.

The Berlin- Tiergarten District Court, on the basis of the contents of the investigation file and the parties' submissions, reached the conclusion that there was a strong suspicion that the applicant had committed the offences in question.  In June and July 1993 this decision was confirmed by the Berlin Regional Court and the Berlin Court of Appeal, respectively.

I believe it was not essential that, at this very early stage of the criminal proceedings against the applicant, the defence be given an opportunity to inspect the documents in question in order effectively to challenge the lawfulness of the arrest warrant.

As regards the further course of the proceedings, I note that already on 13 August 1993 applicant's counsel obtained copies of the records on the questioning of Mr. K. to the extent that they related to the applicant.  One month later, counsel was informed that there were no longer any reasons to refuse full inspection of the file, and he obtained access to the full file in September 1993.

Having regard to all relevant material, I believe that the applicant had at his disposal a procedure to have the lawfulness of his detention reviewed, which afforded him an adequate opportunity of challenging the reasons relied upon to justify his remand in custody. In these circumstances, I find that there has been no violation of Article 5 para. 4 in this case.