PARTLY DISSENTING OPINION OF MR M.P. PELLONPÄÄ, JOINED BY

MM S. TRECHSEL, G. JÖRUNDSSON, A.S. GÖZÜBÜYÜK, J.-C. SOYER,

H. DANELIUS, MRS G.H. THUNE, MM. B. CONFORTI, G. RESS AND K. HERNDL

We disagree with the conclusion that there has been a violation of Article 5 para . 3 of the Convention.

According to this provision, a person "arrested or detained in accordance with the provisions of paragraph 1.c of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or release pending trial."

It is undisputed that the applicant was brought promptly before a Magistrate fulfilling the basic requirements of "a judge or other officer authorised to exercise judicial power". The question is whether the fact that, by virtue of Section 25 of the Criminal Justice and Public Order Act 1994, the judge lacked power to release the applicant on bail is, in the circumstances of the case, compatible with Article 5 para . 3.

The provision on the right to release must be read in conjunction with para . 1 of Article 5. As a point of departure, no right to release for a person brought promptly before a judge can be inferred from para . 3 if the deprivation of liberty is in conformity with para . 1.

Para . 1 firstly requires that any deprivation of liberty takes place only "in accordance with a procedure prescribed by law", i.e. in accordance with both the substantive and procedural requirements of domestic law. Secondly, the kind of deprivation of liberty at issue here must be based "on reasonable suspicion of [the person in question] having committed an offence"( para . 1.c).

It is not contested that the deprivation of liberty took place "in accordance with a procedure prescribed by law." Nor is there any dispute that, when brought before the judge, the applicant was under "reasonable suspicion of having committed an offence" within the meaning of para . 1.c which does not, for example, require the deprivation of liberty to be "necessary in a democratic society" (cf. e.g. Article 8 para . 2).

In view of this, when brought before the judge on 4 January 1996 the applicant could derive from Article 5 para . 3 no right to be released. That the release, according to the last sentence of para . 3, "may be conditioned by guarantees to appear for trial", does not create any obligation to provide for an alternative of release on bail at the "first stage" of a deprivation of liberty, if that deprivation of liberty is in conformity with Article 5 para . 1.c. Therefore the fact that the judge deciding on the detention on remand had no option of granting the applicant bail, i.e. he lacked the power to do something the Convention in any case did not oblige him to do, does not violate Article 5 para . 3.

It is true that while reasonable suspicion that the person arrested has committed an offence within the meaning of Article 5 para . 1.c is a sufficient condition for detention at the early stages of the deprivation of liberty, after a certain lapse of time such a suspicion no longer alone suffices but the supervisory organs must examine "the grounds which persuaded the judicial authorities to decide" that the detention should be continued (e.g. Eur . Court HR, B. v. Austria judgment of 28 March 1990, Series A no. 175, p. 16, para . 42). At this "second stage" of the detention the kind of considerations put forward in para . 43 of the Report become relevant. For example, "the possibility of a severe sentence is not sufficient after a certain lapse of time to justify the length of detention" (Id. para . 44). It is not excluded that at such a later stage the application of Section 25 of the Criminal Justice and Public Order Act 1990 could lead to situations incompatible with Article 5 para . 3 as it has been interpreted by the Court.

However, it is not necessary to take a stand on the question as to when such a stage would possibly have been reached, as in the circumstances of this case it was in any event not reached by the time the applicant’s detention on remand came to an end in October 1996. Until then it was enough, from the point of view of Article 5, that he was under a "reasonable suspicion of having committed a criminal offence". That during this period the English courts lacked the power of doing what they in any case were not obliged to do under the Convention cannot in our view constitute a violation of Article 5 para . 3. In reaching this conclusion we note also the guarantees mentioned in para . 31 of the Report.

It follows that there has been no violation of Article 5 para . 5 either.