DISSENTING OPINION OF Mr E.A. ALKEMA

JOINED BY Mr F. MARTINEZ

I have voted against a violation in this case for three reasons.

Firstly, according to the majority, the impugned "delay was caused

exclusively by the fact that the Cracow University was slow in the preparation

of its opinion" (para. 42).  It is to be noted, however, that this opinion was

sought at the express wish of the applicant.  Therefore, it could rightly be

argued that this circumstance alone already estopped him from complaining about

the ensuring delay (see Eur. Court HR, Capuano v. Italy judgement of 25 June

1987, Series A no. 119, p. 14, para. 33).

Be that as it may, the majority further opines that "the court's primary

concern should have been to speedily obtain the expert opinion".  I find this

incompatible with the prime importance to be attached to the possibility for

challenging medical evidence under Article 5 para. 4  when the detention of

persons of unsound mind is concerned (Eur. Court HR, Winterwerp v. the

Netherlands judgment of 24 October 1979, Series A no. 33, p. 23, para. 58).

Accordingly, it should not be held against the domestic courts that they sought

at the applicant's request a second medical opinion.

Secondly, the majority held the Polish court fully responsible for the

delay caused by obtaining the medical opinions.  In principle that is correct,

but it may be observed that due regard be given to the fact that the courts'

control over the speediness is remote and indirect only.  The time used by

experts should not simply be equated to intervals between judicial acts.  Courts

often face the dilemma  either to await a slowly produced expert report or in

the alternative commit another expert but have to grant to the latter a new term

to produce his report.

Thirdly, and taking into account the share in the delays caused by the

applicant himself - as set out above - I fail to see that the overall period

calculated at one year, nine months and twenty-four  days (para. 42) has been

too long.

Finally, I reject the majority's further argument in para. 45 derived from

Article 197 of the Code of Execution of Sentences, that the detention would have

been contrary to Polish law.  According to its decision of 6 September 1995 the

Commission declared admissible only the complaint about the length of the

proceedings in which the lawfulness of the continued detention is examined but

not the lawfulness itself.