SEPARATE CONCURRING OPINION OF MR. S. TRECHSEL,

  JOINED BY MM. J.-C. SOYER, H.G. SCHERMERS and M.A. NOWICKI

     I agree with the majority that there has been a violation of

Article 5 para. 1 of the Convention in the present case. However, to

arrive at this conclusion I prefer another reasoning.

     In fact, I strongly hesitate to find a violation of Article 5

para. 1 on the basis of the argument that a conviction was

substantially wrong and therefore the execution of the sentence which

consists in a deprivation of liberty cannot be justified under

Article 5 para. 1 (a) (would a pecuniary sentence constitute a

violation of Article 1 of Protocol No. 1 ?). This is what the majority

says in para. 77: "... it has been established that the applicants'

conviction ... has clearly no basis in domestic law. As a result, the

detention of the applicant[s] ... cannot be considered to be 'lawful'

within the meaning of Article 5 para. 1 (a) of the Convention".

     As a consequence, this would imply that the merits of a sentence

(e.g. under Article 7) could be examined by way of an application

concerning the prison sentence. Thereby, both rules of exhaustion of

domestic remedies and the six-months' time-limit could be circumvented.

I would also like to refer to Article 3 of Protocol No. 7 which grants

a right to compensation only in case a "final decision" was quashed

after the person concerned has served (part of) a sentence. In effect,

the reasoning of the majority leads to a right to compensation also if

a prior judgment has been reversed on appeal, which was not at all the

intention when Protocol No. 7 was drafted.

     I cannot help but refer to an opinion which I have stubbornly

upheld since a very long time and last expressed in my dissenting

opinion in B v. Austria (Eur. Court H.R., judgment of 28 March 1990,

Series A no. 175, p. 29s.): detention after conviction in first

instance is to be regarded as detention on remand within the meaning

of Article 5 para. 1 (c) as long as the domestic law gives suspensive

effect to the appeal.

     There can be no reasonable doubt that this was the case for the

applicant's detention after conviction in the present case. Para. 47

of the Report relates that "[t]he Public Prosecutor ... proposed that

the applicants' provisional detention should be continued" (emphasis

added).

     Starting from this point of view, it is uncontestable that no

reasonable suspicion of having committed an offence could be held

against the applicants in view of the case-law of the Council of State.

This, in my view, is the reasoning which leads to the finding of a

violation of Article 5 para. 1 in the present case.

                                                 (Or. English)