JOINT DISSENTING OPINION OF JUDGES PETTITI AND SPIELMANN

(Translation)

I .   Article 5 § 1 (art. 5-1) of the Convention

Unlike the majority, we held that there had been a breach of Article 5 § 1 (art. 5-1) of the Convention.

The Court rightly recognised that the possible forms of legal machinery whereby a person may be ordered to be detained after conviction are not such as to exclude the applicability of Article 5 § 1 (a) (art. 5-1-a).

In our view, however, the majority of the Court was wrong to conclude in the instant cases that there had not been any breach of that provision.

Generally speaking, it is significant in itself that the very great majority of the Council of Europe ’ s member States have no system, such as the one in issue before the Court, whereby the time spent in custody pending determination of an appeal may not be reckoned as part of sentence.

This system, governed by an Act of 1968, provides that where an application for leave to appeal is refused, all or part of the time spent in custody after the application has been lodged may be ordered not to be reckoned as part of the sentence passed. The same applies if the application is renewed before a three-judge court, which can moreover order loss of an even greater length of time.

The consequence is a later date of release for the person concerned.

In purely humanitarian terms, it is legitimate to question the justification for an institution which makes the right of appeal subject to leave and attaches penalties if such leave is refused.

More particularly, and since this is still the system prevailing in the respondent State, the Court had to ascertain whether in the instant cases such an institution was compatible with the provisions of the Convention.

The Government maintained that the Court of Appeal merely gives directions as to the mode of execution of sentence in the case of those who pursue an appeal which the Court of Appeal regards as frivolous.

We cannot accept such an argument.

Even if the principle of a system of loss of time were accepted, it would still be necessary to provide a number of basic safeguards.

We are of the opinion that the impugned legislation can be said to be incompatible with Article 5 (art. 5).

The loss of time ordered may amount to the whole of the period of detention between conviction and refusal of leave to appeal.

Within the limits of that period, the relevant court determines the loss of time without any fixed criteria or objective grounds.

In the two cases before the Court, the applicants risked losing eight and fourteen months respectively.

The loss of time ordered was twenty-eight and fifty-six days respectively.

In practice, the average loss of time is apparently sixty-four days.

What is more serious is that the theoretical risk run by the convicted person is such as to deter even a convicted person who is innocent, or believes himself to be innocent, from lodging an appeal.

The system complained of is indeed used - as the Government conceded - to deter convicted persons in custody from lodging an appeal, so as not to increase the Court of Appeal ’ s workload needlessly.

In our view, it is inconceivable that a system of sentencing to imprisonment should be dependent upon the exigencies of judicial management (shortage of judges and other staff, etc.).

Such a deviation is likely, in the short or medium term, to transform detainees, or even the common citizen before the law, into the instrument of a crime policy which is subject to political changes in the assessment of what "the administration of justice" must or should be.

In those circumstances, we share the view of the overwhelming majority of the Commission (ten votes to one) that there had been a breach of Article 5 § 1 (art. 5-1) of the Convention.

As the Commission stated (in paragraph 122 of its report), we consider that the periods not reckoned as part of the sentences imposed on the applicants cannot be regarded as being part of their detention after conviction. Such an analysis is indeed ruled out by the very terms of the loss-of-time orders.

The majority of the Commission rightly noted: "... bearing in mind the purpose for which the loss-of-time orders were made, which was unconnected with the original sentences imposed on the applicants or with the offences for which they were convicted ...".

In our view, the periods of detention which were ordered not to be counted towards the service of the applicants ’ sentences cannot be regarded as detention compatible with Article 5 § 1 (art. 5-1) of the Convention.

II. Article 6 (art. 6) of the Convention

The Court has held - wrongly, in our view - that there was no breach of Article 6 (art. 6) of the Convention.

Even if it were admitted that the system complained of was compatible with the requirements of Article 5 (art. 5) of the Convention, it would nonetheless remain the case that the additional period of imprisonment imposed on the two applicants was a consequence of the refusal of leave to appeal.

That being so, we consider that the principle of a "fair trial" required that the applicants should be heard by the relevant courts so that they could present their case in person.

Can it really be accepted that grounds set out in writing by the applicant - in the closed world of a prison - are sufficient to satisfy the requirements of Article 6 (art. 6)?

The seriousness of a further period of imprisonment militates against that argument.

Surely the requirements in this respect, which were reiterated in the judgment in the Öztürk case - where only a fine was at issue -, should also apply when several months ’ imprisonment is at stake?

In line with the opinion of the majority of the Commission (see paragraph 152 of the report), we consider that "the applicants ’ absence from the determination of their applications for leave to appeal, which resulted in the making of orders that they lost time in the calculation of their service of sentence, deprived them of a ‘ fair hearing ’ in the determination of the criminal charges against them as guaranteed by Article 6 § 1 (art. 6-1) and of the right to defend themselves in person as guaranteed by Article 6 § 3 (c) (art. 6-3-c) of the Convention".

We are of the opinion that where the individual liberty of the subject is at stake, the decisions should be taken in the presence of the person concerned and during fully adversarial proceedings.