SEPARATE OPINION OF JUDGE GERSING

I voted with the majority of the Court for the non-violation of Article 5 § 1 (art. 5-1) and I fully concur with the reasons given in the judgment in this respect.

However, to my regret I am not able to agree with the majority as to the applicability of Article 6 (art. 6).

It is true that no one contested applicability, but that does not dispense the Court from examining this point of law. In paragraph 54 of the judgment, the majority seems implicitly to accept this principle, which is also well established in the Court ’ s case-law (see, inter alia, the Deweer judgment of 27 February 1980, Series A no. 35, pp. 21-24, §§ 41-47).

The majority states that the applicability of Article 6 (art. 6) in the present case is in accordance with the case-law of the Court, and refers by way of example to the Delcourt judgment. In my opinion, that judgment is not conclusive for the present case. The Delcourt judgment concerned proceedings before the Belgian Court of Cassation which had jurisdiction either to confirm or to quash a judgment by the Court of Appeal in Ghent . Thus, the cassation proceedings were capable of proving decisive for the accused and, consequently, the criminal charge could not be considered as "determined" as long as the verdict of acquittal or conviction had not become final.

The legal situation for the applicants in the present case is different. The leave-to-appeal proceedings as such could not result in an alteration of either the finding of guilt or the length of the sentence, nor could the Court of Appeal quash the judgment of the trial court. They can hardly therefore be said to determine the criminal charge against the applicants. The outcome of the proceedings entailed for the applicants, it is true, a period of imprisonment a little longer than they could normally have expected as a result of the sentence, but this cannot be regarded as involving a variation of the sentence; and the additional detention does not in itself necessitate the application of the procedural guarantees of Article 6 (art. 6), as it is legitimated by Article 5 § 1 (a) (art. 5-1-a).

To the best of my knowledge, there is no clear precedent that leave-to-appeal proceedings of this kind - contrary to appeal proceedings proper - fall within the ambit of Article 6 (art. 6). It would in my view be preferable to consider Article 6 (art. 6) not to be applicable in such cases as its provisions seem to be drafted with the intention of covering ordinary criminal proceedings, and also since there is no pressing need for it to be so applicable. It follows from this approach to the issues raised by the case that the watering-down of the "minimum rights" provided by Article 6 § 3 (art. 6-3), which the majority has accepted, is not called for.

For these reasons, I have voted against the applicability of Article 6 (art. 6) in the present case.

[*]  Note by the Registrar: The case is numbered 7/1985/93/140-141. The second figure indicates the year in which the case was referred to the Court and the first figure its place on the list of cases referred in that year; the last two figures indicate, respectively, the case's order on the list of cases and of originating applications (to the Commission) referred to the Court since its creation.