DISSENTING OPINION OF JUDGE RYSSDAL

I am unable to agree with the conclusi on of the majority of the Court that there has been no breach of Article 5 para. 3 (art. 5-3) of the Convention in the present case.

The object and purpose of Article 5 (art. 5) is to give specific guarantees for the protection of personal liberty. It is fundamental that no person may be deprived of his liberty except when this is decided on the basis of very clear reasons prescribed by law. It is also fundamental that such a decision should be taken by an impartial and independent authority in accordance with a procedure prescribed by law. In criminal cases this applies not only to the detention of convicted persons but also to detention on remand.

It would certainly be preferable if everyone arrested on suspicion of having committed an offence had to be brought promptly before a judge and if only the courts had competence to decide on the reasons for and against detention on remand. However, Article 5 para. 3 (art. 5-3) of the Convention leaves it to the Contracting States whether arrested persons are to be brought before a "judge" or before an "other officer authorised by law to exercise judicial power". This wording is not quite clear and it is difficult to say what its meaning is if it is considered apart from its context. Here the relationship between the provisions of Article 5 para. 3 and of Article 5 para. 4 (art. 5-3, art. 5-4) is of importance. According to Article 5 para. 4 (art. 5-4), everyone who is deprived of his liberty by arrest or detention "shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court ...". Paragraph 4 (art. 5-4) thus expressly requires the intervention of a court. Both the wording of paragraph 3 (art. 5-3) and the relationship between paragraphs 3 and 4 (art. 5-3, art. 5-4) seem to support the view that Article 5 para. 3 (art. 5-3) does not require for the "officer" mentioned therein the same sort of judicial attributes as it does for the "judge".

The Contracting States cannot, however, enjoy complete freedo m as regards the persons whom they may authorise to take decisions concerning detention on remand. The purpose of Article 5 para. 3 (art. 5-3) is to establish a system of judicial review and, by that means, to give specific guarantees to persons deprived of their liberty. If a Contracting State leaves such judicial power to an "officer" other than a judge, it is necessary that this "other officer" should not be dependent on or controlled by the administration and also that he can be regarded as independent and impartial. Depriving a person of his liberty is a very serious measure, and the purpose of Article 5 para. 3 (art. 5-3) is to give the utmost protection to individual liberty.

It is a fundamental principle that prosecution and judiciary should be separated. I think that this principle should be applied also in the interpretation of Article 5 para. 3 (art. 5-3) of the Convention and that an officer who acts as a public prosecutor cannot be regarded as an "officer authorised by law to exercise judicial power", within the meaning of Article 5 para. 3 (art. 5-3).

In my opinion, the Winterthur Distric t Attorney, whose main activity is investigation and prosecution and who in that capacity acts under the supervision of the highest prosecuting authority, does not fulfil the requirements of Article 5 para. 3 (art. 5-3). I do not find it decisive that the District Attorney did not act as prosecutor in this particular case. That he would not do so was not clear – and certainly not clear to the applicant - when the District Attorney made the order that the applicant should be placed in detention on remand. The District Attorney ’ s main task - that of prosecuting - is in my opinion incompatible with the judicial power under Article 5 para. 3 (art. 5-3) to take decisions as to detention on remand.

For these reasons I have come to the conclusion that in the present case there has been a breach of Article 5 para. 3 (art. 5-3) of the Convention.

DISSENTING OPINION OF JUDGE EVRIGENIS

(Translation)

I voted to the effect that there has bee n a breach of Article 5 para. 3 (art. 5-3) of the Convention. In my view, the Winterthur District Attorney cannot be regarded as an "officer authorised by law to exercise judicial power" (in the French text: "un magistrat habilité par la loi à exercer des fonctions judiciaires "), within the meaning of Article 5 para. 3 (art. 5-3). My reasons are the following:

(a) Authorisation to exercise fonctions " judiciaires "/"judicial" power signifies, for the purposes of Article 5 para. 3 (art. 5-3), competence to exercise those fonctions /powers which are characteristic of the judiciary. By that I mean the fonctions /powers which specifically distinguish a judge from other officials acting generally within the framework of the judicial system or of the administration of justice. In this respect, it is significant that, while the French text uses the expression " fonctions judiciaires " (translated literally as "judicial functions"), the English text speaks of "judicial power". It is equally significant that the task provided for in Article 5 para. 3 (art. 5-3) entrusted, first and foremost, to a judge. The term "judicial" in this provision should therefore be interpreted as having a narrow meaning. The exercise of fonctions judiciaires /judicial power means the exercise of a judge ’ s fonctions /power by an authority not invested with the formal status of a judge.

(b) A District Attorney in the Canto n of Zürich is an investigating and prosecuting authority (see paragraphs 12 et seq. of the judgment). Such functions cannot be described as involving "judicial power" within the meaning of Article 5 para. 3 (art. 5-3). While being true for his powers as a prosecutor, this is no less valid for his investigating activities. Criminal investigation, even when performed, as it should always be, in conditions of independence and objectivity, does not involve a power which in itself confers on the person exercising it the status of a judge. It is thus not reconcilable with Article 5 para. 3 (art. 5-3) of the Convention to affirm that a District Attorney in the Canton of Zürich exercises "judicial power" by reason of the fact that he acts as an investigating authority. Moreover, the position he occupies in the structure of the judicial machinery under consideration and the nature of his hierarchical dependence reinforce this conclusion.

(c) It is equally true, at any rate, th at Article 5 para. 3 (art. 5-3) allows the power of decision regarding detention on remand to be entrusted to an authority which holds judicial power concurrently with other power. Nevertheless, such a combination of judicial and non-judicial power must not entail fundamental contradictions as to the nature and the purpose of the diverse powers so combined. Even if, on a broad interpretation of the expression "officer authorised by law to exercise judicial power", it were accepted that the function provided for in Article 5 para. 3 (art. 5-3) may be attributed to an authority primarily exercising power other than that of a judge, what is nonetheless essential is that this other power should not be incompatible with the power of a judge. To entrust the power of decision regarding detention on remand to an authority which numbers amongst its powers that of a prosecuting authority would be contrary to the Convention. It is immaterial whether or not in a given case this authority is called on to exercise the two kinds of power. Their incompatibility is inherent in the system itself and divests the authority in question of the legal and psychological attributes of independence, objectivity and impartiality that must be possessed by the authority to which Article 5 para. 3 (art. 5-3) entrusts the fate of a person deprived of his liberty.