CONCURRING OPINION OF JUDGE G. BALLADORE PALLIERI

(T ranslation)

In my opinion, there is no need to find out whether the remand in custody could be justified by a danger of repetition of offences on the part of the accused. I am also of opinion that such danger in no way suffices, under the Convention, to make detention while on remand lawful, at least where, as in the present case, it is a matter solely of a theoretical and general danger and not of a definite risk of a particular offence.

In effect, the danger of repetition of offences implies that the accused has already committed offences, for otherwise there would be no "repetition" and this cannot be asserted in respect of the facts which are the subject of the preliminary investigation and on which there has been as yet no final judgment, because there would then be a contradiction with Article 6 (2) (art. 6-2) of the Convention, which provides that "everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law".

Furthermore, no deprivation of individual liberty on this ground is provided in, or may be deduced from, the provisions of Article 5 (art. 5). Sub-paragraph (c) of paragraph (1) (art. 5-1-c) refers only, as I have said above, to the danger of "an offence", that is, a particular offence. Sub-paragraphs (d) and (e) (art. 5-1-d, art. 5-1-e) provide for detention for reasons of security (and it is clearly at this place that detention by reason of a purely possible and hypothetical danger of crimes in the future should be found) but make no mention of this reason for detention. One is at a loss to see what other provisions of the Convention could be relied on for the purpose and it only remains, in my opinion, to draw the conclusion that there is no such ground for detention in the Convention.

As against this, reasonable suspicion that the Applicant had committed offences and the danger of absconding, which are both, under the Convention, valid grounds for detention while on remand, did exist in this case throughout the period of detention.

There is no doubt that Matznetter had attempted to avoid arrest by flight, that substantial sums of money had been transferred abroad, and that the situation had not changed in the course of the detention. The considerations which are set forth in the judgment to lead to the opposite conclusion, to wit that the danger of absconding had ceased to exist, are based, in my opinion, solely on the Applicant ’ s arguments, which are of relatively doubtful value, and not on new facts which might have come to light during the detention. Nor was the offer of security a factor sufficient to dispel all danger of absconding in the present case; besides, the offer preceded the release by only a few months.

Consequently, if, by reason of the fact that the length of the remand in custody had already attained a considerable duration and that the accused was in a poor state of health, the Austrian authorities took the view at a given time that they ought to release him in order to avoid an excessive prolongation of the detention, then the Republic of Austria fulfilled its responsibilities under the Convention.

DISSENTING OPINION OF JUDGE M. ZEKIA

Matznetter was arrested on the 15 May 1963 and kept in custody until his release on 8 July 1965 , that is, his detention prior to his trial lasted for 25 months and 24 days. He was suspected of abetting a certain Margarete Schiwitz and Fritz Schiwitz in the commission of fraudulent bankruptcy and aggravated fraud under the relevant Articles of the Austrian Criminal Code.

One of the major issues to be decided by this Court was whether the aforesaid period of detention, in the circumstances of the case, amounted to a contravention of Article 5 (3) (art. 5-3) of the Convention, inasmuch as, by virtue of the said Article anyone arrested and detained for being reasonably suspected of committing an offence is entitled to trial within a reasonable time or to release pending trial.

As I adopt the statement of facts given in the main judgment of the Court, I need not go into them. Likewise, as I associate myself with the parts of the judgment dealing with the other issues raised in the case, I will not refer to them.

Perhaps it may not be out of place if I make the following introductory remarks.

Article 5 (3) (art. 5-3) presupposes (a), lawful arrest under Article 5 (1) (c) (art. 5-1-c); and (b), the existence of a criminal case for trial. No doubt a trial is preceded by a charge or indictment which at some point of time or other is to be preferred against the detainee.

Article 5 (3) (art. 5-3) also provides for release pending trial, which release might be conditioned with the furnishing of guarantees.

The way paragraph (3) of Article 5 (art. 5-3) is worded, in my view, leaves no room for doubt that a suspect detained under the said paragraph is entitled to trial within a reasonable time, notwithstanding his failure to satisfy conditions set out by legal or judicial authorities for granting him bail.

The primary object of keeping a suspect in custody prior to his trial is to ensure his appearance before the trial court. Besides the above main object, in many countries other grounds for remanding a suspect in custody are also recognised either by law or by judicial practice. Suppression of or tampering with the evidence is a commonly recognised ground for keeping a suspect in custody prior to his trial. There remain instances, varying from one country to another, which are accepted as adequate reason for the continuation of the detention or the refusal of bail. In exceptional cases a suspect might be kept in custody prior to his trial for his own safety. Such is the case, for instance, when an outrageous crime is committed by such person. His detention might also be prolonged for the safety of others, when, for instance, there are good grounds to believe that a release of the detainee might endanger the life of a complainant or of a witness. In all these exceptional cases, however, a surmise or mere possibility of the commission of another offence cannot be regarded as sufficient. There must be, in my view, good reason supported by some evidence before the liberty of a citizen is encroached upon. Article 5 (1) (c) (art. 5-1-c) authorises the arrest or detention of a person "when it is reasonably considered necessary to prevent his committing an offence". This I take primarily to refer to a person who attempts to commit an offence and in order to prevent him from completing the criminal act for which he has been apprehended. It might also be taken to refer to a person, suspected on good grounds, who plans to commit an offence, provided always that what he does by the time of his arrest amounts to a punishable offence in the country in which he lives. I do not think, however, that the said Article was intended to provide for preventive detention of persons who, soley on the account of their criminal propensity, might repeat or commit some offence. I entertain, therefore, great doubt - unless of course derogation from the obligations under the Convention in accordance with Article 15 (art. 15) is resorted to - as to whether a person could be arrested and detained without infringement of Article 5 (1) (art. 5-1) on the ground of the likelihood of his committing or repeating offences simply because he is the type of man of whom one might reasonably expect such criminal conduct.

Whatever view we hold on the second limb of Article 5 (1) (c) (art. 5-1-c), a person detained under it is entitled to a trial within a reasonable time by virtue of Article 5 (3) (art. 5-3). This is supported by the decision in the Lawless case (of 1 July 1961 , on the merits).

I do not think that the mere possibility of the repetition of an offence constitutes a crime by itself.

If I am correct in holding that a mere possibility of the commission of an offence does not authorise an arrest or detention under Article 5 (1) (c) (art. 5-1-c), as it does not amount to an offence, I fail to see how we can make use of such possibility for prolonging the detention of a suspect under Article 5 (3) (art. 5-3), when such a prolongation could only mean a punishment of an unconvicted person and only permitted as an exceptional measure. On the other hand, if repetition of offence is the original cause for arresting and keeping in custody a person under Article 5 (1) (c) (art. 5-1-c) such person is entitled to his trial within reasonable time and we cannot make use of the same reason for prolonging his detention, otherwise we shall have to keep in custody indefinitely all persons with criminal habits and surely this is against the aim and object of Article 5 (1) (art. 5-1).

In the present case the Applicant was not allowed bail before the expiry of his period of detention on the ground of danger of (a) flight and (b) repetition of offences. From the record, it appears that more weight was attached to the second rather than to the first ground. At any rate, the Applicant was unlikely to be kept in custody for such a long time if one of the grounds was not relied upon.

Absconding for a cripple like the Applicant in the light of the wide publicity his case received and after some precautionary measures were taken - such as surrendering his passport and his release being conditioned by reporting to the police at regular intervals - was not an easy thing to do at all. As to the second ground, i.e. repetition of offences, in the circumstances of the case, as I have endeavoured to explain, such ground could not constitute a valid reason for the prolongation of the detentio n. After all, the police force should be entrusted to cope with such eventualities. It strikes me, also, a bit odd the way his application for release, filed on 21 April 1965 , was dealt with. The Applicant had, inter alia, complained of his state of health and that his detention might cause him permanent trouble and even bring about his death. The Investigating Judge communicated the application to the Institute of Forensic Medecine of the University of Vienna . On 21 May 1965 the medical report of the Institute was issued. It was to the effect that the Applicant was suffering from a serious illness which rendered him unfit to be kept in detention. For some unexplained reason, the report does not appear to have reached or to have received the attention of the authorities until 25 June, when the Public Prosecutor ’ s Office informed the Court that they had no objection to the release of the Applicant and, as a result, the Regional Criminal Court of Vienna ordered the release of Matznetter on his signing a solemn undertaking in accordance with Article 191 of the Code of Criminal Procedure. This having been complied with, the Applicant ’ s detention ended on 8 July 1965 .

Here it appears that it took a month and a half for the authorities to give effect to a medical report which deserved urgent attention. The whole period of detention being subject to consideration under Article 5 (3) (art. 5-3), it goes without saying that the Applicant was, at least, kept in custody unnecessarily for a month or so.

Coming to the main point, that is whether in the surrounding circumstances of the case there is a breach of the Convention by keeping Matznetter too long in detention prior to his trial; leaving aside the validity of the grounds of rejecting the various applications of the Applicant for bail and making also all allowances for the complexity of the case - the necessity of protracted investigation involving the examination of balance sheets covering many years with the aid of experts - I venture to find that there was a contravention of Article 5 (3) (art. 5-3) on the part of the respondent Government. If we take into account the untenability of the reasons rejecting applications for release or bail, a fortiori, there is a breach of the Article in question.

As to the concept of reasonableness regarding the duration of detention in relation to the length of investigations and the preparation of the charge or indictment, I had the occasion of expressing my views in another case, namely the Wemhoff case [1] and I need not go into them again. It only remains for me to say here that I still cling to the views I had expressed in that case.