DIS SENTING [*] OPINION OF JUDGE J. CREMONA

With respect, I find myself unable to concur in the conclusion reached by the majority of my brother judges on the question whether Matznetter ’ s detention pending trial exceeded the reasonable time laid down in Article 5 (3) (art. 5-3) of the Convention.

I am led in the first place to make one or two observations which, although of a general character, would appear nonetheless to be opportune and perhaps also useful to the extent that they may afford a broader and, I venture to hope, proper background to the more detailed reasons set out below in support of my conclusions.

I would say at the outset that it is from the concept of reasonable necessity that we must start off in considering the subject of pre-trial detention. A serious restriction of personal liberty, detention pending trial is the harsher in its personal, social and economic implications in that the person concerned, has not yet been judicially declared guilty and indeed may eventually even be declared not guilty. Detention pending trial is in respect of both its inception and continuance justified and at the same time also limited by its own reasonable necessity. This is also the view that flows from a proper balancing of the two fundamental needs involved in the very fact of pre-trial detention, that of the proper administration of justice on the one hand and, on the other hand, that of respect for the personal liberty of the individual, arrested ex hypothesi lawfully but not yet tried.

Another general observation arising out of certain statements made in the course of the proceedings is that while it is true that, in assessing the reasonableness of the length of a term of detention, all relevant circumstances are to be taken into account, certain delaying factors which may perhaps be inherent in the peculiar machinery of a given legal system cannot operate so as to make reasonable a length of detention which, apart from the consideration of those factors, would otherwise be unreasonable. In this we must, I think, be guided by the spirit of the Convention itself. The word "reasonable" in Article 5 (3) (art. 5-3) must, I feel, be correlated to a common European standard so as to mean "reasonable" in respect of any person in any of the member States. Otherwise, its evaluation will necessarily depend on the characteristics of the law enforcement machinery of each particular State, and that in my view it is not what is implied by either the letter or the spirit of the provision itself.

Much has been said about the complexity of the case and far be it from me to belittle it here. I would only say that complexity, in the absence of any negligence or slackness on the part of the authorities concerned in the conduct of the case, may indeed justify a long investigation but not necessarily also an unduly long detention. The justifiable length of an investigation is not necessarily and (as it appears to be sometimes assumed) automatically co-extensive with the justifiable length of pre-trial detention. If it were, it would be possible to conceive of a case of such extreme complexity as to justify a detention of, say, ten years or more.

I am of course fully aware of both the complexity and the seriousness of the present case; at the same time I do consider that these factors must not be allowed, in the general context of the question now before us, to assume larger proportions than they properly deserve, for, where the reasonableness of a length of detention is being considered, what is involved is essentially a balanced evaluation of relevant circumstances.

Turning to the specific reasons given by the national judicial authorities for Matznetter ’ s protracted detention, I would in the first place refer to what was stated by this Court in the Wemhoff and Neumeister judgments, namely that it is essentially on the basis of the reasons given in the judicial decisions on the applications for provisional release and of the unrefuted facts mentioned by the Applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of the Convention. It is not proposed here to go into, or interfere with, the assessment made by the national judicial authorities in their decisions any more than is necessary for the proper fulfilment of the duty, imposed on the members of the Court by the Convention itself, to pronounce on the compatibility of those decisions with the provisions of the Convention.

From the warrant of 15 May 1963 for Matznetter ’ s arrest it emerges that it was originally grounded on a threefold danger of absconding, of tampering with evidence and of repetition of offences. In dismissing Matznetter ’ s subsequent applications for provisional release the national judicial authorities, however, invoked only two of these three initial grounds, namely the first and the last.

As to danger of absconding, this Court has found in its majority judgment that after a certain time Matznetter ’ s continued detention was no longer justified on this particular ground. I agree with this conclusion and do not consider it necessary to enlarge on the supporting reasons set out in the judgment.

It only remains for me; therefore, to turn to the other ground relied upon by the national judicial authorities for justifying Matznetter ’ s continued detention, namely danger of repetition of offences. My conclusion on this point is that the appreciation by the national judicial authorities of the circumstances which in their view justified Matznetter ’ s prolonged detention on this ground was, with respect, not a reasonable one.

In the first place, I should like to stress that, as a justification for pre-trial detention, danger of repetition of offences stands in a different light from danger of absconding. This latter danger may prevent the trial itself from actually taking place and the primary aim of pre-trial detention is to ensure that the administration of justice is not frustrated or impeded. Even so, it should be perfectly clear, I think, that continued danger of absconding does not and cannot justify a detention which has already been prolonged beyond the limits of reasonableness. This is where bail definitely comes in, if it has not come in before, and the last part of Article 5 (3) (art. 5-3) is clear in this respect.

Danger of repetition of offences does not in general operate with the same justificatory force as danger of absconding and, as already stated, must be considered in a different light in the context of the evaluation of the reasonableness of a prolonged detention. In certain cases it may indeed provide even strong justification for a period of pre-trial detention, as for instance where it is feared that the detainee will, if released, pursue an attempted murder, disappointingly foiled, to its fatal conclusion. But in general and apart from such special cases, I think it is right to say that the justificatory character of this ground of detention is less both in intensity and extent than that of a danger of absconding. The prevention of crimes in general properly appertains to other agencies and instrumentalities. Moreover, there must reasonably be some relationship between the offence charged and the new offence or offences apprehended; otherwise, if this relationship were to be disregarded, the danger of commission of offences might as well justify the detention of any person having criminal propensities.

It appears therefore reasonable to say that, even when this danger actually justifies detention, its reduced justificatory force, in relation to danger of absconding, in general accelerates in point of time the onset of unreasonableness. It is against these general considerations that the reasonableness of Matznetter ’ s continued detention on this particular ground is to be assessed.

Danger of commission of new offences was in this case made to rest by the national judicial authorities on Matznetter ’ s alleged systematic and long-standing fraudulent activity. On Matznetter ’ s appeal against the refusal of his first application by the Investigating Judge, the Judge ’ s Chamber of the Regional Criminal Court of Vienna, on 10 February 1964 , in affirming the continued existence of this danger, remarked that Matznetter had not troubled himself about making good the damage caused by him. This is indeed most surprising, for making good the damage would actually imply an admission of guilt and it is inconceivable that this should even be considered in deciding on an application for provisional release. Moreover, I fail to see any real connection between the negative fact of not making good the damage and the positive fact of an apprehended commission of new offences.

From the decisions of the national judicial authorities, it seems clear that the apprehended new offences were of the same nature as those with which he was charged. But it is, to say the least, difficult to envisage in the particular circumstances of the case before us any real likelihood of a repetition of offences. Matznetter ’ s alleged victims were banks and it emerges quite clearly from the questioning of Judge Gerstorfer by two members of the Sub-Commission (Appendix IV to t he Commission ’ s Report, p 130 [*] that the case had received extensive publicity in Austria . Nor was there any refutation of Matznetter ’ s statement that the firms in the Schiwitz Group (with which he was connected) had been placed under the administration of the Bank, which was also the principal creditor and that his own office had been placed in the charge of an official trustee.

When Matznetter was finally released, after no less than two years, one month and twenty-three days, it is significant to note that no new circumstances had been brought to bear on the Court other than his serious illness (high blood pressure and heart damage). The decision of the Judges ’ Chamber of 8 July 1965 links up this health factor with the disappearance of both danger of repetition of offences and danger of absconding. But the argument therein brought forward that Matznetter was found to be medically unfit to serve sentence in the event of his conviction, while it indeed applied to danger of absconding in that it served in practice to eliminate it, did not however equally apply to danger of repetition of offences. If such danger had really existed so far, there was no special reason why it should there and then cease to exist simply because of the health factor, it being obvious that such fraudulent dealings as the production of false accounts do not require any special exertion. In my view, however, and in the light of the general observations set out above, there was no such danger sufficient to justify the detention complained of. My conclusion is that that detention did exceed the reasonable time laid down in Article 5 (3) (art. 5-3) of the Convention and that there was consequently a breach of that provision.

As to the other question, whether or not the procedure followed in the examination of Matznetter ’ s applications for release gave rise in the circumstances of the case to a breach of the Convention by reason of a violation of the principle of "equality of arms", I agree in substance with the negative conclusion reached in the judgment. However, inasmuch as wholesale reference has been made to what is stated in pages 43-44 paragraphs 22-25 of the Neumeister judgment, I feel I should add, with respect, that I do not necessarily subscribe to all the arguments therein adduced and in particular that contained in the last sub-paragraph of paragraph 23 "As to the Law".

[1] European Court of Human Rights, Series A, judgment of 27 June 1968 , pages 35 to 40.

[*]  As to the first paragraph of the operative provisions of the judgment.

[*]  Note by the Registry : the page reference is to the roneoed document.