INDIVIDUAL OPINION OF JUDGE A. FAVRE

(Translation)

My opinion differs from that of the majority of the Chamber on the interpretation of Article 5 (3) (art. 5-3) of the Convention (paragraph 9 of the judgment).

It follows from this provision that a person who is detained with a view to his explaining an offence, is entitled to trial within a reasonable time or to release pending trial. The question here in dispute concerns exclusively detention pending trial. What is in issue is whether the word "trial" as used in Article 5 (3) (art. 5-3) ("procédure" in the French text) includes the final judgment or only the judgment at first instance.

No one denies that the accused must benefit from the protection of the Convention during every phase of the proceedings leading to the final judgment. It seems natural and logical that this protection is secured to him by the application of those rules of the Convention which specifically govern arrest and detention on remand, rules which appear in Article 5 (1) (c) and (3) (art. 5-1-c, art. 5-3).

The judgment draws a distinction relating to the legal nature of detention on remand based on whether it is ordered or continued before or after the judgment at first instance. Such a distinction has no foundation in the Convention. In restricting the scope of Article 5 (3) (art. 5-3) to the detention which lasts up until the judgment at first instance, the judgment of the Court is not in conformity with those correct principles which are stated in point 8.

When confronted with texts which, though being drafted in two languages which are equally authoritative, do not exactly coincide, the Court must adopt the meaning of the rule which best corresponds to the purpose and object of the treaty. While the English text speaks in paragraph 3 of "trial", a word which appears there with three different meanings and whose scope may be disputed, as is to be seen in the judgment, the French text is more clear since it provides in unequivocal and very general terms that the person detained is entitled "d’être jugée dans un délai raisonnable ou libérée pendant la procédure".

The interpretation of this provision which most closely conforms with common sense is that which its purpose requires; now this purpose is to ensure the largest measure of protection to the accused who is detained on remand for as long as the proceedings (procédure) last, that is to say, until the final judgment.

The judgment of the Court is based on a belief that a narrow interpretation of Article 5 (3) (art. 5-3) can be maintained by considering that detention is justified, during appeal proceedings, by the conviction which has been pronounced. The question may be left open as to whether the provisions of Article 5 (1) (a) (art. 5-1-a) are applicable when a conviction is not yet res judicata. However, provisional detention may be ordered or continued during appeal proceedings lodged by the prosecuting authority after an acquittal. If there is a situation in which the accused deserves to benefit from the protection afforded by the Convention, this is it. Now the interpretation which is given by the judgment to the texts in issue denies him this protection. Does this mean that there is a lacuna in Article 5 (art. 5)? A correct interpretation of paragraph 3 would easily fill it as it would give complete effectiveness to this provision. As regards Article 6 (1) (art. 6-1) of the Convention, which is concerned with trial proceedings, it contains no reference nor allusion to detention. It is not therefore applicable to detention, which is governed only by Article 5 (art. 5).

Although the accused has formally benefited from the protection secured by Article 5 (3) (art. 5-3) up until the final judgment, this provision has been of no assistance to him for the reasons stated in the judgment, especially because of the danger of flight.