PARTLY DISSENTING OPINION OF JUDGE MULARONI

I voted against finding of a violation of Article 5 § 1 of the Convention for two different reasons.

1. Unlike the majority, I consider that the issue of the prolongation of a person ' s detention is covered by Ukraine ' s reservation under Article 5 § 1 of the Convention.

The said reservation provides as follows (see paragraphs 56 and 57 of the judgment):

“... 2. The provisions of Article 5 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 shall apply in the part that does not contravene paragraph 13 of Chapter XV of the Transitional Provisions of the Constitution of Ukraine and Articles 106 and 157 of the Code of Criminal Procedure of Ukraine concerning the detention of a person and the issue of an arrest warrant by a public prosecutor .

Such reservations shall be in force until appropriate amendments to the Code of Criminal Procedure of Ukraine are introduced or until the adoption of the new Code of Criminal Procedure of Ukraine, but not later than 28 June 2001 .”

Paragraph 13 of Chapter XV of the Transitional Provisions of the Constitution of Ukraine of 26 June 1996 provides as follows:

“... 13. The existing procedure for the arrest, custody and detention of persons suspected of committing an offence, and the procedure for carrying out an inspection and search of a person ' s home and other property, shall be retained for five years after the entry into force of the present Constitution.”

The majority have recalled that the Court held in its previous decisions that, having regard to the terms of the reservation under Article 5 § 1, Ukraine was under no Convention obligation to guarantee that the initial arrest and detention of persons be ordered by a judge (see paragraph 112 of the judgment). I fully share such a conclusion. However, in this judgment the Court has concluded that the issue of continued detention was not covered by the reservation, as it did not refer to Article 156 of the Code of Criminal Procedure (see paragraph 114 of the judgment).

Firstly, I observe that the reservation made by Ukraine under Article 5 § 1 of the Convention not only refers to Articles 106 and 157 of the Code of Criminal Procedure, but also to paragraph 13 of Chapter XV of the Transitional Provisions of the Constitution, which provides, inter alia , that “the existing procedure for the arrest, custody, and detention of persons suspected of committing an offence ... shall be retained for five years after the entry into force of the present Constitution”.

Secondly, Article 156 of the Code of Criminal Procedure at the material time concerned “ the terms for holding in custody”. However, the reason for the majority to find a violation of Article 5 § 1(c) of the Convention in relation to the first period (from 1 October 1997 to 1 November 1999) has nothing to do with the length of holding the applicant in custody; the reason is that the applicant ' s detention was extended on five successive occasions not by the court, but by the relevant prosecutors for periods from six to eighteen months, i.e. within the maximum statutory period of detention.

I cannot conclude therefore that Ukraine violated Article 5 § 1(c) of the Convention because the issue of continued detention was not covered by the reservation made by the respondent party under Article 5 § 1. It seems to me that the majority considers that there was a problem as to the lack of judicial control over the applicant ' s detention during the statutory term. However, I consider that this is an issue that has to be examined under Article 5 § 3 of the Convention. The Court reviewed this issue separately and unanimously found a violation of Article 5 § 3 in respect of the lack of prompt judicial review of the lawfulness of the applicant ' s continued pre-trial detention (see §§ 123 – 129 of the judgment).

I conclude therefore that the applicant ' s detention from 1 October 1997 to 1 November 1999 was lawful and consequently that there was no violation of that Article 5 § 1(c) of the Convention, as the Ukrainian authorities have complied with the statutory period of detention provided for by Article 156 of the Criminal Code of Procedure.

2. The majority also found a violation of Article 5 § 1(c) of the Convention in that the applicant was detained without lawful grounds from 16 to 22 February 2000 and from 22 to 23 February 2000, as the maximum statutory period of detention had expired.

However, having regard to the facts of the case and to the text of Articles 156 and 218 of the Code of Criminal Procedure, in force at the material time, I cannot conclude that the applicant ' s detention from 16 to 22 February 2000 was outside the statutory limit. In particular, I note that Article 156 provided that the time allowed for the applicant to familiarise himself with the case-file was not taken into account in calculating the overall period of the applicants ' pre-trial detention, on the one hand, and that the term of holding in custody could be prolonged in case of a new investigation, on the other hand (see paragraph 54 of the judgment).

I cannot conclude either that Article 5 § 1(c) was violated for the detention period from 22 to 23 February 2000 as the authorities “should have released him immediately in view of the expiry of the statutory period of detention” (see paragraph 120 of the judgment). Firstly, as I said just above, I cannot find that the applicant ' s detention from 16 to 22 February 2000 was outside the statutory limit. Secondly, I consider that the Court would take a much stricter approach to Ukraine than to other responding States should it find a one-day delay in release of a detainee unacceptable.

For these reasons, I conclude that Article 5 § 1(c) of the Convention was not violated as to the applicant ' s detention from 16 to 22 February 2000 and from 22 to 23 February 2000.

It goes without saying that the excessive length of the applicant ' s detention is a different issue. This aspect was examined under Article 5 § 3 of the Convention and the Court has unanimously found a violation in this respect (see §§ 130 – 138 of the judgment).

[1] . Mr Koval’s case is currently pending before the Court (see Koval v. Ukraine ( dec .), no. 65550/01, 30 March 2004).