DISSENTING OPINION OF JUDGE BAKA

I fully share the opinion of the Court that there has been a deprivation of the applicant's liberty and similarly that his detention fell within the ambit of Article 5 § 1 (e) of the Convention. On the other hand I am unable to agree with the Court as far as the lawfulness of the detention is concerned. Consequently, I am of the opinion that there has been no violation of the Convention in the instant case.

I think that the correct interpretation of Article 5 § 1 (e) of the Convention requires not only reaching a practical and legally sound notion of the term “alcoholics”, but also that this term and its application should be in harmony with the previous jurisprudence of the Court.

For the purpose of Article 5 § 1 (e) a narrow interpretation of the term “alcoholics” could lead to a notion which is impracticable. If the police could only detain a person who is medically classified as addicted to alcohol, the provision would lose its practical impact because such information is not normally available to the police at the time of the required action. The police would be powerless against those persons who are not alcohol addicts but who are in a state of temporary intoxication, where a detention would be necessary to prevent a serious disturbance of public order or when the drunken person would endanger his own life and personal safety.

I do believe that the required protection against arbitrary detention lies not in the broader or stricter definition of “alcoholics” but in other elements. A person who is generally addicted to alcohol is not necessarily dangerous in a given “sober” moment; on the other hand, someone who is temporarily under the influence of alcohol could pose a serious threat to himself and to others. The danger is basically the same in these situations and I am of the opinion that at a given time a detention under Article 5 § 1 (e) could be justified in both cases.

In my opinion what is decisive is to prevent the arbitrary detention of a person belonging to either the broad or narrow category of alcoholics. That is why at the end of the day it is strictly required that the decision of the police to detain someone on this ground has to be based on objective medical expert opinion, as was required, inter alia , in the Winterwerp judgment : “The very nature of what has to be established before the ... national authority ... calls for objective medical expertise.” ( Winterwerp v. the Netherlands, judgment of 24 October 1979, Series A no. 33, pp. 17-18, § 39).

The Winterwerp judgment goes on to state that “in deciding whether an individual should be detained as a 'person of unsound mind', the national authorities are to be recognised as having a certain discretion since it is in the first place for the national authorities to evaluate the evidence

adduced before them in a particular case ...” (ibid., p. 18, § 40). I think this principle is also clearly applicable to the instant case.

In the present case the deprivation of liberty had an adequate basis. It is undisputed that the applicant was examined by a doctor shortly after the incident at the post office. It is also a fact that the doctor, on the basis of several physical signs of intoxication, came to the conclusion that the applicant was “moderately intoxicated” and, according to the domestic courts' findings, he was causing disturbance in a public place.

Taking into account the margin of appreciation of the domestic authorities, I can find no convincing argument for saying that the applicant's detention in the Kraków sobering-up centre for some six hours and thirty minutes was arbitrary and consequently unlawful under Article 5 § 1 (e) of the Convention.

[1] . Note by the Registry . The report is obtainable from the Registry.

[2] 1. Winterwerp v. the Netherlands, judgment of 24 October 1979, Series A no. 33, pp. 16-17, § 37. See also the Engel and Others v. the Netherlands judgment of 8 June 1976, Series A no. 22, p. 24, § 57.

[3] 2. Guzzardi v. Italy, judgment of 6 November 1980, Series A no. 39, pp. 36-37, § 98.