PARTLY DISSENTING AND PARTLY CONCURRING OPINION OF JUDGE LEMMENS

1. To my regret, I am unable to follow my colleagues in finding that there has been no violation of Article 5 § 1 of the Convention.

Moreover, I have some doubts as to whether Article 5 § 4 is applicable to the proceedings before the County Court which led to its decision of 10 June 2011. I wonder whether it would not have been more appropriate, in the particular circumstances of the present case, to examine the relevant complaint under Article 5 § 3.

The County Court ’ s decision of 10 June 2011 - Article 5 § 1

2. I agree with the majority that the mere fact that the detention order issued by the Osijek County Court on 10 June 2011 did not set a time-limit for the applicant ’ s detention, although formally not in conformity with Article 103 of the Code of Criminal Procedure (CCrP), does not necessarily mean that the detention was unlawful.

3. The problem lies elsewhere.

As the majority rightly reiterate, “where deprivation of liberty is concerned, it is particularly important that the general principle of legal certainty be satisfied” (see paragraph 47 of the judgment). The key issue is whether it was clear, under Croatian law, for how long the applicant could be detained following the decision of the County Court.

The majority refer to Article 106 §§ 1 and 2 CCrP. Under these provisions, the initial detention could be ordered for a maximum period of one month, a first extension could be ordered for a maximum of two months, and a third and last extension could be ordered for a maximum of three months (paragraphs 23 and 54 of the judgment). The maximum duration of detention during the investigation could not exceed six months (Article 106 § 3 CCrP, quoted in Getoš-Magdić v. Croatia , no. 56305/08, § 65, 2 December 2010).

It is not difficult to calculate for how long the extension of a detention is valid where it concerns a continuous period of detention. However, in the applicant ’ s case the detention was interrupted. On 28 April 2011 an investigating judge ordered an initial one -month detention (see paragraph 7 of the judgment), which was valid until 27 May 2011. Three days before that date, that is, on 24 May 2011, the applicant ’ s release was ordered, and he was effectively released on that date (see paragraph 8 of the judgment). Later, on 10 June 2011, the Osijek County Court ordered the applicant ’ s pre-trial detention, and the applicant was again placed in pre-trial detention on 14 June 2011 (see paragraphs 10-11 of the judgment). From the moment that the indictment on 6 July 2011 was filed, the pre-trial detention was governed by a different legal regime. [1]

According to the majority, the detention was ordered for “a further two months” on 10 June 2011 (see paragraph 54 of the judgment). Why two months? The first one-month period had not been “used” up to its maximum duration. If the order in question is to be interpreted as covering a period of two months (i.e., a first extension), this would mean that the maximum duration of detention would ultimately be l ess than six months (namely six months minus the three days (25-27 May 2011) that were not “used” under the initial detention order).

Be that as it may, even if one accepts the majority ’ s view that the County Court ’ s decision of 10 June 2011 allowed for an extension of two months, the question arises from which date that period started to run: from 24 May (the date of the applicant ’ s release), 28 May (the day after the end of the one-month period covered by the order of 28 April 2011), 10 June (the date of the decision under review) or 14 June 2011 (the date of the applicant ’ s return to prison)? The majority do not pronounce on this issue. Nor do I find a clear and ambiguous answer in the law.

Having regard to the foregoing, I feel unable to conclude that when the applicant received the County Court ’ s decision of 10 June 2011 he should have been able to know exactly how long he could be kept in detention. I therefore feel compelled to conclude, on the basis of the elements mentioned in the judgment, that the said decision did not satisfy the condition of foreseeability.

For that reason, I voted against the finding that there has been no violation of Article 5 § 1.

The decision-making process leading up to the County Court ’ s decision of 10 June 2011 - Article 5 § 4, or should that be Article 5 § 3?

4. The applicant complained about the proceedings leading to the County Court ’ s decision of 10 June 2011 and alleged that there had been a violation of Article 5 § 4 of the Convention. The majority agrees that the complaint should be examined under Article 5 § 4.

I hesitate to follow the majority on this point.

5. Article 5 § 3 concerns the decision taken by “a judge or other officer authorised by law to exercise judicial power” on the question whether or not to order the pre-trial detention of a person. It is the decision by a judge or an officer “reviewing the circumstances militating for or against detention, ... deciding, by reference to legal criteria, whether there are reasons to justify detention and ... ordering release if there are no such reasons” (see Schiesser v. Switzerland , 4 December 1979, § 31, Series A no. 34). In other words, according to the Court, it is the decision by which the judge or the judicial officer considers “the merits of the detention” (see Aquilina v. Malta [GC], no. 25642/94, § 47, ECHR 1999 ‑ III; McKay v. the United Kingdom [GC], no. 543/03, § 35, ECHR 2006 ‑ X; Medvedyev and Others v. France [GC], no. 3394/03, § 124, ECHR 2010; and Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 98, ECHR 2016 (extracts)). [2] Since there is no legal obligation to place a suspect in pre-trial detention, that decision is partly an exercise of discretion.

Article 5 § 3 contains two limbs (see McKay , cited above, § 31, and Medvedyev , cited above, § 119). The first limb concerns the early stages of arrest and detention and applies in particular to the first decision by which a judge or judicial officer decides whether or not to place a person in pre-trial detention. In general a person is brought before a judge or judicial officer after having been arrested by the police or a prosecutor. The second limb concerns the continued detention pending trial. The initial as well as the continued detention are justified only insofar as there exist, in addition to a reasonable suspicion, relevant and sufficient reasons for it (see Buzadji , cited above, § 102). Fulfilment of these requirements is necessary for the lawfulness of the detention.

6. Article 5 § 4 guarantees to anyone who is deprived of his or her liberty the right to have the lawfulness of that detention reviewed by a court.

In principle, the review is triggered by an application by the detained person. This means that Article 5 § 4 comes or does not come into play, depending on whether or not the detained person institutes proceedings. However, where domestic law provides for an automatic periodic review of the lawfulness of a detention, such a review falls under the application of Article 5 § 4 and may satisfy its requirements (see X v. the United Kingdom , 5 November 1981, § 52, Series A no. 46).

As to the scope of the court ’ s review, Article 5 § 4 does not require a review “of such a scope as to empower the court, on all aspects of the case including questions of pure expediency, to substitute its own discretion for that of the decision-making authority. The review should, however, be wide enough to bear on those conditions which are essential for the ‘ lawfulness ’ of the detention” (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 202, ECHR 2009; Stanev v. Bulgaria [GC], no. 36760/06, § 68, ECHR 2012; and Khlaifia and Others v. Italy [GC], no. 16483/12, § 128, ECHR 2016 (extracts)).

Finally, it should be kept in mind that there may be an overlap between the guarantees of paragraphs 3 and 4 of Article 5. This is particularly true when the decision ordering or confirming deprivation of liberty (Article 5 § 3) is taken by a “court”: in that event the judicial control of lawfulness (Article 5 § 4) is incorporated in that decision (see De Wilde, Ooms and Versyp v. Belgium , 18 June 1971, § 76, Series A no. 12, and De Jong, Baljet and Van den Brink v. the Netherlands , 22 May 1984, § 57, Series A no. 77). This does not necessarily mean that in such a situation the compatibility of the decision with the Convention should be examined from the point of view of only one of these paragraphs. The guarantee assured by Article 5 § 4 is of a different order from, and additional to, that provided by Article 5 § 3 (see De Jong, Baljet and Van den Brink v. the Netherlands , cited above, § 57, and Shishkov v. Bulgaria , no. 38822/97, § 87, ECHR 2003 ‑ I (extracts)). [3] While the requirements of Article 5 § 3 may be respected, it may be that those of Article 5 § 4 are not.

7. In the present case, the investigating judge, as the “decision-making authority” in the above sense (see paragraph 6), on 31 May 2011 ordered the applicant ’ s release. When the County Court examined the State Attorney ’ s Office ’ s appeal against that order and when it adopted its decision on 10 June 2011 ordering the applicant ’ s pre-trial detention, it did so with respect to a person who was at liberty. It therefore seems that there was no detention in respect of which lawfulness had to be reviewed (see A. and Others v. the United Kingdom , cited above, § 200).

I am not sure that one can object to the above conclusion on the ground that the County Court was required to review the lawfulness of the extension of the detention based on the initial detention order of 28 April 2011. Indeed, the investigating judge had in th e meantime, by the orders of 24 May 2011 (immediately executed, albeit subsequently quashed) and 31 May 2011, ordered the applicant ’ s release, thus putting an end to the enforceability of his order of 28 April 2011. [4] It seems that, as a result of the applicant ’ s release, the link with the original detention order had been broken. Moreover, the appeal proceedings were directed against the order of 31 May 2011, not that of 28 April 2011. When the investigating judge decided on 31 May 2011 to order the applicant ’ s release, he had been dealing with the merits of the detention, as the “decision-making authority”.

In the given circumstances it seems to me that the County Court had to take a decision that could not be limited to a review of the lawfulness of the extension to the detention, but had also to concern the merits thereof. It was at that moment the “decision-making authority”.

Having regard to the fact that the applicant was at liberty as well as to the nature of the decision to be taken by the County Court, I believe that there was reason to examine the complaint from the perspective of Article 5 § 3.

8. By virtue of Article 5 § 3, the judge or judicial officer must himself or herself hear the person brought before him or her, before taking a decision (see Schiesser , cited above, § 31; De Jong, Baljet and Van den Brink v. the Netherlands , cited above, § 51; Nikolova v. Bulgaria [GC], no. 31195/96, § 49, ECHR 1999 ‑ II; and Aquilina , cited above, § 50). This did not happen in the present case, as the County Court decided the matter in a closed meeting in the parties ’ absence (see paragraph 10 of the judgment). In my opinion, the fact that the applicant was not heard by the judges who ordered him to return to custody is sufficient to find a violation of Article 5 § 3.

Whether or not the applicant had the opportunity to put forward any arguments concerning his detention and to answer the arguments put forward by the prosecution (see paragraphs 68-69 of the judgment) can, in light of the above conclusion, be seen as an issue of secondary importance.

9. Were the Court to have concluded that Article 5 § 3 is applicable and had been violated, there would in my opinion be no need to examine whether Article 5 § 4 is also applicable to the proceedings before the County Court and, if so, whether its requirements have been met.

10. Assuming, however, that Article 5 § 4 is (also) applicable, I agree with my colleagues that the court reviewing the lawfulness of detention must provide guarantees appropriate to the kind of deprivation of liberty in question. The proceedings must be adversarial and must ensure equality of arms between the prosecutor and the detained person (see, inter alia , Nikolova , cited above, § 58; A. and Others v. the United Kingdom , cited above, § 204; and Mooren v. Germany [GC], no. 11364/03, § 124, 9 July 2009). Moreover, in the case of a person whose detention falls within the ambit of Article 5 § 1 (c), a hearing with the parties is required (see paragraph 66 of the judgment; see also, inter alia , Nikolova , cited above, § 58; A. and Others v. the United Kingdom , cited above, § 204; and Idalov v. Russia [GC], no. 5826/03, § 161, 22 May 2012). [5]

I agree with the finding in the judgment that the defence was unable to present any arguments to the County Court, either in writing or orally, with the result that the applicant could not effectively exercise his defence rights (see paragraphs 68-70 of the judgment). Insofar as Article 5 § 4 is applicable, I agree with the conclusion that it has been violated.

11. To sum up, it would seem that the complaint relating to the proceedings before the County Court could have been examined from the point of view of Article 5 § 3, and that a violation of that provision could have been found.

Assuming that Article 5 § 4 is (also) applicable, I agree with the majority that it has been violated.

The Constitutional Court ’ s decision of 15 July 2011 - Article 5 § 4

12. Insofar as the judgment finds that Article 5 § 4 has been violated on account of the Constitutional Court ’ s failure to decide on the merits of the applicant ’ s constitutional complaint, I fully agree with it.

[1] See Article 107 § 2 CCrP, quoted in Getoš-Magdić , cited above, § 65: “After the indictment has been lodged ... a [judicial] panel ... shall examine every two months whether the statutory conditions for detention have continued to exist ...” Under this regime the three-judge panel of the County Court ordered further extensions on 8 July 2011 (paragraph 14 of the judgment) and 20 September 2011. It convicted the applicant on 27 October 2011, thereby converting the pre-trial detention (Article 5 § 1 ( c) ) into detention after conviction (Article 5 § 1 ( a) ) . The detention after 8 July 2011 is not in dispute.

[2] An examination of the “merits of the detention” includes an examination of such elements as the danger of absconding, the risk of pressure being brought to bear on witnesses or of evidence being tampered with, the risk of collusion, the risk of reoffending, the risk of causing public disorder and the need to protect the detainee (see Buzadji , cited above, § 88). Specifically with regard to the risk of absconding, the judge or other officer may have to consider such elements as the character of the person involved, his or her morals, assets, occupation, family ties, links with the State in which he or she is being prosecuted and the person’s international contacts ( see Neumeister v. Austria , 27 June 1968, p. 39, § 10, Series A no. 8 , and Buzadji , cited above, § 90).

[3] In Lebedev v. Russia (no. 4493/04, § 76, 25 October 2007), the Court held that the case - law concerning Article 5 § 4 was, “as a rule”, applicable to detention proceedings falling under Article 5 § 3. This is, in my opinion, too general a statement.

[4] The majority refer to Fodale v. Italy (no. 70148/01, § 40, ECHR 2006 ‑ VII) as a precedent for examining the case under Article 5 § 4 (see paragraph 65 of the judgment). In that case, however, the proceedings on appeal concerned the initial decision of the preliminary investigations judge to remand the applicant in custody , not a decision to release him. This is , in my opinion , a crucial difference with our case.

[5] The majority refer in paragraph 67 of the judgment to Article 6 of the Convention. It is true that a link with Article 6 is made , in practically identical terms, in a number of judgments, some of which are quoted by the majority (see, inter alia , Garcia Alva v. Germany , no. 23541/94, § 39, 13 February 2001; Lietzow v. Germany , no. 24479/94, § 44, ECHR 2001 ‑ I; Schöps v. Germany , no. 25116/94, § 44, ECHR 2001 ‑ I; and Fodale , cited above, § 42). However, the reference to Article 6 is , in my opinion , a bit confusing. If a certain degree of fairness is required in proceedings falling under Article 5 § 4, th is is not because Article 6 “has some application to pre-trial proceedings”, but simply because the proceedings under Article 5 § 4 are of a judicial nature.