PARTLY DISSENTING OPINION OF JUDGE WOJTYCZEK

1 . I respectfully disagree with the majority on the question whether Articles 8 and 9 have been violated in the instant case.

2 . This case raises difficult legal questions concerning the relationship between Articles 8 and 9 on the one hand, and Article 5 on the other, in the context of custody on remand and house arrest. I am aware that those questions may be dealt with in different ways and none of the possible solutions is fully satisfactory from the legal viewpoint.

3 . The applicant contested, as being contrary to the Convention, certain restrictions on his family life and religious freedom stemming from his house arrest.

4 . Custody on remand and house arrest entail various types of restrictions on the persons concerned. These restrictions touch upon the core of certain human rights, in particular personal freedom and privacy, and may sometimes entail an infringement of other human rights such as the religious freedoms of believers of some religions. The restrictions imposed are nonetheless permissible under the Convention provided that the different conditions laid down in this international treaty have been respected and, in particular, that the principle of proportionality has been observed.

5 . For the purposes of adjudication in the present case, it is necessary to distinguish between two types of limitation stemming from house arrest in particular. The first type consists of restrictions which are detachable from the house arrest and which can be applied during criminal proceedings even if that measure is lifted, for example, a prohibition on leaving the territory of the State. The second type consists of restrictions which are justified only as elements of the overall regime of the house arrest. The restrictions complained of belong to this second category. If house arrest is lifted there is no reason to prohibit the accused from visiting terminally-ill family members or from attending religious services.

6 . In the instant case, the Court rightly concluded that the length of the applicant ’ s deprivation of liberty (either in custody or under house arrest) could not be regarded as reasonable. The general regime of pre-trial detention was therefore found to be in breach of the Convention. This means that the whole set of restrictions intrinsically linked to the detention regime (custody or house arrest) were considered contrary to the Convention. However, at the same time, some specific measures intrinsically connected with the detention regime were declared to be in conformity with the Convention. Likewise, the decisions of the domestic authorities not to ease the detention regime were also declared to be in conformity with the Convention.

7 . In my view, if house arrest as such lasts too long then the different restrictions intrinsically connected with that measure also last too long and cannot be justified under the Convention.

8 . I also have reservations concerning the reasoning under Article 9. It is obvious that custody on remand and house arrest entail restrictions on the religious freedom of the person concerned. Furthermore, specific circumstances of a criminal case may justify a complete ban on leaving the place of house arrest. At the same time, religious freedom requires that the national authorities take reasonable measures to ensure the access to religious services of persons placed under house arrest, taking into account – to the extent practically possible – the specificity of each religion and the religious obligations of the believers. In my view, a stronger emphasis should have been placed upon this obligation. The determination of the scope of this obligation requires that a fair balance be struck between colliding legal goods. In this balancing process it is necessary to take into account, among other factors, the practical difficulties and the burden on the authorities.

9 . I am not sure that the lack of possibility for the applicant, during his house arrest, to attend holy M ass did not interfere with the essence of his right. Such interference may, however, be compatible with the Convention, in the context of house arrest. In the instant case, it is important to note, among different relevant factors, the gravity of the charges against the applicant and the fact that his request for leave to attend religious services had been formulated in general terms.