CONCURRING OPINION OF JUDGE BUROMENSKIY

There is no doubt that in the case of Borisenko v. Ukraine a violation of Article 5 § 3 of the Convention takes place. Thus, I fully support the decision of the Court. However, thinking about legal consequences of applying of preventive detention regime in the context of Article 5 § 3 , which concerns the person who is imprisoned according to the court sentence, caused me to express some thoughts in this Opinion.

The main purpose of Article 5 is to protect the person from wilful infringement on personal freedom. At the same time, in my opinion, the concept of "personal freedom" cannot be examined abstractly. Article 5 protects the rights of "everyone", including arrested or detained persons (Weeks v. the United Kingdom, 2 March 1987, § 40, Series A no. 114), as well as "restrictions of freedom" or "imprisonment" must have a specific content (Engel and Others v. the Netherlands, 8 June 1976, § 59, Series A no. 22). Therefore, there cannot be an abstract notion of deprivation of liberty. Each kind of deprivation of liberty has its goals and is associated with the inherent limitations of freedom. All these restrictions are possible when based only on legal grounds and their applying is the subject to effective judicial control.

As the considered case witnesses, the prisoner ’ s guarding at place of preceding detention (SIZO) instead of the colony while the preliminary investigation is ongoing, is traditionally considered in the context of Article 5 § 1 (a) of the Convention.

In my opinion, there is a substantial difference in the legal nature of pre ‑ trial detention and imprisonment based on conviction, and therefore, in the legal consequences of these two types of deprivation of liberty. And the fact of deprivation of liberty in the first and second case does not allow speak about the identity of its grounds and conditions.

Pre-trial detention, as a kind of deprivation of liberty must be entirely subordinate to the goal of fair trial within a reasonable time. Correspondent legal guarantees are foreseen in Article 5 § 3 of the Convention. The period of preventive measure of pre-trial detention should be the minimum necessary to complete the proceedings, and I think, regardless of whether the measure is applied to a person not deprived of his liberty at the moment or to a person who has been imprisoned by a court sentence.

Imprisonment under a court sentence is also legitimate infringement of personal freedom, but of completely different type. The imprisoned person is deprived of his liberty within the regime defined in the court sentence. But the regime of imprisonment can not deprive of personal liberty as such. An imprisoned person always has and enjoys a certain level of freedom. (For example, according to Ukrainian legislation a person who committed for the first time a crime of medium severity should be sent to a colony with minimal or medium security level. In such colonies detainees have, although restricted, but adequate freedom of movement during the daytime, they receive money, they have right to spend their money, they have right to correspondence and right to visits of family members.) This fact is important, even when assessments of the level of freedom are purely subjective

There is no doubt that the need to transfer of the prisoner to a place of preventive detention (SIZO) due to new criminal proceedings against him may arise. But that is always associated with an interference in the process of enforcement of the sentence. The court that makes such a decision, in the nature of things, affects the level of freedom which the prisoner has - and to which he is entitled throughout the term of the sentence - but that does not affect the finding in the present case that, for the period from 1 February 2001 to 18 July 2003, Article 5 § 3 did not apply.