JOINT DISSENTING OPINION OF JUDGE S ROZAKIS, SPIELMANN AND JEBENS

1. We are unable to agree that there has b een no violation of Article 5 § 1 of the Convention. As a matter of principle, our opinion differs from that of the majority as this judgment opens the door to a relaxed approach in so far as justification for detention is concerned and reverses the spirit of subsidiarity, as solemnly reaffirmed at the Interlaken Conference in 2010.

Personal liberty is the principle and detention should be the exception

2. Article 5 § 1 of the Convention contains an exhaustive list of permissible grounds for deprivation of liberty. Detention is compatible with the Convention only in very specific circumstances. Only a narrow interpretation of those exceptions is consistent with the aim of that provision, namely to ensure that no one is arbitrarily deprived of his liberty (see, inter alia, Giulia Manzoni v. Italy , 1 July 1997, § 25 , Reports of Judgments and Decisions 1997 ‑ IV , and Vasileva v. Denmark , no. 52792/99, § 34, 25 September 2003).

3 . The present case concerns the overnight detention of the applicant in a sobering-up centre. The domestic authorities reasoned that the applicant ' s detention had been warranted by his physical appearance, which according to them, had been offensive to human dignity and public morals , under the influence of alcohol.

4 . However, (a) the domestic courts never determined whether the applicant had posed a danger to himself or to public safety, and (b) there was no evidence that the applicant ' s detention was called for as a measure of last resort, as the domestic authorities had failed to consider other measures that might have been sufficient for the protection of the public interest.

5 . Very few cases have arisen before the Court under Article 5 § 1 (e) concerning the detention of “alcoholics”. [1] I n the case of Witold Litwa v. Poland (no. 26629/95, ECHR 2000 ‑ III) the Court developed an approach which allows the lawfulness of the detention of an “alcoholic” to be assessed within the meaning of that provision. Adopting a relaxed approach , it stressed that Article 5 § 1 (e) applie d not only to cases of detention of “alcoholics” in the limited clinical meaning of the term, but also to cases of detention of persons under the influence of alcohol. [2] However, the Court insisted that , for the detention of such person to be considered “lawful” , two additional criteria had to be present: the person must have posed a danger to himself or to public safety, and the detention must have been a measure of last resort, after the domestic authorities had considered other measures but had found them to be insufficient for the protection of the public interest.

Neither of the se two criteria was complied with by the domestic authorities in the present case.

6. Resolving the factual circumstances of the case, the Court concludes in paragraph 44 that the applicant ' s arrest and subsequent detention in the sobering-up centre were effected on account of his conduct while in a state of serious intoxication, causing a disturbance in a public place and presenting a danger to other individuals or to himself. This finding is based on a disputed version presented by the Government, relying on written statements by a shop assistant and a shop security guard made almost four years after the events under consideration (paragraph 42). The factual findings of the Court go far beyond the findings of the domestic courts. This raises a methodological issue, which will be dealt with separately in the second part of the present dissenting opinion. It suffices to mention here that the sole justification for the applicant ' s detention in the sobering-up centre was his physical appearance, which, according to the domestic authorities, had been offensive to human dignity and public morals as a result of his inebriation.

7. In paragraph 43 of the judgment, the Court rightly states as follows:

“Although not disputing the State ' s interest in protecting public morality, the Court, having regard to the prominent place which the right to liberty holds in a democratic society, considers that detention of an individual for the mere reason that his physical appearance, under the influence of alcohol, presents an insult to public morals, is incompatible with the purpose of s ub-paragraph (e) of Article 5 § 1 of the Convention (see Witold Litwa , cited above, § 62) . An offensive physical appearance, standing alone, is not a sufficient ground upon which to justify detention; this rationale would be only a step away from introducing a system of compulsory confinement for any abnormal appearance which might be perceived by some as offensive or insulting to human dignity and public morality. Mere public intolerance or animosity cannot justify the deprivation of a person ' s liberty, particularly so because the loss of liberty produced by the detention is more than a loss of freedom from confinement, since it can engender adverse social consequences for the individual.”

Precisely for these reasons, and in contrast with the majority view, we are of the opinion that the applicant ' s detention in the present case cannot be considered “lawful” under Article 5 § 1 (e) of the Convention.

8. We would like to add that neither the domestic authorities nor the Government provided any examples of less severe measures which could have been considered for the applicant. In fact, it appears that the domestic law does not envisage such measures, providing no alternative to deprivation of liberty in circumstances similar to those in which the applicant found himself. [3]

Reversing the spirit of Interlaken

9. The present case raises an important issue of principle. It is, to the best of our knowledge, the first time that the Court has embarked on a factual investigation running counter to the spirit of Interlaken , where the principle of subsidiarity was solemnly reaffirmed.

1 0. In paragraph 42 of the judgment, the majority utters only timid regrets that in the present case the task entrusted to domestic courts needs to be done by the Strasbourg Court itself:

“... Bearing in mind the primary role played by national authorities, notably courts, in interpreting and applying national law, the Court finds it particularly regrettable that it has to resolve the difference of opinion between the applicant and the Government in a situation when, and this was the argument on which the Government strongly relied in their submissions, at no point in the proceedings did the domestic courts review the applicant ' s behaviour prior to his admission to the sobering-up centre, and determined whether it had presented a danger to the applicant ' s own or public safety, thus necessitating his detention in the sobering-up centre.”

11. Notwithstanding the fact that it finds the reasoning of the domestic courts “inexplicably inadequate” (paragraph 44) “puzzlingly [making] no express reference to the applicant ' s [allegedly] bizarre, offensive and aggressive behaviour as the main justificatio n for his detention” (paragraph 45) the majority conclude on the basis of highly disputable and disputed facts, supported by uncertain testimonial evidence (see above in paragraph 6 of our opinion), that the applicant ' s arrest and subsequent detention in the sobering-up centre were effected on account of his conduct in a state of serious intoxication, causing a disturbance in a public place and presenting a danger to other individuals or himself.

12. A t no point in the proceedings did the domestic courts review the applicant ' s behaviour prior to his admission to the sobering-up centre, or determine whether it had presented a danger to the applicant ' s own or public safety, thus necessitating his detention in the sobering-up centre. It follows that even though, as the Government submitted, other facts that could have warranted the authorities ' conclusion about the need to admit the applicant to the sobering-up centre may have existed, they were not mentioned in the domestic courts ' decisions and it is not the Court ' s task to establish such facts or to take the place of the national authorities who ruled on the issue of detention (see Korchuganova v. Russia , no. 75039/01, § 72, 8 June 2006, and Aleksandr Makarov v. Russia , no. 15217/07, § 128, 12 March 2009 ).

13. This judgment is a dangerous precedent, undermining as it does the spirit of Interlaken .

[1] Witold Litwa v. Poland , no. 26629/95, ECHR 2000 ‑ III; Hilda Hafsteinsdóttir v. Iceland , no. 40905/98, 8 June 2004.

[2] In his concurring opinion, Judge Vanni Bonello rightly critici s ed the reasoning of the majority in the following terms:

“...

The majority has agreed, firstly, that the term “alcoholics” should be understood in its ordinary meaning (persons suffering from a clinical addiction to alcohol); secondly, that it is impermissible to add to the exhaustive list of exceptions set out in Article 5; and, finally, that only a restrictive interpretation should be given to the term “alcoholics”. It then, surprisingly in my view, proceeds to distort substantially the ordinary meaning of “alcoholics” to make it coextensive with, and inclusive of, persons who are well outside the category of “alcoholics” and belong to an extrinsic group – those temporarily under the influence of alcohol. Both are lumped together uncomfortably in the same basket.

This approach is, in my view, as anomalous as it is dangerous. The Court has, for the first time ever, and with a vengeance, departed from a healthy tradition, so far nurtured with religious fervour, of not adding to the list of exceptions which justify deprivations of liberty. The present judgment is a quantum leap backwards I cannot bring myself to take. And this novel approach is alarming in so far as once the process of augmenting the list of reasons justifying a deprivation of liberty has been set in motion, there is no guessing where it will stop. Before, only alcoholics could lawfully be deprived of their liberty. Now it is alcoholics and intoxicated persons. Tomorrow?

This is a far cry from “interpreting the Convention as a living instrument”. I am all for expanding the horizons of the Convention, so long as this dilation pursues the purposes of strengthening the Convention's aims: that of promoting and reinforcing the rule of human rights law. In the present instance, the result achieved was manifestly the opposite. It appears to me as judicial activism to restrict the compass of the enjoyment of human rights. The majority has now vested additional powers in governments to deny persons their freedom. It has substantially abridged the protection of the individual. This hardly squares, in my view, with “interpreting the Convention as a living instrument”.

I am aware that even persons who are not alcoholics, but in a transient state of intoxication, can pose a danger to themselves and to others. I favour measures restraining their ability to inflict injury. Enactments aimed at controlling their harmful potential would receive all my support. These would include their being escorted to their place of abode, or to hospital as the case may be, depriving them of the use of their vehicles and prosecuting them for nuisance and disorderly conduct should that be the case. Where I – and I believe the Convention – draw the line is at norms which allow persons who are not alcoholics to be arrested and detained when they have not committed any criminally relevant act.”

[3] Of course we do not underestimate the serious problem which is plaguing Russian society. Russia ’s rate of alcohol consumption has been among the highest in the world. According to the Bureau of European Affairs, s ome 15 million is the conservative estimate of the number of chronic alcoholics in Russia . The number of heavy drinkers is three or four times higher. Many heavy drinkers, who would be classified as alcohol - dependent in other countries, go undiagnosed and untreated in Russia . One study suggests that between 1987 and 1992 the annual per capita consumption of alcohol rose from about 11 litres of pure alcohol to 14 litres. Consumption in the late 1990s was estimated to be 15 litres of pure alcohol per Russian. The World Health Organisation suggests that 8 litres of pure alcohol per person per year is likely to cause major medical problems. Among the adverse consequences: between 25,000 and 40,000 deaths in Russia annually from alcohol poisoning, and shortened life expectancy. Alcoholism, particularly among men, is the third leading cause of death after cardiovascular diseases and cancer. For various reasons, Russian men born in 1999 have a life expectancy of only 59.8 years, four years less than those born in 1990. It seems that the sobering-up centres are considered to perform an important social function: they take off the streets drunken individuals who endanger or are liable to endanger themselves or the public. Accordingly, the attitude of Russian society to the sobering-up centres is also twofold.