PARTIALLY DISSENTING OPINION OF JUDGE KALAYDJIEVA

To my regret I am unable to join the majority ' s conclusions on the overall length of the applicant ' s detention on a suspicion of a crime without a court order. The applicant was not represented by a lawyer and failed to specify the exact period of such detention and/or its classification under Article 5 of the Convention. The Court considered it as falling under Article 5 § 1 of the Convention – purpose and lawfulness of deprivation of liberty under the national law – and limited its consideration of the length of detention in the absence of a court order to the period which ended on 25 January 2002 with the order of the Town Court. In my view the question whether the applicant substantiated the exact hour (before or after 3 p.m. on 25 January 2002) when the first order was issued appears irrelevant for the actual period of detention without a court ' s order, since on this date the Town Court did not adopt any such decision.

Pursuant to Art. 165-2 of the Criminal Procedure Code the Town Court found itself unable “ to select a preventive measure in respect of [the applicant] and not only considered it necessary to examine additional material concerning [his] personality ... or to clarify the other circumstances that are important for the adoption of the decision on this matter ” (see Relevant Domestic Law), but also “ requested the investigator to provide more evidence that the applicant might abscond” (see paragraph 15). I would not dwell on the impartiality of this instruction, but only on the fact that on 25 January 2002 the court extended the order issued at “9.30 p.m. on that day by the police investigator (see paragraph 13)” for three more days – until 31 January 2002, when it determined the necessity of the applicant ' s detention for the first time. The extension of the applicant ' s detention on the order of an investigation officer was permissible by the domestic law provisions and resulted in an overall period of over 6 days of deprivation of personal liberty in the absence of a court ' s decision propriu moto . I have certain misgivings as to the compatibility of this situation both with Article 5 § 1 (c) as concerns the purpose of the detention and with the Article 5 § 3 of the Convention, which deals properly with the question whether the applicant was “brought promptly before a judge authorised by law to exercise judicial functions” in regard of the necessity of detention.

I find it important to express this opinion as it seems important for the Court to deal with issues which, in view of the on-going reform of the national system of criminal justice, may result in the necessary steps for harmonisation of the national law with the Convention.