JOINT PARTLY DISSENTING OPINION OF JUDGES TÃœRMEN AND MULARONI

We do not agree with the majority who consider that there has been a violation of Article 5 § 3 in this case.

We are fully aware that a number of international texts recommend that prison detention for minors should be a measure of last resort for dealing with juvenile delinquency. We completely share the spirit behind all the declarations, conventions and recommendations adopted in this respect.

However, we observe that all these texts admit the possibility for minors to be detained in prison, although as a measure of last resort and, as far as detention on remand is concerned, for limited periods (see paragraphs 17 ‑ 21 of the judgment). The Rec ommendation (2003)20 of the Committee of Ministers of the Council of Europe, for instance, provides for a maximum detention period in custody of six months before the commencement of the trial (see paragraph 18 of the judgment). Along the same line, Article 37 of the UN Convention on the Rights of the Child provides that the arrest, detention or imprisonment of a child may be used, for the shortest appropriate period of time, as a measure of last resort (see paragraph 21 of the judgment). The recommendation of the Committee of Ministers to Member States of the Council of Europe (no. (87)20), for its part, makes specific reference, in order to justify the remand in custody of minors, to “exceptional cases of very serious offences committed by older minors” (see paragraph 19 of the judgment).

This means, to our mind, that special attention must be paid to the specific circumstances of every individual case and to the personality of every single applicant.

We observe that Mr Nart, who was 17 years and 7 months old when he was arrested in connection with the present case, had already been found guilty of burglary in 1999. He had been sentenced to one month and fifteen days ’ imprisonment but, having regard to his age, his sentence had been first converted into a fine and then suspended.

In 2003, he had been found guilty of attempted burglary. He had been sentenced to 2 months and 20 days ’ imprisonment but, having regard to his age, his sentence had been again converted into a fine.

As to the present application, we observe that the applicant had been charged with armed robbery, a serious crime. At the end of the first hearing, which took place 48 days after his arrest, the applicant was released pending trial.

Having regard to the total duration of his detention, the applicant ’ s previous convictions for similar offences and the specific circumstances of the case, we consider that the applicant ’ s detention was in conformity with the “reasonable time” requirement of Article 5 § 3 of the Convention.

Contrary to the majority, we do not consider that the fact that the applicant was kept in a prison together with adults is a sufficiently strong element to conclude to the contrary. We completely agree that minors should not be detained in prisons with adults. However, it seems to us that, if a problem arises in this respect, it should be examined under Article 3 of the Convention rather than under Article 5 § 3.