PARTLY CONCURRING OPINION OF JUDGE MULARONI, JOINED BY JUDGE ZAGREBELSKY

I agree that there has been a violation of Article 5 § 3 of the Convention in the present case.

However, I come to this conclusion since I consider problematic the detention order of 6 December 2004, although not having any problem with the decision of 8 May 2004, concerning the applicant ’ s remand in custody for the initial three months period.

As to the last mentioned decision, I observe that the Krtsanisi ‑ Mtatsminda District Court in Tbilisi dismissed the applicant ’ s request for release on the following grounds:

“The collected evidence ... discloses a reasonable suspicion that the accused has committed the incriminated offences ... The evidence has been gathered in conformity with procedural norms ... Due regard should be had to the fact that the applicant is charged with serious crimes ... The case materials substantiate the suspicion that he might interfere with the establishment of the truth ... In view of the prospect of a severe punishment, (he) may abscond ... ” (see paragraph 12 of the judgment).

As pointed out in paragraph 64 of the judgment, the court order of 8 May 2004 justified the imposition of detention on the following grounds:

a) the case materials supported a reasonable suspicion that the applicant had committed the crime;

b) the evidence had been gathered in conformity with the law;

c) the severity of the sentence substantiated the risk of absconding; and

d) the case materials substantiated the risk that the applicant could hinder the investigation.

I would add a fifth element that according to the Krtsanisi ‑ Mtatsminda District Court justified the detention order:

e) the applicant was charged with serious crimes.

I share the majority ’ s view that the lawfulness of the collected evidence is, as such, irrelevant for establishing the reasonableness of detention (see paragraph 68 of the judgment). However, I consider that the four other grounds, taken together, could no doubt justify the detention order. A different conclusion of our Court would amount to a fourth instance decision.

I would add that it seems to me that a large part of the Court ’ s case-law quoted at paragraphs 63–70 of the judgment, which refers to the “persistence” of a reasonable suspicion, cannot be applied to the first decision concerning the applicant ’ s detention on remand.

Furthermore, I strongly disagree with the considerations expressed in paragraphs 66 and 67 of the judgment, as far as they refer to the detention order of 8 May 2004. I reiterate that the detention order of 8 May 2004 was duly reasoned and that it did not at all amount to an automatic remand in custody based solely on statutory presumption based on the gravity of the charges.

I agree instead with the majority as to the criticism in respect of the detention order of 6 December 2004, expressed in paragraphs 74 and 75 of the judgment. As to the considerations expressed in paragraphs 76 and 77, I agree with them exclusively insofar as they refer to the detention order of 6 December 2004.

[1] Here and elsewhere, approximate conversions are given in accordance with the exchange rate on 20 April 2007.