JOINT DISSENTING OPINION OF JUDGES BRATZA AND CASADEVALL

We are unable to agree with the view of the majority of the Chamber that there was no violation of Article 5 § 3 in the present case.

The applicant was detained on remand for periods totalling nearly 3 years. Particularly strong reasons were in our view called for to justify such a prolonged period of pre-trial detention. As noted in the judgment, the judicial authorities in Poland relied on a number of features of the case as justifying the continued detention of the applicant – the strong suspicion against the applicant, the seriousness of the charge against him, the severity of the penalty which he faced and the fact that he was subject to the rules on recidivism. In addition, the respondent Government placed emphasis on the complexity of the case and the fact that it had been before the trial court and the Court of Appeal on two occasions. In our view, none of these reasons, whether considered alone or in combination, are sufficient to justify a total period of detention of such length.

While we accept that the reasonable sus picion against the applicant may have warranted his detention at the early stage of the proceedings against him, it is well-established that, after a certain period of time, the persistence of a reasonable suspicion against an accused no longer suffices and that any justification for his continued detention must be founded on other “relevant” and “sufficient” grounds (see, for example, Letellier v. France , judgment of 26 June 1991, Series A, no. 207, p. 18, § 35).

T he severity of the sentence faced is a relevant element in the assessment of the risk of abs conding or re-offending. However, the degree of that risk cannot be gauged solely on the basis of the severity of the offence and anticipated sentence (see Muller v. Franc e , judgment of 17 March 1997, Reports of Judgments and Decisions 1997-II, p. 388, § 43). Moreover, as is noted in the judgment, the Court has repeatedly held that the gravity of the charges cannot by itself serve to justify long periods of detention on remand . While the accusations against the applicant were of sufficient seriousness that the authorities could initially justifiably have consider ed that such a risk was established, we are unable to share the view of the majority that the gravity of the charges or the severity of the penalty to which the applicant was exposed served to justify his continued prolonged detention on remand.

The same applies to the reliance on the fact that the applicant was a recidivist and was subject to the rules on recidivism. The character of the accused and his previous behaviour are undoubtedly relevant factors for the domestic courts when they assess the risk of the applicant ’ s absconding or obstructing the proceedings (see Smirnova v. Russia , nos. 46133/99 and 48183/99, § 60, ECHR 2003 ‑ IX) . Nevertheless, in the present case, even if we could accept that the fact that the applicant was a habitual offender gave

rise to the risk that he might abscond, this could not in our view of itself justify the applicant ’ s detention throughout the entire period in question.

In this regard we recall that, when deciding whether a person should be released or detained, the judicial authorities are obliged under Article 5 § 3 to consider alternative measures of ensuring his appearance at trial. T hat provision not only proclaims the right to “trial within a reasonable time or to release pending trial” but also lays down that “release may be conditioned by guarantees to appear for trial” (see Neumeister v. Austria , judgment of 27 June 1968, Series A no. 8, p. 3 6 , § 3; and Jabł oński v. Poland , no. 33492/96, § 83, 21 December 2000). In the present case it is notable that , during the entire period the applicant was kept in detention, and despite his applications for release, the authorities never appear to have envisage d any other guarantees for his appearance at trial. Nor d o they appear to have give n consideration to the possibility of imposing on him any other “preventive measures” expressly foreseen by Polish law to secure the proper conduct of criminal proceedings (see paragraph 20 of the judgment ).

It is true that, as emphasised by the majority, the proceedings against the applicant were of a certain complexity and that two separate periods of detention on remand were involved, the applicant ’ s original conviction having been quashed on appeal. However, neither factor is in our view of decisive importance. What is important is that, whether continuously or not, the applicant remained in detention as an unconvicted person for an exceptionally long period, for which no sufficiently strong grounds of justification have been advanced.