PARTLY DISSENTING OPINION OF JUDGE MYJER

My colleagues found in this case a violation of Article 5 § 3 of the Convention. I disagree with that decision for the following reasons.

I am of the opinion that the Government rightly put forward that the applicant had also lost his victim status as far as Article 5 § 3 is concerned. In its judgment of 2 September 2004 the Oldenburg Regional Court expressly stated that in the applicants’ case Article 6 § 1 and Article 5 § 3 had been violated. It sentenced the applicant to six years and six months imprisonment, while adding that, having regard to all the factors aggravating and mitigating the applicants’ guilt, it would have sentenced the applicant to nine years’ imprisonment if the proceedings had been terminated within a reasonable time.

My colleagues found that in its judgment the Oldenburg Regional Court did not specify to what extent exactly the finding of an violation of Article 5 § 3 had entailed a measurable reduction of the applicant’s sentence. In the specific circumstances of the case I consider this to be an artificial approach. In a case like this the violation of Article 5 § 3 (a person in detention in remand has the right to a trial within a reasonable time) and Article 6 § 1 (in the determination of a criminal charge against him everyone has the right to a hearing within a reasonable time) are interconnected. The requirement of a speedy trial, as laid down in Article 5 § 3 is a kind of lex specialis to the overall requirement of a speedy trial as laid down in the lex generalis of Article 6 § 1: when a person is detained in remand, the hearing should be particularly speedy. In this case the two periods to be taken into account more or less coincide. In my opinion one overall ‘overtime’-reduction in the sentence suffices. Further specifications can be kept out of the books.