S EPARATE OPINION OF J UDGE L. L OUCAIDES

I agree that there has been a violation of Article 5 § 3 in this case but I confine my reasoning for such a finding only to the breach of the duty of “special diligence” enshrined in Article 5 § 3 of the Convention.

As rightly observed in the judgement of the Court in the case of I.A. v. France ( judgment of 23 September 1998 , Reports of Judgments and Decisions 1998-VII, pp. 2978-79, § 102 ):

“ It falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of re spect for individual liberty ... ” .

To the delays referred to in paragraph 111 of the judgment (see also § 133) I would also add the delay caused by the judgement of the Criminal Court of 30 April 1998 , which was quashed by the Court of Criminal Appeal on 3 May 2000 . I believe that the annulment of this judgment mean s that the period between its adoption a nd its quashing (2 years) was caused by a wrong judgment for which the judicial authorities , and not the applicant, were responsible.

A person in detention under Article 5 § 1 (c) of the Convention, like the applicant , is presumed innocent and may eventually be acquitted. Therefore , any pre-trial detention depriving him of his liberty is an exceptional measure which must be applied only when it is absolutely necessary and should be limited in time as much as possible. This did not happen in the present case and therefore I find a violation of Article 5 § 3.

However, I do not agree with the majority that certain grounds invoked in support of the applicant ' s detention ceased to be valid. In particular , the majority found that the risk of absconding diminished with the lasting of the pre-trial detention. In this respect , reference was made to the Constitutional Court ' s argument that the circumstance that the applicant ' s family lived in Malta militated against the danger of flight. However , the Constitutional Court did at the same time point out that

“ ... the seriousness of the charges brought against the applicant and the fact that he was about to face a trial by jury on charges of drug trafficking militated in the opposite direction”.

I also give particular weight to this point.

Furthermore, I disagree with the view that the longer a pre-trial detention lasts , the more remote the possibility of the suspect absconding is. On the contrary , I believe that the passage of time during a pre-trial detention increases the feelings of fear and oppression of a suspect and the threat of him being found eventually guilty, especially in serious cases like the present one , in which the evidence is collected by the prosecution by progressing in the investigations .

Even if sufficient reasons for det aining the applicant c ontinued to exist , the authorities were not absolved from their duty to conduct the investigations and the relevant proceedings connected with the pre-trial detention with special diligence . I n my opinion, they failed to discharge this duty .