JOINT CONCURRING OPINION OF JUDGES GÖLCÜKLÜ, MATSCHER AND PETTITI

(Translation )

In our opinion, Article 48 of the Convention gives a State the right to limit the matter it refers to the Court in a case to one or more of the complaints on which the Commission has expressed an opinion (in the present case the complaint relating to a violation of Article 5 § 1) in so far as any such complaint is a separate one based on different facts and is accordingly separable from the case as a whole. In our view, that can be inferred from general principles of procedure. It also corresponds in substance to what the Court decided in the Loizidou v. Turkey judgment of 23 March 1995 ( preliminary objections ), Series A no. 310, p. 47, § 54, and the Nsona v. the Netherlands judgment of 28 November 1996, Reports of Judgments and Decisions 1996-V, p. 2007, § 115.

Further, we do not believe that the terminology used in Articles 28 (b), 32 § 1, 43, 45 and 47, the French text of which uses the general term “case”, weakens the validity of the above argument, especially as the purpose of the provisions cited is not to circumscribe the object and scope of the dispute submitted to the Court. We also note that in places the corresponding English terminology is different.

With regard to the complaint in question, as the Court found no violation, the problem is rather theoretical in the present case.

That is why we voted with the rest of the Chamber on the question (point 1 of the operative provisions), even though, in our opinion, it is compatible with the Convention system to refer a single complaint to the Court.

JOINT PARTLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGES LOIZOU AND S ir J ohn FREELAND

1 . We are in agreement with the majority of the Court on all its conclusions except that of holding that there was no violation of Article 5 § 1 (c) of the Convention. On the contrary, in the light of the relevant facts we conclude, as the Commission did unanimously, that there was a breach of that provision.

2 . The reason for our conclusion is that the evidence relied upon by the Government for justifying the arrest and detention of the applicant was insufficient to substantiate the claim that the authorities had a “reasonable suspicion”, within the meaning of Article 5 § 1 (c), that the applicant had committed an offence (see the Murray v. the United Kingdom judgment of 28 October 1994, Series A no. 300-A, p. 27, §§ 55–57).

Having a “reasonable suspicion” presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence. What may by regarded as “reasonable” will however depend upon all the circumstances. For the ascertainment of whether the essence of the Convention safeguard has been secured, it is incumbent upon the Government to furnish at least some facts or information capable of satisfying the Court that the applicant was reasonably suspected of having committed the alleged offence (see the Fox, Campbell and Hartley v. the United Kingdom judgment of 30 August 1990, Series A no. 182, pp. 16 and 18, §§ 32 and 34).

3 . The salient facts are that the police had ascertained by their visit to the scene that stones had been thrown against the applicant ’ s shop and that its windows had been smashed. They had been informed about this incident by an anonymous telephone call and on arrival at the scene they had observed the damage and made a damage assessment report. When the applicant arrived at the scene some three hours later he asked that the premises be searched again before he opened the shop. He named the persons he suspected of the attack, including H.A., but decided against lodging a complaint and left the police station. Subsequently, however, he returned to the police station with two spent cartridge cases which he claimed to have found in the shop, lodged a complaint and demanded the arrest of H.A. Shortly afterwards, when a police team had gone to the shop and found no evidence of shots having been fired there, he was placed in custody on a charge of producing false evidence. He was not released until some time the next day.

Six months later the Adana public prosecutor instituted proceedings in the Adana Criminal Court against the alleged perpetrator of the attack on the shop for “threatening use of a firearm, criminal damage and an offence under the Firearms Act”. No criminal investigation was opened to examine whether the applicant had produced false evidence to the police and breached the provisions of the Criminal Code on which the Government rely. Moreover, the tenor of the covering letter of Chief Inspector Tunç to the security police headquarters and the ensuing events (see paragraphs 14, 15 and 16 of the judgment) do not suggest the existence of a level of suspicion sufficient to amount to a “reasonable suspicion of having committed an offence” so as to justify detention in order to further a criminal investigation.

4 . In the circumstances, we are not satisfied that the respondent State has discharged the burden of proof incumbent upon it.

[1] . This summary by the registry does not bind the Court.

[2] Notes by the Registrar

. The case is numbered 127/1996/945/746. The first number is the case’s position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case’s position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[3] . Rules of Court A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol. They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[4] . Note by the Registrar . For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1997), but a copy of the Commission’s report is available from the registry.