CONCURRING OPINION OF JUDGE MATSCHER

(Translation)

I have voted with all the other members of the Chamber in favour of holding that there has been no violation of Article 5 para. 1 (art. 5-1) even though, in the Chamber ’ s view, the applicant ’ s deprivat ion of liberty from 25 February to 15 May 1990 was justified under sub-paragraph (a) and sub ‑ paragraph (c) of Article 5 para. 1 (art. 5-1-a, art. 5-1-c) and, in the light of that conclusion, it was no longer necessary to consider whether sub-paragraph (e) (art. 5-1-e) also applied in the case.

Whilst I have some doubts as to whether sub-paragraph (c) (art. 5-1-c) was applicable, I am convinced that either sub-paragraph (a) (art. 5-1-a) or sub-paragraph (e) (art. 5-1-e) applied, the fulfilment of any one of the conditions set forth in sub-paragraphs (a) to (f) of Article 5 para. 1 (art. 5 ‑ 1 ‑ a, art. 5-1-b, art. 5-1-c, art. 5-1-d, art. 5-1-e, art. 5-1-f) being sufficient to justify a deprivation of liberty.

CONCURRING OPINION OF JUDGE REPIK

(Translation)

I concurred with the majority in the operative provisions of the judgment but for reasons that are partly different; in my opinion, only sub ‑ paragraph (c) of Article 5 para. 1 (art. 5-1-c) is applicable in the instant case and not sub-paragraph (a) (art. 5-1-a) as well.

In principle, the two grounds for det ention referred to in those sub ‑ paragraphs (art. 5-1-a, art. 5-1-c) are mutually exclusive. The reference to the X v. the United Kingdom judgment (in paragraph 76 of the judgment) is irrelevant, as that case concerned sub-paragraphs (a) and (e) taken together (art. 5-1-a, art. 5-1-e), not (a) and (c) (art. 5-1-a, art. 5-1-c).

Sub-paragraph (c) of Article 5 para. 1 (art. 5-1-c) permits deprivation of liberty only in conne ction with criminal proceedings [4] before conviction and sentence, even a conviction and sentence that have not y et become final and enforceable [5] . Under sub-paragraph (a) (art. 5-1-a) on the other hand, a person may be detained only after conviction and the imposition of a penalty or other measure depriving him of his liberty. The word "after" does not simply mean that the detention must follow the conviction in point of time: in addition, the detention must result from, follow and depend upon or occu r by virtue of the conviction. In short, there must be a sufficient causal link between t he conviction and the detention [6] . Where the conviction and sentence are not yet final and enforceable, the Court has found such a link to exist where the imposition of a penalty or other measure entailing deprivation of liberty justified (unlike, for example, an acquittal) ordering the detention or continued detention of the person concerned.

In the instant case the detention in issue began after the measure ordered in the decision of 12 January 1985 had been carried out in full. The applicant could no longer be held under that order, and a new court order, made on lawful grounds, was required if the detention was to be justified. There no longer remained any causal link between the initial " conviction" and the detention. Besides, the Court has not said what the causal link between the conviction and the detention was (see paragraph 85 of the judgment).

The applicant was detained in connection with criminal proceedings in respect of an offence of which he had been found guilty in an earlier judgment, pending a decision on whether or not the measure originally ordered should be extended, that is to say whether an additio nal penalty should be imposed. A decision to continue the meas ure must also be a "conviction" [7] . The situation is similar to that obtaining in systems where there is a gap in criminal proceedings between the finding of guilt (conviction) and the imposition of a pena lty or other measure (sentence) [8] . The detention in issue was therefore ordered in the context of criminal proceedings before any second "conviction", the validity of the first order having expired. There was a connection between the detention and the offence for which the criminal proceedings were continuing, but no causal link with the initial "conviction", as the detention did not result from, follow or depend upon or occur by virtue of it.

It seems to me that the protection of individual freedom would be jeopardised if the link between "conviction" and detention were to be so weakened as to amount to no more than that the detention must follow the "conviction" in point of time.

[1] The case is numbered 102/1995/608/696.  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.

[2] Rules of Court B, which came into force on 2 October 1994, apply to all cases concerning the States bound by Protocol No. 9 (P9).

[3] For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1997-III), but a copy of the Commission's report is obtainable from the registry.

[4] See the Ciulla v. Italy judgment of 22 February 1989, Series A no. 148, p. 16, para. 38.

[5] See the B. v. Austria judgment of 28 March 1990, Series A no. 175, pp. 15-16, para. 39.

[6] See the Van Droogenbroeck v. Belgium judgment of 24 June 1982, Series A no. 50, p. 19, para. 35.

[7] See the aforementioned B. v. Austria judgment, p. 15, para. 38.

[8] See, for example, J. Pradel, Droit pénal comparé, Paris , Dalloz 1995, pp. 528 et seq.