DISSENTING OPINION OF JUDGE WALSH

1.   Under the Convention no person is obliged to provide a justification for his right not to be deprived of his liberty. It is for those who deprive him of that right to justify their actions. Any "justification" put forward by the detainer must be treated as a nullity unless it is one which does not contravene the provisions of the Convention even if it is in accord with the national law.

2.   The reasons put forward to justify the detention complained of in the present case are all conclusions of fact devoid of any factual evidence put forward to support them. As no factual evidence was offered in the national courts to justify the conclusions the applicant was thereby deprived of the opportunity of challenging "such facts" (if any such existed).

3.   It appears to me that conclusions expressed were entirely based on a speculative and intuitive approach on the part of the national judicial authorities. Such an approach cannot be a substitute for evidence. Neither does it offer any meaningful respect for the presumption of innocence guaranteed by the Convention. That presumption does not permit of any a priori assumption that every person reasonably suspected of or charged with a criminal offence will seek to evade justice either by flight or by interference with the witnesses or the evidence.

4.   The Convention contemplates provisional liberty being available to such persons and contemplates that in appropriate circumstances certain conditions may be attached to such liberty including financial conditions by way of security against evading justice. It follows that any such condition must not be so unreasonable in all the circumstances, including the means of the detained person, as to be effectively a refusal.

5.   In the present case the conditions initially imposed on the applicant could not be met by him and so he remained in detention. He had been ordered to pay FRF 400,000 as security against the possibility of non-appearance at the trial and, more dubiously, payment of another FRF 400,000 to guarantee payment of any costs or fines which he might be ordered to pay in respect of a conviction on the charges for which he had not yet been tried. This was not compatible with the presumption of innocence. That eventually he was released upon payment of a first instalment of 100,000 francs highlights the unreasonableness and the prohibitory character of the initial demand. The fact that he had not paid the initial demand had been offered as one of the justifications for refusing an earlier release.

6.   As no evidence had been offered in the national courts on the intentions of the applicant or of his probable attitude to the question of evading justice, or evidence which could reasonably support an inference that he would probably seek to evade justice, I am of the opinion that the surrounding circumstances fully justified the opinion of the Commission on this point as set out in paragraphs 51, 52 and 53 of the Commission ’ s report. The Commission was not seeking to re-interpret any evidence offered to the national courts but were simply drawing legitimate inferences from uncontested material.

7.   In my opinion the applicant has been the victim of a breach of Article 5 para . 1 (art. 5-1) of the Convention.

[*]  The case is numbered 45/1993/440/519.  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.

[*]   Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) and thereafter only to cases concerning States not bound by that Protocol (P9).  They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[*]  Note by the Registrar.  For practical reasons this annex will appear only with the printed version of the judgment (volume 296-C of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.