DISSENTING OPINION OF JUDGES WALSH AND LOIZOU

1. The applicant was arrested on 27 March 1985 on charges of fraud. His trial opened on 17 February 1989 and concluded on 30 March 1989 . He had spent over four years in custody awaiting trial. During that period he had made eight unsuccessful applications to the Swiss courts for provisional liberty pending trial. He now claims that he was the victim of a violation of Article 5 para. 3 (art. 5-3) of the Convention.

2. The relevant Code of Criminal Procedure of the Canton of Berne provides in Article 111 that: "During the preliminary investigation the accused shall as a rule remain at liberty". That article is more fully set out in the judgment of the Court at paragraph 25. The investigating judge is however given power to keep the accused in detention if there are reasons "for supposing that there is a risk of absconding or that the accused would abuse his liberty in order to frustrate or endanger the discovery of the true facts of the matter, or that the accused, if he has intentionally committed a further criminal offence during the proceedings, will commit further criminal offences". Also a risk of absconding is to be presumed if the accused has no fixed address in Switzerland .

3. Article 5 para. 3 (art. 5-3) of the Convention enshrines the right to liberty pending trial and, sensibly, permits that liberty to be conditioned by guarantees "to appear for trial". It would be difficult to over-emphasise the stark consequences of refusing provisional liberty pending trial to the person who is accused of a crime (of which he is presumed to be innocent). He will most probably lose his employment, possibly lose his dwelling place, his family ’ s life can be totally disrupted and driven to penury, and even his marriage may be driven to point of breakdown. A person presumed to be innocent cannot in justice be exposed to such terrible consequences unless the reasons for so doing completely outweigh all other considerations.

Insensitivity to this serious problem in member States may be inferred from the fact that, according to the relevant statistics, the numbers of untried persons remanded to prison detention varies from 7% to 52% of the respective total national prison populations.

4. Judges deciding applications for provisional release from custody are expected to decide on evidence the issues raised. There should be no place for judicial speculation or judicial intuition as a substitute for objective evidence. The issues involved should be judged by the same objective standard which is the basis as all other justiciable controversies. The present case, as presented to the Court, does not reveal any record of witnesses having been heard on probability of the applicant absconding or interfering with the gathering of evidence or with the evidence already gathered. The suggestion in one of the Swiss courts that because his bad bookkeeping (referred to in paragraph 16 of the majority judgment) made investigation more difficult should militate against his provisional liberation is not a reason which should be put against him in the balance. Likewise his alleged failure to assist in the gathering of evidence against himself is also an untenable reason for supporting the refusal to grant him provisional liberty. It is always open to a court to impose conditions upon provisional liberty even to the extent of reporting daily to the police if there exists some suspicion of absconding. If there lingers some suspicion of interfering with the evidence a reasonable condition may be imposed restricting consorting with certain named persons or restricting access to certain offices or documents. None of that appears to have been considered seriously, if at all.

5. The most serious matter is the taking into account of the possibility of future offences. The reasoning underlying the submission is a denial of the whole basis of the Convention system of protection of liberty and the criminal process.

This submission transcends respect for the requirement of Article 6 (art. 6) that a man shall be considered innocent until he is found guilty and seeks to punish him in respect of offences neither completed not attempted. We say "punishment" because deprivation of liberty, frequently subject to more restrictive conditions than those applied to detention of convicted persons, must be considered as a punishment unless it can be shown that it is required to ensure that an accused person will stand his trial when called upon.

The presumption of innocence until conviction which is demanded by Article 6 (art. 6) is no empty formula. It is a very real thing and not simply a procedural rule taking effect only at the trial. Furthermore imprisonment before trial frequently has an adverse effect on a person ’ s prospect of acquittal because of the difficulty, if not the impossibility in many cases, of the accused and his legal advisers in adequately investigating the case and preparing the defence.

6. In our opinion the pre-trial detention of the applicant has not been shown to have been necessary or justifiable within the provisions of the Convention. The onus of proof is upon the detainer to justify it, and not upon the detainee to justify his being at liberty.

In our opinion there has been a breach of Article 5 para. 3 (art. 5-3).