CONCURRING OPINION OF JUDGE RANZONI

I fully agree with the finding of a violation of Article 5 § 4 of the Convention. However, this finding does not answer all the questions raised in the present case, as it leaves the underlying problem unaddressed. I would like to briefly highlight this aspect.

The review proceedings before the Court of Appeal on the lawfulness of the applicant ’ s remand detention lasted six and a half months from the initiation of these proceedings on 24 October 2014 until the delivery of its decision on 15 May 2015. The time period between the Court of Appeal ’ s previous decision of 28 July 2014 and this latter date was considerably longer, namely nine and a half months.

The finding of a violation of Article 5 § 4 puts the blame on the Court of Appeal, which did not display the necessary diligence and did not comply with the speediness requirement of this provision (see, in particular, paragraph 41 of the judgment). With this finding, however, the Court does not deal with the more important underlying problem, namely the lacuna in the German legislation which enabled that to happen.

Pursuant to Article 122 § 4, second sentence, of the Code of Criminal Procedure, where remand detention exceeds six months, review proceedings must be conducted no later than every three months thereafter, starting from the date of the last review decision (see paragraph 21 of the judgment). This provision, in principle, meets the requirement that, where an automatic review of the lawfulness of detention has been instituted, the competent courts ’ decisions must follow at “reasonable intervals” (see Oldham v. the United Kingdom , no. 36273/97, § 30, ECHR 2000-X), and it also provides an effective protection of the individual from arbitrary or unjustified deprivation of liberty, which is the key purpose of Article 5 of the Convention (see McKay v. the United Kingdom [GC], no. 543/03, § 30, ECHR 2006 ‑ X ).

That being said, pursuant to Article 121 § 3, first sentence, of the Code of Criminal Procedure, the running of time for the purpose of the three-month period under Article 122 § 4 is suspended if the case file has been submitted to the Court of Appeal prior to the expiry of this time-limit, and domestic law does not provide for a fixed time-limit by which the Court of Appeal must render its decision (see paragraph 21 of the judgment). This lacuna in the legislation was conducive to the excessive prolonging of the review proceedings at issue. Therefore, what is at stake here is the “quality” of the domestic law, which must contain clear and accessible rules governing the circumstances in which deprivation of liberty is permissible, and in particular, must be foreseeable in its application, in order to avoid all risk of arbitrariness (see Mooren v. Germany [GC], no. 11364/03, § 76, 9 July 2009, and H.W. v. Germany , no. 17167/11, §§ 66 and 80, 19 September 2013) .

By contrast, Article 121 § 3 of the Code of Criminal Procedure, authorising as it does the suspension of the running of time for the purpose of the three-month period, introduces an element of uncertainty in the application of Article 122 § 4, which requires a regular review every three months. The time frame in which the Court of Appeal has to take its decision on the deprivation of liberty is not defined. This raises concerns as regards the foreseeability of the provisions governing the periodic review of the lawfulness of the applicant ’ s remand detention, and may, in turn, raise concerns as to the lawfulness, for the purposes of Article 5 of the Convention, of the remand detention itself.

In these circumstances, affording detainees adequate safeguards against unreasonable delays and arbitrary detention is of crucial importance (see, mutatis mutandis , H.W. v. Germany , cited above, §§ 82 and 89). To my mind, such effective safeguards, however, were lacking in the present case. This conclusion is corroborated by the fact that the review proceedings were pending before the Court of Appeal for six and a half months, and the applicant ’ s remand detention was continued without a fresh assessment of its lawfulness for a period of nine and a half months.

In the case at hand, the delay in the review proceedings resulted in a violation of Article 5 § 4 of the Convention, but not of Article 5 § 1, because the relevant conditions for the latter provision to be engaged, according to the Court ’ s case-law, were not fulfilled (see in this respect, inter alia , Daniel Faulkner v. the United Kingdom , no. 68909/13, in particular §§ 44 and 45, 6 October 2016). Nevertheless, the interval of nine and a half months between the Court of Appeal ’ s decisions on the lawfulness of the applicant ’ s remand detention, despite periodic reviews being foreseen by domestic law no later than every three months, without the detainee being afforded effective safeguards against unreasonable delays, raises an issue which goes beyond the shortcomings detected in this specific case in the proceedings before the Court of Appeal. This issue should be dealt with at domestic level by legislative means.