CONCURRING OPINION OF JUDGE GRITCO

1. I fully agree with the conclusions reached by the Chamber in the present case. Nevertheless, I would like to point out some additional details which I consider relevant for the finding of a violation in respect of the applicant ’ s complaint under Article 5 § 1 of the Convention.

2. The key purpose of Article 5 is to prevent arbitrary or unjustified deprivations of liberty. Together with Articles 2, 3 and 4 of the Convention, Article 5 is in the first rank of the fundamental rights that protect the physical security of the individual and as such its importance is paramount (see McKay v. the United Kingdom [GC], no. 543/03, § 30, ECHR 2006 ‑ X). It is for this very reason that domestic legislation regulating deprivations of liberty must meet the highest standards of precision, clarity and foreseeability.

3. With that in mind, I note that the main dispute in respect of the applicant ’ s complaint under Article 5 § 1 in the present case is whether the Moldovan legislation regulating pre-trial detention was precise enough as to allow the applicant understand – if need be, with appropriate advice – what was the maximum length of detention pending trial which could be imposed on him (see Paladi v. Moldova [GC], no. 39806/05, § 74, 10 March 2009).

4. According to the 2001 text of Article 25(4) of the Constitution, the duration of detention pending trial is limited to a maximum of twelve months. However, the Government argue that this Constitutional provision is applicable only to detention during the investigation stage of the criminal proceedings. In other words, the Government maintain that the 2001 text of Article 25(4) of the Constitution does not regulate what happens after the criminal case has reached the trial stage. In support of their position, the Government rely on the interpretation given by the Constitutional Court to the 1994 text of Article 25(4) of the Constitution in a 1999 decision and argue that that interpretation is also applic able to the new text of Article 25(4) of the Constitution adopted in 2001. They also let it be understood that the 2003 Code of Criminal Procedure is compatible with the 1999 interpretation by the Constitutional Court of Article 25(4) of the Constitution.

5. On the face of it, the Government ’ s position could appear plausible if not for one problem. In particular, I refer to the case of Boicenco v. Moldova (no. 41088/05, 11 July 2006), a case in whic h the problem under Article 5 § 1 of the Convention concerned the applicabil ity of the 2001 text of Article 25(4) of the Constitution to detention during the trial stage of the proceedings. In that case the Government did not argu e that the 2001 text of Article 25(4) was not applicable to detention during the trial stage of the criminal proceedings and that that Article from the Constitution should have been interpreted in the light of the Constitutional Court ’ s decision of 1999. The Court has therefore expressly ruled that the manner in which the applicant ’ s detention had t a k en place during the trial stage of the proceedings, had been contrary to the 2001 text of Article 25(4) of the Constitution and found a breach of Article 5 § 1 of the Convention. Moreover, it is worth noting that after the adoption of the Boicenco judgment, as admitted by the Government in their observations, changes have been made to the Code of Criminal Procedure in such a way as to make it compatible with the “uninterpreted” 2001 text of Article 25(4) of the Constitution.

6. Thus, I note that in Boicenco the Government did not contest the applicability of the 2001 text of Article 25(4) of the Constitution to the trial stage of criminal proceedings, whilst in the present case they had an opposite approach. In the presence of the above obvious inconsistency in the approaches taken by the Government in the two cases, I cannot but feel uncertain about the applicant ’ s capability of understanding – if need be, with appropriate advice – what was the bearing of the 2001 text of Article 25(4) of the Constitution and thus what was the maximum length of detention pending trial which could be imposed on him. It is for this reason that I consider that the relevant domestic legislation falls short of the high standard of precision, clarity and foreseeability required of legislation regulating deprivations of liberty and I voted for a violation of Article 5 § 1 of the Convention.

JOINT DISSENTING OPINION OF JUDGES TURKOVI Ć AND KJØLBRO

1 . In our view, the applicant ’ s detention beyond a period of twelve months was not unlawful within the meaning of Article 5 § 1 of the Convention. Therefore, we voted against finding a violation of that provision. As the amount awarded in respect of non-pecuniary damage would have been significantly lower if the Court had found a violation of Article 3 of the Convention only, we voted against granting the applicant the award made by the Court under that head, even though we fully agree that he is entitled to compensation for the non-pecuniary damage sustained during the period of his detention in conditions violating Article 3.

2 . The applicant was arrested on 26 March 2008 and held in pre-trial detention until his conviction at first instance on 21 October 2009 (a total of one year, six months and twenty-five days). The applicant ’ s case was sent for trial on 5 September 2008. In other words, his detention during the investigation stage lasted for five months and ten days (from 26 March 2008 until 5 September 2008), and his detention during the trial stage lasted for one year, one month and sixteen days (from 5 September 2008 until 21 October 2009).

3 . In the view of the majority, “the legislation on the basis of which the applicant was detained on remand for a period of over eighteen months was not sufficiently clear and foreseeable in its application and thus did not meet the requirement of ‘ lawfulness ’ ” (see paragraph 51 of the judgment). The majority base their assessment on “the clear wording of Article 25(4) of the Constitution as regards the maximum duration of the detention on remand”. According to the provision mentioned, the “period of detention on remand may be extended ... to a maximum period o f twelve months” (see paragraph 14 of the judgment).

4 . The applicant ’ s pre-trial detention was ordered by a court and extended every month in accordance with domestic legislation (see paragraph 9 of the judgment). In other words, every month a judge assessed whether the conditions laid down in domestic legislation for holding the applicant in pre-trial detention were met.

5 . The Constitutional Court, in a judgment of 23 December 1999 (see paragraph 13 of the judgment), interpreted the former Article 25(4) of the Constitution, according to which the “period of detention on remand may be extended ... to a maximum period of twelve months”, as referring only to detention during the investigation phase of criminal proceedings, and not the trial phase.

6 . Article 25(4) of the Constitution was amended in 2001 (see paragraph 14 of the judgment), and according to the wording of the new provision, the “period of detention on remand may be extended ... to a maximum period of twelve months”.

7 . We cannot but notice the similarities between the wording of the former and the present Article 25(4) of the Constitution as regards the maximum duration of detention on remand, and there is, in our view, no basis for saying that the Constitutional Court ’ s judgment of 23 December 1999 – interpreting the earlier Article 25(4) of the Constitution as referring only to detention during the investigation stage – is not equally applicable to the new Article 25(4) of the Constitution. In our view, it is common practice that rulings of the highest courts, including constitutional courts, interpreting the Constitution may continue to have relevance and serve as precedents in interpreting the Constitution, even though the provisions of the Constitution may have been amended.

8 . That being said, we cannot but notice that the legislature in Moldova on 12 March 2003, in full knowledge of the Constitutional Court ’ s judgment of 23 December 1999 and after the adoptio n of the new version of Article 25(4) of the Constitution, adopted Article 186 of the Code of Criminal Procedure (see paragraphs 15-17 of the judgment). In our view, it can reasonably be presumed that the legislature in Moldova adopted Article 186 of the Code of Criminal Procedure on the assumption that it was in conformity with the Constitution, and the Court has not been provided with any information about any domestic case-law that might indicate that the legislature was wrong in its assessment of the constitutionality of the provision adopted.

9 . Article 186(3) of the Code of Criminal Procedure provides that the maximum duration of detention on remand during the investigation stage of criminal proceedings is twelve months. In accordance with Article 186(8) of the Code of Criminal Procedure, the maximum duration of detention on remand during the trial phase of criminal proceedings is twelve months. Furthermore, Article 186(9) of the Code of Criminal Procedure provides that detention on remand during the trial phase of criminal proceedings may in exceptional circumstances be extended beyond twelve months.

10 . Therefore, having regard to the clear wording of Article 186 of the Code of Criminal Procedure, the wording of Article 25(4) of the Constitution as applicable from 2 August 2001 and the wording of the former Article 25(4) of the Constitution as interpreted by the Constitutional Court in its judgment of 23 December 1999, we find it very difficult, if not impossible, to say that the legal basis for extending the applicant ’ s detention beyond twelve months “was not sufficiently clear and foreseeable” (see paragraph 51 of the judgment). On the contrary, we find that the applicant ’ s detention, including the period beyond twelve months, which was extended by a judge every month, had a clear legal basis and was lawful within the meaning of Article 5 § 1 of the Convention.

11 . In our view, it is problematic that the Court finds the applicant ’ s detention beyond a period of twelve months unlawful, when there is a clear legal basis in Article 186 of the Code of Criminal Procedure for extending detention beyond twelve months. It is all the more problematic that the Court does so with reference to the wording of a provision of the Constitution that is very similar to an earlier provision that has been interpreted by the Constitutional Court. In practice, the Court is assessing the constitutionality of a law passed by the legislature, even though the issue of constitutionality was not put before the domestic courts before a complaint on that subject was lodged with the Court. This, in our view, runs counter to the principle of subsidiarity and the role of the Court in interpreting domestic legislation.

12 . With the Court ’ s assessment of domestic legislation and its autonomous interpretation of the wording of Article 25(4) of the Constitution, it may be feared that pre-trial detention in Moldova, irrespective of the nature of the crime and the complexity of the investigation and the criminal proceedings, may never exceed twelve months, which would, in practice, create significant difficulties for the judiciary in Moldova.

13 . As we are of the view that the applicant ’ s detention was lawful within the meaning of Article 5 § 1 of the Convention, the Court should, in our view, have proceeded to assess the applicant ’ s complaint about the length of his pre-trial detention. However, as the majority have found that there is no need to examine the applicant ’ s complaint under Article 5 § 3 of the Convention, we will abstain from expressing our view on this issue.