JOINT DISSENTING OPINION OF JUDGES BERRO ‑ LEFEVRE AND DEDOV

We regret that we cannot share the view of the majority of the Chamber who found a violation of Article 5 § 3 of the Convention.

We observe that the present case concerned serious crimes, namely membership of a criminal gang, illegal possession of firearms, infliction of bodily injuries, kidnapping and murder. It was a classic example of organised crime, by definition presenting more difficulties for the investigating authorities and, later, for the courts in determining the circumstances of the matter. It is obvious that in cases of this kind continuous control and limitation of the defendants ’ contact with each other and with other persons may be essential to prevent their absconding, tampering with evidence and most importantly of all influencing, or even threatening, witnesses. All those factors can justify a relatively long period of detention, which in this case lasted approximately two years and two months.

Therefore, the fact that the case concerned a member of such a criminal group should be taken into account in assess ing compliance with Article 5 § 3 (see, for example, Bak v. Poland , no. 7870/04, § 57, 16 January 2007 ). Accordingly, longer periods of detention than in other cases may be reasonable (compare Rażniak v. Poland , no. 6767/03, § 25, 7 October 2008) .

In our view, the reasonable suspicion that the applicant had committed the offences he had been charged with, being based on cogent evidence, persisted throughout the trial leading to his conviction . And we consider that the judicial authorities gave “relevant” and “sufficient” grounds to justify the applicant ’ s detention and displayed “special diligence” in the conduct of the proceedings.

When extending the applicant ’ s pre-trial detention, the domestic authorities did not automatically refer to the gravity of the charges against him. They noted that he might interfere with the administration of justice, put pressure on the witnesses or other parties to the proceedings or destroy evidence, as such actions remained vital for the criminal group throughout the whole period of the investigation proceedings. They also cited the risk that he would abscond or continue with criminal activities, in view of his prior criminal record.

It is clear from the case materials that the authorities were faced with the difficult task of determining the facts and the degree of alleged responsibility of each of the twelve defendants who had been charged with acting as part of an organised criminal gang. The Chamber itself recognises that the reasons for the applicant ’ s pre-trial detention “might have existed” (see paragraph 88). In these circumstances, and contrary to the majority, we consider that the need to obtain voluminous evidence from many sources, coupled with the existence of a general risk flowing from the organised nature of the applicant ’ s alleged criminal activities, constituted relevant and sufficient grounds for extending his detention during the time necessary to complete the investigation, to prepare the case for trial and to hold a jury trial.

Regard being had to the above, we think that the combined arguments advanced by the domestic courts when deciding to keep the applicant in custody pending the criminal proceedings against him were capable of justifying his detention.

Lastly, it should be noted that the proceedings were of considerable complexity, taking into consideration the number of defendants, the extensive evidentiary proceedings and the implementation of special measures required in cases concerning organised crime. There is nothing in the materials before the Court – a fact not disputed by the parties – to suggest that there were significant periods of inactivity on the part of the prosecution or the court. The period under consideration comprised the investigation stage, the study of the case file by the defendants and the jury trial. We therefore consider that the national authorities displayed special diligence in the conduct of the proceedings.

Having regard to the foregoing, we conclude that there has been no violation of Article 5 § 3 of the Convention.