DISSENTING OPINION OF JUDGE SAJÓ

The question here is whether the G overnment was justified in holding the applicant in prison with no bail and no trial for 45 straight months. Based on analogous cases this Court has decided, I would find that such an extended detention was excessive.

Article 5 § 3 of the Convention guarantees the right to trial within a reasonable time or to release pending trial; release may be conditioned by guarantees to appear for trial. Absent a relevant and sufficient reason, a person charged with an offence must always be released pending trial ( see Smirnova v. Russia , nos. 46133/99 and 48183/99, § 58, ECHR 2003 ‑ IX (extracts); Becciev v. Moldova , no. 9190/03, § 53, 4 October 2005; and Khodorkovskiy v. Russia , no. 5829/04, § 182, 31 May 2011). Where such relevant and sufficient grounds exist , the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings, since the initial grounds for pre-trial detention become less and less relevant over time ( see Labita v. Italy [GC], no. 772/95, § 153, ECHR 2000 ‑ IV). The State must consider alternative preventive measures, such as bail, to ensure appearance before the court ( s ee Jablonski v. Poland , no. 33492/96, § 83, 21 December 2000). It is of particular importance that people not be exposed to dubious police and prosecutorial practices even if charged with a serious crime. Sheer lack of proper promptness in the handling of criminal affairs, irrespective of the reason, cannot normali s e long pre-trial detention. The requirement that the length of detention p ending trial be limited is closely related to the presumption of innocence. There is a clear danger that this detention will be misused; its continuation cannot be used to anticipate a custodial sentence. [2] Even i f an accused makes use of his right not to “cooperate with the authorities,” although this may indeed delay the “ progress of the investigation” it is not acceptable that he should be made to “bear the consequences” by having his detention prolonged ( see d issenting o pinion of Judge De Meyer, W. v Switzerland , 26 January 1993, Series A no. 254 ‑ A). In determining whether the detention of an accused person exceeds a reasonable limit, it is for the national judicial authorities to seek all the facts arguing for or against the existence of a genuine requirement of public interest justifying a departure from the rule of respect for individual liberty ( Neumeister v. Austria , 27 June 1968, [Law Part] § 4, Series A no. 8). In the evaluation of continuing detention it is crucial to recall at all times that the public interest considerations of continued detention should be understood as a “departure from the rule of respect for individual liberty” ( Yagci and Sargin v. Turkey , no. 16419/90, § 50, 8 June 1995). Bear ing in mind the force of inquisitorial habits in many legal systems, these considerations must animate the above rules and should guide the Court in the application of Article 5 § 3 in all cases.

Considering the presumption in favour of release, national authorities must ensure that pre-trial detention of an accused person does not exceed a reasonable time (see McKay v. the United Kingdom [GC], no. 543/03, § 43, ECHR 2006-X). They must examine all the facts that support or oppose the existence of the public interest which justifies a departure from the rule in Article 5, and must explicitly set out these reasons in their decisions on applications for release. Insufficient facts or deficiencies in the process will lead this Court to find a violation of Article 5 § 3 (ibid.).

The Court does recogni s e t he risk that the accused would fail to appear for trial as a reason to detain a person suspected of a crime before judgment ( see Stögmüller v. Austria , 10 November 1969, § 15, Series A no. 9). But domestic authorities cannot make this assessment in the abstract; they must assess a number of case-specific factors, among them the person ’ s character, morals, home, occupation, assets, family ties and links with the country in which he is prosecuted. The mere possibility of a heavy sentence and the weight of the evidence are not in themselves sufficient to offset these factors (see Neumeister , cited above , § 10 , and Piruzyan v. Armenia , no. 33376/07 , § 94-95, ECHR 2012 (extracts)) . Furthermore, when the only remaining reason for continued detention is the fear that the accused will abscond and thereby subsequently avoid appearing for trial, his release pending trial must be ordered if it is possible to obtain from him guarantees that will ensure such appearance ( see Wemhoff v. Germany , 2 7 June 1968, § 15, Series A no. 7). A nd most relevant here, the risk of absconding does not excuse unreasonable delays in bringing the suspect to trial ( see, for example , Szepesi v. Hungary , no. 7983/06 , § 28, 21 December 2010, holding that despite the risk of the suspect absconding, a ten-month period of inactivity in the judicial process was irreconcilable with the requisite special diligence in such cases).

In this case, the applicant spent nearly four years of his life in prison, with no trial and no bail set. The domestic judicial system abandoned its reasons for continuing his detention one by one, eventually concluding that there was a monetary amount that would constitute sufficient bail and dissuade the suspect from fleeing. There is no justification in the record for not having com e to th at conclusion sooner – several years sooner.

In my view, the complexity of the present case, involving many potential witnesses and multiple defendants, is not so great as to excuse a 45-month delay. While the reasonable time cannot be assessed in the abstract ( see , mutatis mutandis , the Stögmüller judgment cited above, p. 40, § 4), i n a review of 69 Article 5 § 3 judgments provided by S. Trechsel, former President of the European Commission of Human Rights , [3] there is only one case where a 4 ‑ year detention was not found to have result ed in a finding of a violation ( W. v. Switzerland , 26 January 1993, Series A no. 254 ‑ A). [4] Governments have often leaned on their own assessments of the complexity of the case, or made unfounded allegations about the risk of witness tampering, in order to excuse a lengthy delay – and the Court has often rejected those arguments (for one such list of violations, in a case where a violation of Article 5 § 3 was found because of lengthy detention despite complexity, see Dirdizov v. Russia , no. 41461/10 , §§ 102-08, 27 November 2012 ). Indeed, t his Court has found violations in complex cases when the applicant was detained for far less time. For instance, i n Toth v. Austria , 12 December 1991, §§ 74-78, Series A no. 224, the Court found that a violation of Article 5 § 3 arose from 11 months of inactivity before trial, and the complexity of the case (voluminous evidence spanning several countries, as well as multiple charges and defendants) did not justify the unreasonably long detention.

The majority holds that the alleged participation of the accused in organi s ed crime justifies his extended detention ( § 46, citing Tomecki v. Poland , no. 47944/06, § 29, 20 May 2008 ) . In that case (which involved a period of detention shorter than in the present case), the applicant was a resident of another country, had absconded once already, and had tried to exert pressure on two other accused parties (ibid . §§ 8-10 ) . The Tomecki Court qualified its reasoning by pointing out that “ in the special circumstances of the case, the risk flowing from the nature of the applicant ’ s criminal activities actually existed and justified holding him in custody for the relevant period ” ( § 35 , emphasis added). That case is a poor analogy ; –in the present case the applicant was eventually granted bail, and arguments about the possibility of his absconding were largely speculative.

The judgment in th e present case states the following (paragraph 53) :

“While it is true that the domestic courts used the same reasoning concerning this ground throughout the applicant ’ s detention and that with the passage of time this ground inevitably became less relevant, the Court cannot conclude on this basis alone that the authorities did not have reasonable grounds to keep him in custody in order to prevent his absconding (compare Panchenko v. Russia , no. 45100/98, § 106, 8 February 2005). Having in mind the nature of the case (namely, a serious corruption case), it was reasonable to believe that the risk of the applicant ’ s absconding persisted throughout his pre-trial detention . The domestic courts ’ reasoning that the contacts with other custom s officers, which the applicant had through his work made in Serbia and abroad, might have enabled him to abscond does not appear arbitrary .”

The Court relies here on a kind of a contrario interpretation of Panchenko. The Panchenko Court found that the decisions extending the applicant ’ s pre-trial detention were stereotypically worded and in summary form. In the present judgment it is found that the same reasoning is applied throughout the applicant ’ s detention, but its relevance is not considered.

As to the severity of the crime (or the possibility of a serious punishment), which seems to be a prominent consideration in the above reasoning of the Court, this is not a sufficient ground in itself, at least in the light of our jurisprudence. Moreover, the Court itself relies on the contrary finding of the Supreme Court, which already on 19 November 2007 held that the grounds of the serious nature of the offences with which the applicant had been charged and the severity of the penalty which could be imposed had not been satisfied in the applicant ’ s case (paragraph 51).

It is true that there are cases where the Court found that “the danger of the applicant ’ s absconding was the other main ground referred to by the [domestic] courts” ( Van der Tang v. Spain , 13 July 1995, § 64 , Series A no. 321 ) . But the risk of absconding is generally a more specific one: for example, in V an der Tang , the applicant (just like Tomecki , see above) was a non-resident foreigner, lacking links or property in the country, and with a family and roots in another country. (Moreover, he did abscond later.) These are facts – unlike the mere speculation of the Serbian courts “that the applicant might have had” foreign contacts as a customs officer. More importantly, such assumption about the risk of absconding based on foreign links cannot in itself be considered to be a sufficient ground to justif y the detention. It remains to be ascertained whether the national authorities displayed “special diligence” in the conduct of the proceedings ( see Van der Tang , § 67). This matter is simply not discussed in the judgment . Instead the Court is satisfied with a reference to the domestic courts ’ reasoning, in the sense that in the light of the applicant ’ s [assumed] contacts with other custom s officers abroad that reasoning “does not appear arbitrary”. But appearance of lack of arbitrariness (consisting in the “not unreasonable” nature of assumptions) is certainly not the same as “sufficient” when it comes to justif ying 45 months of pre-trial detention, especially if one realises that the very institution of detention is a “departure from the rule of respect for individual liberty.” Even if the evaluation of the applicant ’ s flight risk was based on the assessment that he had contacts abroad, rather than on stereotyped generalities, this in itself should justify neither the excessive delay in determining bail, nor the failure to consider alternative preventive measures ( s ee Jablonski , cited above, § 83).

To further bolster its organi s ed - crime-related rationale, the majority cites BÄ…k v. Poland , no. 7870/04, § 57, 16 January 2007, which in turn relies on Celejewski v. Poland , no. 17584/04, § 37, 4 May 2006 . Much of the Celejewski opinion could have been reproduced word for word here ( §§ 38 ‑ 40 ) :

“[E]ven if due to the particular circumstances of the case, detention on remand is extended beyond the period generally accepted under the Court ’ s case-law, particularly strong reasons would be required to justify this. In the circumstances of the present case, the Court finds that with the passage of time, the severity of the anticipated penalty, alone or in conjunction with other grounds relied on by the authorities, cannot be accepted as sufficient justification for holding the applicant in detention for a very long period of nearly 4 years ... .The Court concludes, even taking into account the particular difficulty in dealing with a case concerning [an] organised criminal group, that the grounds given by the domestic authorities were not ‘ sufficient ’ and ‘ relevant ’ to justify the applicant ’ s being kept in detention for 3 years, 9 months and 15 days.”

Even in cases of organi s ed crime where a delay in trial could be justified, the allowable delay cannot be open-ended. The length of the delay must be reasonably bounded by its necessity, a necessity which the G overnment ’ s arguments about organi s ed crime and foreign contacts do not demonstrate here. Nearly four years is simply too long in the absence of exceptional circumstances, and given the lack of relevant and sufficient grounds, or any showing of special diligence, I would have found that the State had violated the applicant ’ s Article 5 § 3 rights.

[1] Zakon o krivičnom postupku , Official Gazette of the Federal Republic of Yugoslavia no s . 70/01 and 68/02; and Official Gazette of the Republic of Serbia nos. 58/04, 85/05, 115/05, 46/06, 49/07, 122/08, 20/09, 72/09 and 76/10.

[2] . S. Trechsel, Human Rights in Criminal Proceedings. OUP. 2007. 516.

[3] . Trechsel, op. cit. 530-531.

[4] . Note the differences between Mr. W. and Mr. Lukovic: As to Mr W., his residence was already transferred from Switzerland to Monte Carlo, he had frequently visited Germany, England, the United States and the island of Anguilla (where he was supposed to be the owner of a bank); he had thus established numerous close connections with foreign countries. Furthermore, he had stated on several occasions that he wished to go and live in the United States . There were certain indications that he still had considerable funds at his disposal outside his own country. Whatever one might think of W. v. Switzerland – see the dissent of Judge De Meyer: “The applicant was in fact deprived of his liberty for slightly over four years before being tried. This interference with ‘the rule of respect for individual liberty ’ and the presumption of innocence was so serious that I cannot regard it as acceptable” – all the above specific considerations were established and duly considered by the domestic courts, which cannot be said in the present case, where the Court finds that “the domestic courts used the same reasoning.”