JOINT DISSENTING OPINION OF JUDGES Å IKUTA AND TSOTSORIA

We regret that we cannot agree with the majority in finding that there has been no violation of Article 5 § 1 of the Convention, for the following reasons.

In the instant case the Court was called upon to answer two questions in order to conduct the necessary analysis under Article 5 § 1 of the Convention:

1. Was the applicant deprived of his liberty or not?

2. If so, was this deprivation lawful, that is, based on clearly defined and foreseeable legal provisions?

According to Articles 129 and 130 of the Code of Criminal Procedure (hereafter “the CCP”), a person may be arrested (1) on immediate suspicion of having committed an offence; or (2) on the basis of a decision adopted by the prosecuting authority. In both cases the arrest period must not exceed 72 hours from the time the person is taken into custody.

According to Article 132 § 1 (3) of the CCP, the arrestee must be released if the maximum period of arrest prescribed by the Code has expired and the court has not adopted a decision to detain the accused.

Article 65 § 4 (6) of the CCP provides that the accused may not leave the courtroom without the presiding judge’s permission before a recess is announced. Article 73 § 5 (3) imposes the same obligation on the defence counsel.

It is important to reiterate that any detention must be lawful. The expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 essentially refer back to national law and state the obligation to conform to the substantive and procedural rules thereof. Furthermore, any measure depriving the individual of his liberty must be compatible with the purpose of Article 5, namely to protect the individual from arbitrariness (see Winterwerp v. the Netherlands , 24 October 1979, § 39, Series A no. 33, and Lukanov v. Bulgaria , 20 March 1997, § 41, Reports of Judgments and Decisions 1997-II).

Where deprivation of liberty is concerned it is particularly important that the general principle of legal certainty be satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic law be clearly defined and that the law itself be foreseeable in its application, so that it meets the standard of “lawfulness” set by the Convention, a standard which requires that all law be sufficiently precise to allow the person – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Steel and Others v. the United Kingdom , 23 September 1998, § 54, Reports 1998 ‑ VII).

Turning to the circumstances of the present case, it has been noted that the applicant was formally arrested at 9.50 p.m. on 7 October 2005. According to domestic law, this initial arrest may not last longer than 72 hours and the arrestee has to be released if that maximum period has expired and the court has not adopted a decision to detain him or her (Article 129 § 2 and Article 132 § 1 (3) of the CCP). On 10 October 2005 at about 8.20 p.m., that is, one and a half hours before the expiry of the maximum period for short-term arrest, the applicant was brought before a judge who was called upon to decide whether to detain him. This hearing lasted until 5.05 a.m. the next morning, when the judge decided to grant the investigator’s motion and detain the applicant.

The parties agreed that the applicant had not been allowed to move freely during the breaks in the court hearing, even after 9.50 p.m. on 10 October 2005, when he was technically considered to be at liberty. The Government sought to justify that situation with reference to Article 65 § 4 (6) of the CCP, which states that the accused is not allowed to leave the courtroom without the judge’s permission unless there is a recess, and claimed that the applicant was not deprived of his liberty during that period.

We cannot, however, agree with the Government’s arguments. They draw a distinction between an obligation for the accused to perform certain actions, in this case to be present at a court hearing, and physically restricting a person’s liberty. The applicant in the present case was physically prevented by four police officers from leaving a certain restricted area, despite the fact that other participants in the hearing were allowed to move around freely during the breaks and the fact that under domestic law he was no longer considered an arrestee and was not yet a detainee. We therefore conclude that the applicant was deprived of his liberty in the course of the court hearing from 9.50 p.m. on 10 October 2005 until 5.05 a.m. on 11 October 2005. It remains to be determined whether this deprivation of liberty had a legal basis.

The Government relied on Article 65 § 4 (6) of the CCP. However, there is nothing in that Article which explicitly allows a person’s liberty to be restricted. Furthermore, the Article speaks of the requirement not to leave the courtroom, whereas in the applicant’s case he was no longer in the judge’s office, which apparently served as a courtroom, when he was prevented from moving freely during the breaks in the hearing. Last but not least, the fact cannot be overlooked that Article 65 § 4 (6) allows the accused to leave the courtroom when there is a recess. This clearly suggests that the purpose of this provision is to ensure order in the courtroom and the smooth running of the judicial process rather than to deal with questions relating to deprivation of liberty. Article 73 § 5 (3) of the CCP imposes the same obligation on the defence counsel (see paragraph 51 of the judgment), a fact which also clearly indicates that this requirement has nothing to do with questions of deprivation of liberty.

It is up to the accused, in so far as he is at liberty, to comply with that obligation or face possible sanctions. Hence, we conclude that Article 65 § 4 (6) could not serve as a sufficiently clear and foreseeable legal basis for the applicant’s deprivation of liberty during the above ‑ mentioned period.

Lastly, it can be conceded that certain delays in the hearing were caused by the number of lawyers involved in the case and the numerous motions and objections which they filed. However, no explanation was provided by the Government as to why the applicant was brought before the judge only one and a half hours before expiry of the three-day arrest period. Nothing in the case file suggests that any investigative measures were carried out between 8 October 2010 and the time when the applicant was brought before the judge on 10 October 2010. It should be reiterated in this connection that it is for the Contracting States to organise their legal system in such a way that their law-enforcement authorities can meet the obligation to avoid unjustified deprivation of liberty (in the instant case, custody exceeding 72 hours) (see Shukhardin v. Russia , no. 65734/01, § 93, 28 June 2007; Matyush v. Russia , no. 14850/03, § 73, 9 December 2008; and Asatryan v. Armenia , no. 24173/06, § 45, 9 February 2010). Therefore, in our view, the applicant’s deprivation of liberty between 9.50 p.m. on 10 October 2005 and 5.05 a.m. on 11 October 2005 lacked a proper legal basis.

We believe that the statutory initial 72-hour arrest period should not be extended under any circumstances (see Salayev v. Azerbaijan , no. 40900/05, §§ 44-48, 9 November 2010, and Farhad Aliyev v. Azerbaijan , no. 37138/06, §§ 166-169, 9 November 2010, where the Court found a violation of Article 5 § 1 of the Convention because the applicants’ initial detention exceeded the maximum of 48 hours permitted by domestic law). The fact that the applicant was brought before the judge within the 72-hour time ‑ limit and that the hearing extended beyond those 72 hours does not, in our opinion, alter the presumption that he was deprived of his liberty on the premises of the court while the latter was deciding on the imposition of a preventive measure, and that this deprivation of liberty was unlawful for the purposes of Article 5 of the Convention. Where the maximum period of detention is laid down by law and is absolute, the authorities responsible for the detention are under a duty to take all necessary precautions to ensure that the permitted duration is not exceeded (see, K.-F. v. Germany , 27 November 1997, § 72, Reports 1997-VII). Therefore, it was not relevant whether the delay was attributable to the judge (see paragraph 86 of the judgment), since the imperative of Articles 129 and 130 of the CCP is clear – an arrest must not exceed 72 hours from the time the person is taken into custody. Furthermore, under Article 132 § 1 (3) of the CCP, the arrestee must be released if the maximum period of arrest prescribed by that Code has expired (see paragraph 55).

Hence, Article 65 § 4 (6) of the CCP, in combination with the absence of any other provision regulating the maximum period within which a judge is obliged to take a decision on detention or release, provided no kind of clear legal basis for the applicant’s deprivation of liberty and placed him in an uncertain legal situation. However, considering the clear and unambiguous language of Article 132 § 1 (3) of the CCP, the applicant, in the absence of a relevant court decision, had to be released on expiry of the 72-hour period.

The importance of the rights protected under Article 5 requires that the law should clearly specify a statutory time-limit for judges to determine the issue of pre-trial detention which lies within the maximum arrest period, in this case 72 hours, so to avoid a breach of Article 5 of the Convention.

On the basis of all the above-mentioned reasons, we cannot but come to the conclusion that there has been a violation of Article 5 § 1 of the Convention. This also leads us to believe that the complaint under Article 5 § 5 should have been declared admissible and a violation found.