DISSENTING OPINION OF JUDGE NICOLAOU

I very much regret that I am unable to share the view taken by my learned colleagues that there has been no violation of Article 5 § 3.

The legal issue in the present case is essentially whether Article 102 § 1 (4) of the Code of Criminal Procedure could provide sufficient legal basis for detention during the pre-trial period. An affirmative answer was given by a majority judgment in the case of Getoš-Magdić v. Croatia , no. 56305/08, §§ 80-96, 2 December 2010, where it was accordingly found that there was no violation of Article 5 § 3 of the Convention. A separate dissenting opinion of judges Rozakis , Malinverni and Nicolaou found otherwise, on the ground that detention on the stated basis was inconsistent with the Court ’ s case-law. The main part of the reasoning is contained in the following excerpt (at p.30):

“The nature and the actual seriousness of the offences or the gravity of the charges brought, as well as the severity of the penalty that may imposed, are obviously relevant factors which may indicate, especially when the prosecution evidence is strong, that there is a risk of absconding or reoffending. In such a situation it is incumbent on the national judicial authorities to ascertain and evaluate the various elements and factors involved, to explain their conclusions and to give reasons for their decision to detain, or for their decision to grant bail on terms that exceed what may normally be expected. In doing so, they are expected to balance the recognized requirements of public interest that may justify detention against respect for individual liberty, which at that stage is reflected in the presumption of innocence. The constant case-law of the Court leaves no doubt that the seriousness of the offence, whatever form the offence may actually have taken, and the probable severity of sentence do not of themselves, without more, justify detention, at least after the initial period. Article 102 § 1 (4) does not, on the face of it, seem to require more. Accordingly, it cannot constitute a valid basis for detention”.

While, therefore, precedent must be respected, there is a choice to be made when one is confronted with divergence. In my opinion the case of Getoš-Magdić v. Croatia (cited above) in no way diminishes the force of a mass of case-law going in the opposite direction; and it is to the principles it establishes that I must adhere. This, in my view, can only be expressed by a dissenting opinion, not a concurring one which would imply acceptance of Getoš-Magdić v. Croatia as binding authority.