JOINT PARTLY DISSENTING OPINION OF JUDGES MIJOVIĆ AND HIRVELÄ

While we have no difficulties in joi ning the Chamber ' s finding that Article 5 § 4 of the Convention has been violat ed , we are of the opinion that there has been no violation of Article 5 § 3.

The applicant was arrested on 3 September 2004 and remanded in custody on suspicion of having committed acts of domestic violence between May and September 2004 . From the facts of the case it is clear that he was a recidivist offender. T he preventive measure of police supervision had been previously imposed and it proved ineffective. As a consequence , the Warsaw District Court held that only detention could secure the proper conduct of the investigation and judicial proceedings. The applicant ' s detention was extende d on several occasions up to 25 November 2005, when the Warsaw District Court ordered the joinder of this case with two other cases against the applicant in which he was charged not only with domestic violence, but with insulting police officers and unlawful possession of a stun gun ( acts committed between December 2002 and April 2004).

On 7 August 2006, the applicant was convicted, sentenced and rele ased. Accordingly, the period to be taken into consideration for the purposes of Article 5 § 3 amounts to one year and eleven months.

The majority of the Chamber was of the opinion that the grounds given by the domestic authorities could not justify the overall period of the applicant ' s detention. The majority point ed out that the domestic authorities did not give any consideration to the possibility of imposing on the applicant any other “pre ventive measure” than detention. W e find this argument very weak since, as mentioned earlier, at the time when the applicant was arrested he was already subject to one of these “preventive measures” (police supervision) and it proved to be ineffective.

In accordance with the relevant domestic law [1] , apart from detention on reman d the other so-called “preventive measures” are bail, police supervision, guarantee by a responsible person, guarantee by a social entity, temporary ban on engaging in a given activity and prohibition on leav ing the country. With regret , we cannot accept that any of these measures would be more appropriate in the circumstances of this case since, as emphasis ed earlier, the applicant had the profile of a serial offender involved in acts of domestic violence.

In contrast to this judgment, the problem of domestic violence in the case-law of the European Court of Human Rights has up to now been , in our opinion, treated differently in other cases . T here have been domestic violence cases where the European Court of Human Rights has found a violation of Article 2 on account of the failure of the relevant domestic authorities to take all necessary and reasonable steps to afford protection to the lives of family memb ers (domestic violence victims) [2] . In this case, we consider that the domestic authorities did what they were supposed to do in accordance with the case-law of the European Court of Human Rights: they protec ted the lives of family members by applying the only one meaningful measure (detention). That is an additional reason for us to dissent.

Finally, the whole period of the applicant ' s detention did not exceed the limit set by the domestic legislation [3] and accepted by the case-law of the European Court of Human Rights .

In these circumstances, regrettably, we are unable to join the majority in finding that the applicant ' s rights under Article 5 § 3 were violated.

[1] . Code of Criminal Procedure of 1997, which entered into force on 1 September 1998.

[2] . Among others : Opuz v. Turkey , 9 June 200 9 , Branko Tomašić and Others v. Croatia , 15 April 2009 and Kontrov á v. Slovakia , 24 September 2007 .

[3] . Code of Criminal Procedure, Art. 263: ” The whole period of detention on remand until the date on which the first conviction at first instance is imposed may no t exceed 2 years”.