JOINT DISSENTING OPINION OF JUDGE S ROZAKIS, TULKENS AND SPIELMANN

We are unable to follow the majority ' s decision t hat there has been no violation of Article 5 § 3 of the Convention. Insofar as the grounds for the continued detention are concerned, we would like to emphasise the following considerations.

1. In the present case, the judicial authorities justified their decisions to continue the applicant ' s detention by the persistent suspicion against the applicant, the possibility that he might commit other offences and the risk that he might abscond. Until the applicant ' s accomplice Mr P. was arrested on 4 June 1999, the courts also referred to the risk of collusion.

2. Al though we consider that these grounds were reasonable, at least initially, we are of the opinion that , with the passage of time, th ey inevitably became less relevant. Nevertheless, when dismissing the applicant ' s requests for release, the domestic courts continued to rely on the same reasons (see paragraphs 25 and 27 of the judgment). In this context, we recall that , throughout the entire period of the applicant ' s pre-trial detention, the authorities did not envisage the possibility of imposing the other more lenient measures expressly foreseen by Austrian law in order to secure a suspect ' s continued presence in Austria (see paragraph 34 of the judgment). We would emphasise that , under Article 5 § 3 of the Convention , the authorities, when deciding whether a person should be released or detained, are obliged to consider alternative measures of ensuring his or her appearance at trial. Indeed, that provision proclaims not only the right to “trial within a reasonable time or to release pending trial” but also lays down that “release may be conditioned by guarantees to appear for trial” (see, amongst other authorities, Jablonski v. Poland , no. 33492/96, § 83, 21 December 2000). Accordingly, we find it open to doubt whether the grounds given by the Austrian courts were sufficient to justify the applicant being kept in pre-trial detention for a period as long as 2 years and 4 months.

3. Turning to the conduct of the proceedings, the following observations should be made. As to whether the judicial authorities displayed the special diligence required in the conduct of the proceedings, we accept that the applicant ' s case was certainly complex , in that it concerned a serious offence, namely drug trafficking, which, furthermore, had been committed in the context of an international criminal organisation which operat ed in more than two countries. However, whil e the duration of the criminal investigation does not in itself appear excessive, an unjustified delay occurred after the indictment had been issued in May 2000. In particular, it remains unexplained why the first hearing of the applicant ' s trial was not fixed until four months later, namely on 20 September 2000. Furthermore, and more importantly , a considerable period of time elapsed between the

second hearing on 27 September 2000 an d the third hearing on 1 August 2001. Whil st accepting that the trial was initially adjourned in order to allow the main witness against the applicant to be heard in Austria , we note that this plan proved impossible to implement as early as February 2001. We do not find that the Government have submitted any convincing explanations that would justify the subsequent postponement until August 2001 , when the trial was eventually resumed.

4. W e recall once more that the period of pre-trial detention was almost two and a half years. This in itself would require that the national courts paid particular attention to the “special dilige nce” requirement of Article 5 § 3 of the Convention (see the Duda v. Poland and Dolasiński v. Poland judgments of 19 December 2006, where the Court found a violation of Article 5 § 3 in connection with pre-trial detention s of two years and four months and two years and three months respectively).

In the light of the foregoing, however, we consider that the duty of “special diligence” enshrined in Article 5 § 3 has not been observed. Consequently, we are of the opinion that there has been a violation of Article 5 § 3 of the Convention .