DISSENTING OPINION OF JUDGE PAVLOVSCHI

On 4 April 2006 the Fourth Section, having examined the case of Dudek against Poland , found no violation of Article 5 § 3 of the Convention.

With all my due respect to my fellow judges it is impossible for me to subscribe to this finding because, in my view, the existence of a violation in the case under consideration is self-evident.

In general lines, my arguments, which stem from the factual circumstances of the case and the Court ’ s case-law, are the following.

1. The applicant had spent two years and eight days, in pre-trial detention but in the result of all these proceedings he was sentenced to one year and two months ’ imprisonment. [1] So, a simple mathematical exercise shows that the applicant spent in pre-trial detention a period of time that exceeds by 10 months the period provided by the sentence as a punishment for the crime committed by him.

It is impossible for me to agree that in such a situation when a pre-trial detention is longer than a punishment itself “ ... the domestic authorities cannot be criticised for a failure to observe ‘ special diligence ’ in the handling of the applicant ’ s case ... ” [2]

2. Under the Court ’ s case-law, the issue of whether a period of detention is reasonable cannot be assessed in abstracto . Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty (see, among other authorities, W. v. Switzerland , judg ment of 26 January 1993, Series A no. 254 ‑ A, p. 15, § 30 , and KudÅ‚a v. Poland [GC], no. 30210/96, § 110 , ECHR 2000 ‑ XI )

As it follows from “The circumstances of the case” part of the judgment “ ... on the 26 July 2001 the Katowice District Court ordered that the applicant be remanded in custody in view of the reasonable suspicion that, acting in an organised group, he had been involved in the traffic of human beings and narcotics, had committed robberies and had derived profits from prostitution ... ” [3]

At the same time, it is worth mentioning, the applicant was convicted finally only of “running ... of a night club and possession of cannabis” [4] and not of “ ... acting in an organised group, [being] involved in the traffic of human beings and narcotics, [committing] robberies and [deriving] profits from prostitution ... ”. This conviction has nothing to do with the initial so-called “reasonable suspicion” and poses the question whether “running of a night club and possession of cannabis” is such a socially dangerous act as to require two years ’ pre-trial detention. I doubt it very much. On the other hand, if all the Europeans states took the same approach, I am afraid that the majority of night club owners or managers would spend years and years in custody.

So, taking into consideration the results of the examination of the applicant ’ s case, which, in practical terms, did not confirm the initial suspicions and charges, my conclusion is that the reasons given by the national judicial authorities while prolonging the applicant ’ s pre- trial detention in no way justify its whole length.

3. The reasons given for the prolongation of the applicant ’ s pre-trial detention by the national judicial authorities creates one more difficulty for me.

As it follows from the judgment, on 18 October 2001 and 16 January 2002 the Bielsko - Biała Regional Court prolonged the applicant ’ s detention. The court reiterated grounds given previously. [5]

On 16 April 2002 , the same court again prolonged the applicant ’ s detention. It reiterated the grounds that had been stated in the previous decision. [6]

On 3 and 24 June 2002 the Bielsko-Biała Regional Court dismissed the applicant ’ s requests for release reiterating the previously given grounds for detention. [7]

On 18 June 2003 the Katowice Court of Appeal further prolonged the applicant ’ s detention, repeating the grounds given originally. [8]

In his arguments before the Court the applicant submitted that the domestic judicial authorities had “ ... automatically prolonged his detention and superficially examined his application for release ... ” [9]

I find this argument very persuasive and tend to agree with it, because it is fully based on the evidence shown above. Indeed, national judicial authorities prolonging the applicant ’ s detention and rejecting his requests for release each and every time had been relying on the same grounds.

Unfortunately, the majority ruling on this case simply avoided providing any answer to the applicant ’ s argument.

According to the Court ’ s case-law, a person charged with an offence must always be released pending trial unless the State can show that there are “relevant and sufficient” reasons to justify the continued detention ( see Yağcı and Sargın v. Turkey , judgment of 8 June 1995 , Series A no. 319-A, § 52).

Justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities ( see Belchev v. Bulgaria , no. 39270/98, § 82, 8 April 2004 ).

A further function of a reasoned decision is to demonstrate to the parties that they have been heard. Moreover, a reasoned decision affords a party the possibility to appeal against it, as well as the possibility of having the decision reviewed by an appellate body. It is only by giving a reasoned decision that there can be public scrutiny of the administration of justice ( see Suominen v. Finland , no. 37801/97, § 37, 1 July 2003 ).

Arguments for and against release must not be “general and abstract” (see Clooth v. Belgium , judgment of 12 December 1991 , Series A no. 225, § 44).

The Convention case-law has developed four basic acceptable reasons for detaining a person before judgment when that person is suspected of having committed an offence: the risk that the accused would fail to appear for trial (see Stögmüller v. Austria , judgment of 10 November 1969, Series A no. 9, § 15); the risk that the accused, if released, would take action to prejudice the administration of justice (see Wemhoff , cited above, § 14) or commit further offences (see Matznetter v. Austria , judgment of 10 November 1969, Series A no. 10, § 9) or cause public disorder (see Letellier v. France , judgment of 26 June 1991, Series A no. 207, § 51).

The danger of an accused ’ s absconding cannot be gauged solely on the basis of the severity of the sentence risked. It must be assessed with reference to a number of other relevant factors which may either confirm the existence of a danger of absconding or make it appear so slight that it cannot justify detention pending trial ( Yağcı and Sargın v. Turkey , cited above, § 52). The risk of absconding has to be assessed in light of the factors relating to the person ’ s character, his morals, home, occupation, assets, family ties and all kinds of links with the country in which he is prosecuted. The expectation of heavy sentence and the weight of evidence may be relevant but is not as such decisive and the possibility of obtaining guarantees may have to be used to offset any risk ( Neumeister v. Austria , judgment of 27 June 1968, Series A no. 8, § 10).

The danger of the accused ’ s hindering the proper conduct of the proceedings cannot be relied upon in abstracto , it has to be supported by factual evidence ( Trzaska v. Poland , no. 25792/94, § 65, 11 July 2000 ).

It falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and set them out in their decisions dismissing the applications for release. It is essentially on the basis of the reasons given in these decisions and of the true facts mentioned by the applicant in his appeals, that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 of the Convention.

The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see Labita v. Italy [GC], no. 26772/95, § 153 , ECHR 2000 ‑ IV, and Jablonski v. Poland , no. 33492/96, § 80 , 21 December 2000 ).

I accept that the suspicion that the applicant had committed the serious offences with which he had been charged may initially have justified his detention. Yet , it could not constitute a “relevant and sufficient” ground for his being held in custody for the entire relevant period.

U nder Article 5 § 3 the authorities, when deciding whether a person should be released or detained, are obliged to consider alternative measures of ensuring his appearance at trial. Indeed, that Article lays down not only the right to “trial within a reasonable time or release pending trial” but also provides that “release may be conditioned by guarantees to appear for trial” (see, mutatis mutandis , the Neumeister v. Austria judgment of 27 June 1968, Series A no. 8, p. 3, § 3).

That provision does not give the judicial authorities a choice between either bringing the accused to trial within a reasonable time or granting him provisional release – even subject to guarantees. Until conviction he must be presumed innocent, and the purpose of Article 5 § 3 is essentially to require his provisional release once his continuing detention ceases to be reasonable (see the Neumeister judgment cited above, § 4).

Turning to the circumstances of the present case, no consideration appears to have been given to the possibility of imposing on him other “preventive measures” – such as bail or police supervision – expressly foreseen by Polish law to secure the proper conduct of the criminal proceedings .

Repeating that the applicant should be kept in detention in order to ensure the proper conduct of the trial, the relevant courts did not take into account any other guarantees that he would appear for trial. They did not mention why those alternative measures would not have ensured his presence before the court or why, had the applicant been released, his trial would not have followed its proper course. Nor did they point to any evidence indicating that there was a risk of his absconding, going into hiding, or otherwise evading justice.

In that context, and bearing in mind the final charges on which the applicant was convicted , it became more and more obvious that keeping him in detention no longer served the purpose of bringing him to “trial within a reasonable time” .

In the se circumstances, I am of the opinion that the applicant ’ s prolonged detention could not be considered “necessary” from the point of view of ensuring the due course of the proceedings. [10]

I consider that the reasons relied on by the courts in their decisions were not sufficient to justify the applicant ’ s being held in custody for the period of t wo years and eight days.

There was therefore in my view a violation of Article 5 § 3 of the Convention .

Lastly, in the judgment it is stated that “ ... the Court considers that the authorities were faced with a difficult task of determining the facts and the degree of alleged responsibility of each of the defendants, who had been charged with acting in an organised criminal group. In these circumstances, the Court also accepts that the need to obtain voluminous evidence from many sources, coupled with the fact that in the course of the investigation new suspects had been identified, constituted relevant and sufficient grounds for the applicant ’ s detention during the time necessary to terminate the investigation, to draw the bill of indictment and to hear evidence from the accused ... ” [11]

I am really sorry to have to point out that neither of these arguments were relied on by the national courts while prolonging the applicant ’ s detention, at least they are not reflected in paragraphs 5 to 13 of the judgment. And, if so, it is very difficult to me to accept that it is open to our Court - in justifying the applicant ’ s detention - to rely on reasoning other than that used by the national courts. My understanding is that when judging the cases before us, we should rather assess whether the reasons given by the national courts were “relevant” and “sufficient” and not determine whether, in theory, such reasons could have been adduced.

This is where I respectfully disagree with the majority.

[1] see the present judgment paragraphs 16 and 34

[2] ibid, paragraph 39

[3] ibid, paragraph 5

[4] ibid, paragraph 16

[5] ibid, paragraph 7

[6] ibid, paragraph 9

[7] ibid, paragraph 10

[8] ibid, paragraph 13

[9] ibid, paragraph 29

[10] for all the above- mentioned references see the judgment in the case of Jablonski v. Poland , no. 33492/96 , paragraphs 64-85

[11] see the present judgment, paragraph 36