PARTLY DISSENTING OPINION OF JUDGE MARUSTE

While I am in agreement with the majority in finding a violation of Article 5 § 3, because it is in line with the Court’s settled case-law and policy, I find it difficult to agree with the Court’s ruling under Article 41. I am against granting any, even modest, non-pecuniary damages in this particular case.

The applicant was found guilty the by the domestic courts of “supplying drugs on the market” and sentenced accordingly. The quantity under consideration was enormous: 30 kilos of heroin. Drug dealing, especially in such a huge quantity and in a substance of this nature, always involves big money. At the same time, given the amount and nature of the drug in question, it potentially destroys many lives and requires a lot of public money and effort for the treatment of drug addicts and the fight against drug trading. In these circumstances I find it unacceptable to complain about “loss of earnings resulting from holding him (the applicant) in custody and for the costs involved in the proceedings ... (§ 60)”. In these highly controversial circumstances I am of the opinion that it is right and just to limit the Court’s ruling to the finding that a violation constitutes in itself just satisfaction.

DISSENTING OPINION OF JUDGE GARLICKI, JOINED BY JUDGE STRÁŽNICKÁ

To my great regret, I cannot share the majority’s view that in this case there has been a violation of Article 5 § 3 of the Convention.

1. There are well-established principles in the Court’s case-law concerning the assessment of whether or not a period of detention was reasonable. While I accept those principles, I believe that they have not been correctly applied in the J.G. case.

The Court has, on several occasions, indicated that the question of reasonableness of a period of detention cannot be assessed in the abstract. It must be assessed in each individual case according to its special features. For continuing detention, specific indications of a genuine requirement of public interest are necessary.

In the J.G. case the period of pre-trial detention to be considered under Article 5 § 3 was 2 years, 2 months and 6 days. I am inclined to accept that, in the abstract, that length of detention may suggest a possible violation of the Convention, unless convincing arguments demonstrating the continuing necessity of detention can be found. Unlike the majority, however, I believe that such arguments existed in this case.

It should be noted, at the outset, that the case concerned a serious crime, namely drug smuggling, committed by two groups of criminals (J.G. being the connecting person) which have been active for several months in several countries. Thus it was a classic example of organised crime, by definition, presenting more difficulties for the investigation authorities and, later, for the courts to determine the facts and the degree of responsibility of each member of the group. It is also obvious that in cases of this kind, continuous control and limitation of contacts of the accused among themselves and with other persons may be essential to avoid absconding, manipulation of evidence and, most importantly of all, influencing, or even threatening, of witnesses. Accordingly, longer periods of detention than in other cases may be reasonable.

Secondly, it should be noted that in this case the authorities acted with reasonable speed. The applicant was charged on 23 May 1994 , the bill of indictment (composed of 21 charges against 15 co-accused) was lodged on 28 February 1995 and the judgment of the trial court was delivered on 23 May 1997 . Most of the hearings took place between 13 October 1995 and 9 July 1996 . The applicant did not claim that Article 6 § 1 had been violated. Thus, unlike in some other Polish cases, the finding that the time of detention was unreasonably long cannot result from the finding that the proceedings were, as such, longer than acceptable under Article 6 § 1.

Thirdly, the applicant was found guilty of smuggling more than 30 kilograms of heroine (and only because the smuggling took place outside Poland was he convicted of “supplying drugs on the market”). He did not

appeal against his conviction. Since his detention pending trial was deducted from the custodial sentence, he did not spend more time in prison than finally decided by the court.

Fourthly, as found by the majority (see § 53), the suspicion that the applicant had committed the serious offence may initially have warranted his detention. Therefore, the only question which remains is whether and when the continuation of his detention ceased to be warranted by “sufficient” and “relevant” reasons. The majority indicates (§ 54) that once “by the beginning of 1996 the trial court had heard evidence from all the defendants and obtained sufficient evidence to confirm the charge against applicant”, the initial justification for detention lost its validity. I am ready to accept this general finding, but I cannot share the majority’s view of the timing. It should be recalled that the main part of the trial (7 hearings) did not end until 9 July 1996 . Only after that date was there no longer a risk that the applicant might influence testimonies given by the co-accused or by witnesses. As can be seen from the file, the applicant has never confessed and his wife (who was one of the co-accused in the trial), after having confessed during the initial investigation her (and his) involvement in the drug business, changed her testimony when heard by the court. Thus, as long as the evidence had not been fully presented to the trial court, there was a real risk that the applicant might attempt to interfere with the proper course of the proceedings. That is why, in my opinion, the reasons which had initially warranted the detention ceased to exist only after 9 July 1996 and not already “by the beginning of 1996”, as stated by the majority. The application for release was dealt with (and rejected) separately by the trial court on 9 July 1996 and, three weeks later, after hearing J.G.’s appeal, the appellate court ordered his release. This sequence of events demonstrates that there was no unreasonable delay in terminating the applicant’s detention.

Finally, I have problems with sharing the majority’s view that the authorities did not envisage any “non-custodial” measures to guarantee that the applicant would appear for trial (see § 56). Once more, it should be noted that the majority does not question the reasonableness of the detention until the beginning of 1996. Since, in my opinion, the date of 9 July 1996 seems more appropriate in this respect, the alternative measures were adopted promptly afterwards: the detention was replaced by the obligation to report weekly to the police station and to surrender his passport to the court (see § 29).

There is a general rule that the domestic courts, in particular the trial court, are better prepared to examine all the circumstances of the case and take all necessary decisions, including in respect of pre-trial detention. The Strasbourg Court may intervene only in situations where the rights and liberties guaranteed under the Convention have been infringed. I am not convinced that such an infringement could be attributed to the domestic courts in the applicant’s case.

2. Furthermore, I am not convinced that the finding of a violation should, in this case, be accompanied by awarding to the applicant EUR 1,500 in respect of non-pecuniary damages, although I am not joined by Judge Strážnická on this point . I agree with most of the arguments raised in this matter by Judge Maruste. In addition, I would like to stress that Article 41 provides that just satisfaction shall be afforded “if necessary”. The decision concerning just satisfaction must always be taken in accordance with the particular circumstances of the case. In the present case, a decision that the finding of a violation constituted in itself sufficient just satisfaction would better correspond to the nature of the offences committed by the applicant.