DISSENTING OPINION OF JUDGE loizou

I regret that I cannot share the Court’s opinion in its conclusion that there has been no violation of Article 5 § 3 of the Convention in this case.

The facts of the case appear in the judgment of the majority but for the purposes of this brief dissenting opinion it is sufficient to refer to the period of detention and certain of its surrounding circumstances which have to be considered in relation to the applicant’s complaint that he had been detained for an unreasonable period, contrary to Article 5 § 3 of the Convention.

The applicant, a senior police officer, was arrested and detained on 24 December 1992 and his detention ended on 31 July 1995 when his release was ordered by the Palermo District Court. It therefore lasted for two years, seven months and seven days.

The preliminary investigations were concluded by 14 February 1994 when the applicant was committed for trial. The trial commenced on 12 April 1994 before the Palermo District Court and ended on 5 April 1996 when he was sentenced to ten years’ imprisonment for assisting a mafia-type organisation from outside. The applicant was, however, released by the same court on 31 July 1995 for the reasons that are set out in the Court’s judgment (see paragraphs 29 and 30).

As the judicial authorities of the respondent State in their examination of the applicant’s successive applications for release considered them from the point of view that there was a risk that he would abscond or commit further offences or that he would tamper with evidence and suborn witnesses, I shall proceed to examine these issues in that order.

Regarding the risk of absconding, it appears that from 2 February 1994 the judicial authorities were of the view that the risk could be ruled out.

On the question whether there was a risk that the applicant would reoffend there was, as rightly noted by the Commission, a contradiction in the judicial authorities’ reasoning. On the one hand they maintained on 22 May 1995 that there was still such a risk, whereas two months later, at the end of July, they considered that there was no longer such a risk.

Like the Commission, I consider that “from a certain point in time the risk of a further offence could no longer, in itself, justify keeping the applicant in detention on remand and that the presumption that such a risk existed was no longer justified”.

The risk of tampering with the evidence, which was a solid one in the light of the nature of the witnesses available who might be open to manipulation, could have been eliminated if the Italian authorities had exercised a special diligence and had conducted the investigations as speedily as possible, as they had a duty to do.

The excuse of the excessive workload of the courts to which the delay was partly attributed does not constitute a sufficient justification under the requirements of Article 5 § 3 of the Convention.

In matters relating to interference with freedom of the person the presumption of innocence should be overriding, unless the reasons invoked for depriving a person of his liberty completely outweigh all other considerations.

This was not the case for the whole of the period of the applicant’s detention in the present case.

It is for the above reasons that I came to the conclusion that the detention of the applicant had not been shown to have been necessary or justified within the provisions of the Convention for the whole period for which he was detained.

²

[1] Notes by the Registrar

. The case is numbered 92 / 1997 / 876 / 1088 . The first number is the case’s position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case’s position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[2] . Rules of Court B, which came into force on 2 October 1994, apply to all cases concerning States bound by Protocol No. 9.

[3] . Note by the Registrar . For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1998), but a copy of the Commission’s report is obtainable from the registry.