Постановление Европейского суда по правам человека от 19.03.2009 «Дело Полонский (Polonskiy) против России» [англ.]

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C.L.R.

S.N.

CONCURRING OPINION OF JUDGE MALINVERNI

(Translation)

1. I voted with the majority in favour of finding a violation of Article 3 and Article 5 § 3 of the Convention. As regards that latter provision, I must however express my doubts as to the manner in which the Court calculated the period to be taken into consideration in determining whether the applicant had been put on trial within a reasonable time, as required by Article 5 § 3.
2. In the present case, on 6 April 2004, the applicant was given a prison sentence for possession of arms and forgery of documents. He served his sentence until 28 January 2008. During that time his detention was thus justified under Article 5 § 1 (a) of the Convention.
3. In that same period a judge remanded him in custody in respect of offences that were unrelated to his initial conviction. This second custodial measure was justified under Article 5 § 1 (c) of the Convention.
4. It transpired that, from 6 April 2004 to 28 January 2006, the applicant's detention fell under a combination of sub-paragraphs (a) and (c) of Article 5 § 1 of the Convention. In other words, for a certain period of time, his detention was based on two different overlapping provisions.
5. In order to assess the length of the detention on remand under Article 5 § 3, the Court considered that it also had to take into account the duration of the applicant's detention under Article 5 § 1 (a), thus bringing it to a total of five years and ten months (see paragraph 144):
"Taking into account that the applicant was detained on the basis of Article 5 § 1 (c), and notwithstanding the fact that his detention was also grounded on Article 5 § 1 (a), the Court considers that this period should be taken into consideration for the purposes of Article 5 § 3."
6. When it then came to assess the reasonableness of the detention pending trial, the Court found a violation of Article 5 § 3 of the Convention.
7. Whilst it is acceptable, this manner of calculating the duration of pre-trial detention may also be called into question. It could also logically be argued that the period covered by sub-paragraph (a) of Article 5 § 1 should not be taken into account as the applicant would in any event have been in prison on that basis.

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