CONCURRING OPINION OF JUDGES ROZAKIS AND VAJIĆ

We have voted together with the other judges of the Chamber for a violation of Article 5 § 4 of the Convention in the circumstances of this case, because we considered that the applicant did not have the opportunity to appear in person before the appeal court “in order to plead her release on the grounds intimately linked to her personal situation” (paragraph 91 of the judgment. See also paragraph 12 of the facts of the case). Given the fact that the appeal court attached particular importance to the applicant ’ s character, her appearance in person could have assisted the appeal court to assess with more clarity this issue, and could have given the opportunity to the applicant to defend her position effectively (See, mutatis mutandis , Grauzinis v. Lithuania, paragraph 34).

We have still strong doubts concerning the second limb of the Chamber ’ s argumentation, when it considers that the applicant ’ s appearance in person was also indispensable, in order for her to be in a position to explain the appalling conditions of her detention, “of which her counsel did not have sufficient knowledge” ( ibid ). We think that complaints of a person about conditions of detention, although they may establish a ground of invocation and/or violation of Article 3 of the Convention, do not enter into the ambit of protection of Article 5, paragraph 4, which entitles everyone who is deprived of his liberty by arrest or detention to take proceedings “by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if detention is not lawful”.

Although the use of the words “lawfulness” and “lawful”, in the context of a detention, may be considered as covering also situations where the conditions of detention are violating internal law or the Convention itself, still the case-law of the Strasbourg Court has never interpreted that provision in this manner. The terms “lawfulness” and “lawful” have been constantly interpreted as to include only procedural guarantees contained in national law or the Convention, and not the substantive conditions of detention. After all, the examination of the lawfulness is not an abstract exercise, but is linked to the demand of the release of a detained person, if the detention proves not to be lawful; and we very much doubt that the consequence of a judicial decision, in the event that the conditions of detention are not in conformity with internal or international standards, is the release of a detained person. Obviously such a complaint, if accepted by the courts, could lead to a change of the conditions of detention, but not to a release. Hence an invocation of these conditions by a detained person cannot constitute a ground for the applicability of Article 5 paragraph 4, although, admittedly it falls under the protection of other articles of the Convention.