PARTLY DISSENTIN G OPINION OF JUDGE MIJOVIC

1. Regrettably, I am unable in the present case to agree with the majority of the Chamber that there has been a violation of Article 5 § 4 of the Convention for the following reasons.

2. The applicant complained that the fact that she was not permitted to attend the hearing of the prosecution ' s appeal against bail breached her rights under Article 5 § 4 of the Convention.

3. In examining whether the proceedings in this case were in conformity with Article 5 § 4 of the Convention, the majority concluded that there was “no evidence of any compelling reasons in the present case which might have rendered the applicant ' s presence undesirable or impracticable”.

4. For me, the question that should have been considered by the Chamber was whether the applicant needed to be personally present in order “to give satisfactory information and instructions to her counsel” (see Mamedova v. Russia , no 7064/05, § 91, 1 June 2006). When invited to make submissions as to why the interests of justice would require the applicant ' s presence, her counsel replied only by stating “looking at the demeanour of the person, that is all”, following which he informed the judge that he had withdrawn the application (see paragraphs 14 and 43 of the judgment).

5. Furthermore, it is clear from her counsel ' s statement that the applicant did not have any decisive or relevant information of which she alone had first-hand knowledge. Weight should also be given to the fact, relied on by the Crown Court judge, that one of the applicant ' s co-accused had not been present at the hearing and that it would have been unfair to have treated the applicant more favourably. Furthermore, the judge expressed his willingness to allow the applicant to attend in person should her counsel identify any cogent reason why her presence would further assist in his assessment of her character. No such reason ever emerged. Therefore, I see no reason to believe that the applicant ' s attendance at the appeal hearing was crucial.

6. The Crown Court judge decided to allow the prosecution appeal and refused bail on the grounds that the applicant ' s brother, one of the co-accused, was at liberty, possibly overseas, and that there was a risk that she would abscond and join him or provide him with information about the prosecution case and thereby obstruct the course of justice. However, the question may be asked as to whether the applicant would have complained if the judge ' s decision had been different, namely if she had been granted bail even without her being present at the hearing? I do not think so, and that makes the complaint look somewhat artificial and akin to a grievance about the result of the outcome of the hearing.

7. Finally, the majority considered that “fairness required that the applicant ' s request to be present at the appeal be granted” [1] . However, I am of the opinion that the fact that she was represented at the hearing by her counsel fully satisfied “fairness requirements”. The requirements of Article 5 § 4 are not the same as those under Article 6 of the Convention and the difference reflects the different purposes of the two provisions- while “a fair and public hearing” represents the core of Article 6, the proceedings contemplated under Article 5 § 4 are intended, in my understanding, to provide a speedy determination on the lawfulness of detention. I do accept, as pointed out in the judgment, that the procedure under Article 5 § 4 must have a judicial character and must provide guarantees appropriate to the kind of deprivation of liberty in question. i.e. that the proceedings must be adversarial and ensure equality of arms between the parties. Turning to the present case, the facts show that the applicant was represented and that her counsel was given ample opportunity to make submissions on her behalf.

8. For all these reasons, I am of the opinion that in the present case there has been no violation of Article 5 § 4 of the Convention. For that reason I voted against making an award of damages to the applicant. I have voted with the majority on the other points mentioned in the operative part of the judgment (Article 5 § 3 and Article 6).

[1] See paragraph 47