PARTLY DISSENTING OPINION OF JUDGE S KOVLER, HAJIYEV AND JEBENS

To our regret we do not share the opinion of the majority that there has been a violation of the applicant ’ s rights under Article 5 § 3 of the Convention on account of the absence of the applicant ’ s lawyers from the detention hearing of 3 July 2003.

At the outset, we recall that Article 5 § 3 (as well as § 4 of this Convention provision) do not contain any explicit mention of a right to legal assistance, as opposed to Article 6 § 3 ( c ) , cf . Article 6 § 1, which applies when a criminal charge is to be decided upon. It is true that in the recent case of Öcalan v. Turkey (cited in the judgment) the Court found that in certain circumstances a detainee should have access to counsel in order to challenge his detention. Thus, in Öcalan the Court concluded that the applicant had been in need of legal assistance because he had been kept in total isolation, possessed no legal training and had no possibility of consulting a lawyer while in police custody. Further, Article 5 would call for the presence of a lawyer where the person detained is a minor or mentally ill (see Bouamar and Megyeri , both cited in the text of the judgment). However, we do not detect any “special circumstances” in the present case which would call for a mandatory legal assistance, as in the cases cited above. N othing suggests that the applicant ’ s medical condition was such as to prevent his effective participation in the detention proceedings. The applicant was able to consult with his lawyers, at least briefly, when he was formally charged. His state of mind, his education, and his professional background allowed him to understand what was happening in the courtroom and to adduce arguments in his defence.

Indeed, the judge showed a certain degree of rigour by not allowing the lawyers to enter the courtroom when they arrived. Yet such a decision can be reasonably explained by the interests of justice. The Court has repeated on many occasions that detention proceedings require special expedition. The difference of aims explains why Article 5 contains more flexible procedural requirements than Article 6 while being much more stringent as regards speediness. The judge is the ultimate guardian of order in the courtroom, and it is up to him or her to decide whether or not the proceedings should be interrupted or delayed because of one par ty ’ s failure to appear in time.

In the circumstances we do not think that the judge ’ s decision to proceed with the case was arbitrary. We note that from 2 July 2003 the applicant ’ s lawyers knew that their client faced serious charges and might be remanded in custody by the court. Therefore, they were not unprepared for such a development. The domestic law provides that the public prosecutor ’ s request for detention should be examined by a court within eig ht hours from

its receipt (see paragraph 33 of the judgment). As follows from the court ’ s decision (cited in paragraph 13 of the judgment), the court waited for the applicant ’ s lawyers and started the hearing only at 5.50 p.m. – one hour and twenty minutes later than scheduled. The applicant did not submit any explanation as to why his lawyers had been unable to ensure their attendance in the circumstances of the case: they had been informed about the hearing about two hours in advance, and nothing suggests that there were any obstacles preventing them from arriving to the court in time. In such circumstances it would be excessive to require more flexibility on the part of the judge. We would like to refer in this respect to the well-known jurisprudence of this Court which affirms that the State cannot be held responsible for every shortcoming on the part of a lawyer appointed for legal aid purposes (see Kamasinski v. Austria , judgment of 19 December 1989, Series A no. 168, § 65) or chosen by the accused (see Imbrioscia v. Switzerland , judgment of 24 November 1993, Series A no. 275, § 41) .

It is true that the recent case of Istratii and Others v. Moldova (relied on in the judgment) suggests that interfering with the lawyer-client confidentiality may breach Article 5 . However, in our view this case-law is not applicable to the present situation. The applicant ’ s inability to consult with his lawyers resulted not from certain security measures, as in Istratii and others , but from the failure of the lawyers to arrive to the court in time.

In sum, we consider that the belated arrival of the defence lawyers to the hearing of 3 July 2003 cannot be imputed to the State. As to the decision of the court not to let the lawyers in, that decision was not unreasonable, and, as such, was within the discretion of the national judge. In our opinion, by challenging that decision of the judge the majority go too far.

For the reasons specified above we believe that the applicant ’ s rights under Article 5 § 3 were not breached.

PARTLY DISSENTING OPINION OF JUDGE S KOVLER AND JEBENS

We cannot share the conclusion of the majority that there has been a violation of Article 5 § 4 of the Convention as regards the delays in the review of detention order of 26 Dece mber 2003 by Moscow City Court.

First of all we consider that the authorities were responsible only for 14 days and not for 27 days out of the overall duration of the appeal proceedings. The “preliminary appeal” against the decision of 26 December 2003 was introduced by the defence lawyer on 29 December 2003. However it did not contain the detailed reasoning since the hearing record has not been yet made available to the defence. The hearing record was signed on 5 January 2004 but it was not until 14 January that the applicant ’ s lawyer obtained a copy of it. The comments of the defence had reached the court only on 22 January 2004 and were examined on the same day. Thus, about ten days out of this period can be imputable to the authorities. On 23 January the defence lawyers submitted a full version of the grounds of appeal. On 5 February 2004 the applicant himself had submitted additional arguments which were received by the court on 6 February 2004. On 9 February 2004 the Moscow City Court had examined both sets of submissions and dismissed th e appeal. Therefore, between 23 January and 9 February only four days can be attributed to the authorities.

Further, we consider that the factual and legal issues examined at the remand hearing of 26 December 2003 were of considerable complexity. The Court observed in this connection that in certain instances “the complexity of ... issues involved in a determination of whether a person should be detained or released can be a factor which may be taken into account when assessing compliance with the Article 5 § 4 requirements (see , mutatis mutandis , Baranovsky v. Poland [GC ] , no.28358/95 , § 72 , ECHR 2000-III , and Musiał v. Poland [GC], no.24557/94 , § 43 , ECHR 1999-II ).

Finally, we emphasise that the delay complained of occurred in the proceedings before the second-instance court. The court of appeal was supposed to examine the detention order issued by the first-instance court within a procedure of a judicial character. In our view, the “speediness ” requirement under Article 5 § 4 should not apply to the appeal proceedings with the same rigour as to the proceedings before the first instance court. In the circumstances the two weeks which elapsed before the appeal hearing took place did not amoun t to a breach of Article 5 § 4.