CEDH · CASELAW;CLIN;ENG — 21 juin 2011

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Switzerland - 3052/06 Judgment 21.6.2011 [Section II] Article 5 Article 5-1-f Extradition Detention pending extradition to the United States of a former Russian minister who, while visiting Switzerland for private reasons, was summoned as a witness in a criminal case: no violation   Facts – In 2004 criminal proceedings were opened against the applicant in the United States on a charge of misappropriating funds that had been provided to Russia by the USA when he was the Russian Minister for Nuclear Energy. On 11   February 2005 he obtained a four-month Swiss visa that he had applied for expressly in order to visit his daughter, who was living in Bern. On 21   February 2002 criminal proceedings were opened in Switzerland against his daughter for money laundering. The suspicions mainly concerned sums of money she had allegedly received from him. Through his daughter’s lawyer the applicant had said that he was prepared to be questioned in Switzerland by the investigating judge and indicated the period in which he intended, in any event, to be in Switzerland. The investigating judge proposed two possible dates for the interview in that period. After arriving in Switzerland on 20   April 2005 the applicant expressed a preference for 2   May. The judge immediately issued a summons that was served at the applicant’s daughter’s private address. On 28   April 2005 the investigating judge contacted a public prosecutor in Pennsylvania to find out any information that might be useful in the proceedings against the applicant’s daughter. During their conversation, the judge mentioned that he would be interviewing the applicant on 2   May. On 29   April 2005 the US Department of Justice sent the Swiss Federal Office of Justice a request for the applicant’s provisional arrest in accordance with the extradition treaty of 14   November 1990 between Switzerland and the USA. On the same day the Federal Office of Justice issued an urgent order for the applicant’s arrest that was sent to the investigating judge. On 2   May 2005, after the interview, the investigating judge notified him that he was under arrest and he was immediately taken by the police to Bern prison. On 3   May 2005 the Federal Office of Justice issued an order for the applicant’s provisional detention with a view to extradition, and it was served on the applicant the next day. On 17   May 2005 Russia also applied for his extradition. On 9   June 2005 the Federal Criminal Court upheld an appeal by the applicant and lifted the extradition arrest order against him. On 14   July 2005 that decision was overturned by the Federal Court. Taking the view that the applicant had been visiting Switzerland for private purposes (to see his daughter) and for business, and not to give evidence as a witness in criminal proceedings, it held that it was not appropriate to apply the “safe conduct” clause and that he could thus be detained. In late June 2005 the US authorities lodged a formal extradition request with the Swiss authorities. The applicant was held in custody until 30   December 2005 and then finally extradited to Russia pursuant to an administrative decision of the Federal Court, which found that priority had to be given to the Russian extradition request, as the applicant was a Russian national and stood accused of committing criminal acts in that country. In 2007 the Federal Criminal Court dismissed a request for compensation for the alleged unlawfulness of the applicant’s detention. Law – Article 5 § 1 (f): The applicant had been taken into custody for extradition purposes, as permitted under this provision. The fact that he had been detained with a view to extradition to the United States but was finally extradited to Russia did not make any difference (this not being related to a finding as to whether the detention was lawful). The purpose of the safe-conduct clause relied upon in the present case was to ensure that a witness required to testify in another country could not be detained there without the substantive or procedural conditions of extradition being observed. The witness thus had immunity and could not be prosecuted or detained in respect of acts committed before his departure from the requested State. As to the question whether the applicant could rely on this clause, he had not travelled to Switzerland specially to testify in the criminal proceedings against his daughter. On the contrary, he had clearly indicated in his statement of 2   May 2005 to the investigating judge that he had freely chosen to go to Switzerland for personal reasons (to visit his daughter) and for business. That version had been corroborated by an article that he had written for a Russian newspaper. In addition, no summons to appear before the Swiss authorities had been served on him in his State of residence, as required by the relevant national and international provisions for the safe-conduct clause to be engaged. The summons to appear on 2   May 2005 had been served on him by the investigating judge at the private home of his daughter, at a time when he was already in Switzerland. As the present case had not involved any inter-State cooperation in accordance with agreements mutual legal assistance, there had been no reason to protect the applicant from arrest or prosecution in respect of acts previously committed and the safe-conduct clause was thus not applicable to his case. The applicant, who frequently travelled outside Russia and had access to lawyers, must have been aware of the risks he was taking by going abroad, especially as criminal proceedings had been brought against him in the United States. It did not appear that, when he had agreed to give evidence to the investigating judge, he had himself raised the question of safe-conduct protection. By agreeing to go to Switzerland without relying on the safeguards provided for in the relevant international mutual-assistance instruments, he had knowingly renounced the benefit of the immunity that arose from the safe-conduct clause. As regards his argument that the Swiss authorities had resorted to trickery with the aim of depriving him of immunity, it was on the basis of the information that he was travelling to Switzerland for private and business reasons and that he was prepared to give evidence in the case concerning his daughter that the investigating judge had summoned him, leaving him a choice of date. The judge had not therefore tricked him into coming to Switzerland. In addition, by informing the US authorities – in connection with the proceedings concerning his daughter – that the applicant was in Switzerland, the Swiss authorities had not acted in bad faith against him: they had simply acted in compliance with the cooperation agreements between the two States to combat cross-border crime. In conclusion, the applicant’s detention, which had been based on a valid arrest order issued for the purposes of inter-State cooperation to combat cross-border crime, had not infringed the safe-conduct clause or contravened the principle of good faith. Conclusion : no violation (four votes to three).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes