CONCURRING OPINION OF JUDGES GANSHOF VAN DER MEERSCH AND WALSH

(Translation)

While concurring in the result, we regret that we are unable to agree with the reasoning in the judgment in respect of one matter.

In our view, a procedure exclusively in writing is not sufficient to satisfy the requirements of Article 5 para. 4 (art. 5-4) of the Convention, even if the person concerned is assisted by a lawyer and has the right to challenge the lawfulness of his detention in the appropriate courts.

Although Article 5 para. 4 (art. 5-4) is silent on the point, it seems to us that this provision is fully satisfied only if the detainee has an opportunity to be heard in person. The Article in question (art. 5-4) is based on the institution of habeas corpus, which is based on the principle that the person concerned appears in flesh and blood before the court.

Such a view is moreover consistent with previous decisions of the Court, which has hitherto tended - as the judgment points out - to recognise the need for a court hearing. Admittedly, the case-law so far concerns only the eventualities contemplated in sub-paragraphs (c) and (e) in fine of paragraph 1 (art. 5-1-c, art. 5-1-e), but we see no reason why it should not also apply to a person "against whom action is being taken with a view to ... extradition" (sub-paragraph (f)) (art. 5-1-f).

In short, the applicant ’ s appearance in person before the Federal Court was necessary in the instant case.

PARTIALLY DISSENTING OPINION OF JUDGE BINDSCHEDLER-ROBERT

(Translation)

I agree with the majority in holding, as to the second application for release (but not the first one), that the requirement that decisions must be taken "speedily" was not complied with. On the other hand, I regret that I cannot follow the majority as regards the procedural requirements it believes must be inferred from Article 5 para. 4 (art. 5-4).

I am of the view that the "proceedings" contemplated in that provision are not to be equated with the civil or criminal proceedings envisaged in Article 6 (art. 6); their purpose is to allow judicial supervision of administrative measures and they may be instituted afresh for as long as detention lasts. The safeguards of Article 6 (art. 6) do not therefore apply; what matters is that the procedure followed should enable the court to take a decision in full knowledge of the facts.

It will be noted, moreover, that a more complicated procedure would run a great risk of failing to comply with the requirement in Article 5 para. 4 (art. 5-4) that the decision should be taken "speedily"; doubtless it is no accident that Article 6 (art. 6) itself provides that a hearing must take place within a reasonable time. The requirement to take a decision "speedily" is certainly to be associated with simplified procedure (Neumeister judgment of 27 June 1968, Series A no. 8, p. 44, para. 24).

Admittedly the Court has already held in previous cases that a court hearing is necessary too in connection with Article 5 para. 4 (art. 5-4). In the Schiesser case, however, it repeated that the safeguards entailed by the judicial procedure stipulated in this provision had to be "appropriate to the kind of deprivation of liberty in question" (judgment of 4 December 1979, Series A no. 34, p. 13, para. 30, in which the De Wilde, Ooms and Versyp judgment of 18 June 1971 is cited, Series A no. 12, p. 41, para. 77). In cases where review of the lawfulness of detention covers the merits of the disputed measure - as where confinement of a mentally ill person is involved (Winterwerp judgment of 24 October 1979, Series A no. 33, p. 24, para. 60) - it may be necessary to require that an applicant be heard in person. The situation is different, however, in the case of extradition, where detention is the rule, as the requested State may be required under international law to hand over the person being proceeded against to the requesting State - without any further requirements having to be satisfied. Furthermore, detention pending extradition, contrary to the type of detention at issue in the Winterwerp case, is an interim measure determined merely by the existence of an administrative extradition procedure. In the instant case, moreover, the applicant was not challenging the lawfulness of his detention nor that of the extradition procedure (which he did in the extradition proceedings themselves); he was merely seeking to be provisionally released, as was permitted on certain conditions by the law in force in Switzerland at the time (section 25 of the Federal Act of 22 January 1892 on Extradition to Foreign States). It could even be disputed that these were proceedings within the meaning of Article 5 para. 4 (art. 5-4). However that may be, the authority empowered to grant provisional release could only do so if there were weighty considerations in favour of such a step, and even then it was not bound to do so. There accordingly did not exist any individual right to (provisional) release.

The reason put forward by the applicant in the present case was his state of health, which he claimed had been seriously worsened by the detention; the truth and the seriousness of this were attested in medical certificates, and it is unlikely that the applicant ’ s appearance in person would have been of assistance to the court in reaching a view of the question; besides, nothing prevented the court from obtaining additional medical opinions.

Having regard to all the foregoing considerations and to the circumstances as a whole, it seems to me that - at least in general - provisional-release measures taken in connection with extradition proceedings must not be subject to complex procedure based on a civil procedure - with a double exchange of pleadings, or at all events an opportunity to express views on the submissions made by the "opposing side" - and that in the instant case neither the position in Swiss law (discretion of the decision-making body) nor the reason put forward (state of the applicant ’ s health) called for any departure from that rule.