SEPARATE OPINION OF JUDGE KALAYDJIEVA

I find myself unable to join the majority of my colleagues in finding that the applicant ’ s rights under Article 5 § 1 were violated on account of the alleged failure by the competent investigating judge to examine the extent to which there existed a reasonable suspicion giving grounds for his requested extradition to the USA. Sub-paragraph (f) of this provision allows legitimate deprivation of liberty “of a person against whom action is being taken with a view to deportation or extradition” and does not further require an examination of the existence of reasonable suspicion, which, moreover, seems to be inherent to the context of extradition. In so far as it may be stated that any deprivation of liberty must be in accordance with domestic law, it is furthermore unclear whether or not – in granting the request of a prosecutor without providing detailed reasoning – the investigation judge did in fact take these circumstances into account.

However, I fully agree with the majority that, in violation of Article 5 § 4, the domestic legislation did not entitle the applicant “to take proceedings by which the lawfulness of his detention [shall] be decided speedily by a court and his release ordered if the detention is not lawful”. Had such proceedings been afforded, it would have been possible for the domestic courts to check the compliance of the applicant ’ s detention with the domestic law. I do agree with the other dissenting judges that such primary scrutiny should lie first and foremost within the competence of the domestic courts.

PARTLY DISSENTING OPINION OF JUDGES MAHONEY AND VEHABOVIC

1 . We regret that we have been unable to agree with our colleagues that there has been a violation of Article 5§1 of the Convention on the facts of the present case. We are not persuaded that there is any sufficient factual grounding to hold that the applicant ’ s detention “with a view to his extradition”, in the terms of Article 5§1(f), failed to satisfy the requirements, stated under that provision, of being “lawful” and ordered “in accordance with a procedure prescribed by law”.

2 . The implications for the Court ’ s review of Convention compliance that follow from these two linked expressions in Article 5§1, implications that were first stated in essence as early as 1979 in the case of Winterwerp v. the Netherlands , 24 October 1979, Series A no. 33, §§39-41, 45-46, are summarised in paragraphs 155-158, 181 and 182 of the judgment in the present case (“the present judgment”) by reference to more recent case-law. In particular,

- not each and every disregard of the domestic formalities entails a breach of Article 5§1 under this head, the core task of the Court being to identify manifest cases of arbitrariness;

- only such breaches of the domestic procedural and material law as would amount to a “gross or obvious irregularity” in the exceptional sense indicated by the case-law should attract the Court ’ s attention.

3 . Unfortunately, to our mind, our colleagues in the majority have strayed outside the confines of that international power of review over compliance with national law, by in effect substituting themselves for the national judicial authorities in expressing their personal interpretation of the content of domestic law, combined with a view as to how the investigating judge should have better applied the domestic law so interpreted. For us, this is not the proper role of the European judge under the subsidiary machinery of protection set up under the Convention, quite apart from the consideration that the factual criticism made of the investigating judge ’ s reasoning does not reach the threshold of seriousness required by the Court ’ s case-law.

4 . The majority note that the primary source of Latvian law for the applicant ’ s pre-extradition detention, as relied on by the Government, was section 702 of the Criminal Procedure Law (see paragraphs 184-185 of the present judgment – the legislative provision in question being set out at paragraph 73 of the present judgment). While that legislative provision is silent on the need for the existence of a reasonable suspicion of commission of the extradition offence, the majority point to the terms of Article 7§3(c) of the Extradition Treaty between Latvia and the United States of America. This treaty provision, which forms part of the legal system of Latvia, states that the extradition request should include “such information as would provide a reasonable basis to believe that the person committed the offence for which extradition is sought” (paragraphs 185-186 of the present judgment – the treaty provision being quoted at paragraph 77 of the present judgment).

5 . Even if the majority ’ s interpretation of the requirements of domestic law (see paragraphs 185-186 of the present judgment) may be correct, we do not consider that the facts justify the majority ’ s assertions (a) (in paragraph 187 of the present judgment) that the investigating judge ’ s reasoning did not refer to the extradition request containing concrete information of the kind required by Article 7§3(c); and (b) (in paragraph 188 of the present judgment) that the investigating judge “did not ground, at least formally, his decision on paragraph 3 of Article 7”.

6 . As we read the investigating judge ’ s decision, he did indeed make such a reference, albeit not an explicit, detailed or lengthily reasoned one, and did place “formal” reliance on Article 7§3(c). That decision, firstly, repeated the terms of the prosecutor ’ s submission according to which “the extradition request contains all the information and documents as required by Article 7§§2 and 3 of the ... Treaty ” (emphasis supplied); it then went on to state that “[the investigating judge] agrees with the prosecutor ’ s proposal [to place the applicant in pre-extradition detention]” (see paragraphs 23-24 of the present judgment). The investigating judge ’ s decision thereafter explicitly invoked sections 701 and 702 of the Criminal Procedure Law and, in particular, sub-section 1 of section 702. By referring back to and expressly approving the terms of the prosecutor ’ s proposal, the investigating judge was incorporating into his own reasoning the reasoning of the prosecutor.

7 . We would agree with the majority that the investigating judge could be criticised for having “cut corners” and that it would have been preferable, in terms of the quality of justice dispensed, for him to have specified his written reasoning in more detail rather than contenting himself with a reference back to the reasoning of the prosecutor, notwithstanding that that reasoning of the prosecutor was summarised earlier in his decision and that the applicant would have been well aware of it. However, such criticism, even when taken with the other criticism that the majority makes of the quality of the investigating judge ’ s reasoning (see paragraph 188 of the present judgment), is simply not enough to warrant this Court ’ s holding that the contested pre-extradition detention, ordered by an independent and impartial judge after an adversarial hearing and after delivery of a decision adverting to the relevant legal provisions, was neither “lawful” nor “in accordance with a procedure prescribed by law”. There is no suggestion of an unfair or improper procedure or of an arbitrary deprivation of liberty issuing from an inappropriate authority (see Winterwerp , cited above, §45), let alone no cause for characterising the applicant ’ s judicial treatment as “a manifest case of arbitrariness”, and no suggestion of any “gross or obvious irregularity” in the interpretation and application of domestic procedural and material law, as required by the Court ’ s case-law for a violation to be found on this ground. Regrettably, we feel, the present judgment on this point lays the Court open to a charge of addressing admonitions to the national courts on how they should be interpreting and applying their own domestic law and be going about the details of their judicial business, a task that is not appropriate for this international Court. Although the investigating judge ’ s written decision may have represented a less than ideal judgment in terms of its reasoning, the pre-extradition detention it ordered cannot, on the facts and on the Convention criteria laid down in this Court ’ s case-law, be regarded as anything other than “lawful” and “in accordance with a procedure prescribed by law”.