JOINT DISSENTING OPINION OF JUDGES TULKENS, SAJÓ AND PINTO DE ALBUQUERQUE

1. This case concerns the de tention in Switzerland , from 2 May to 30 December 2005 , of the former Russian Minister for Energy, with a view to his extradition to the USA . He was ultimately extradited to the Russian F ede ration on account of the priority of the request .

2. The Swiss authorities secured the applicant ’ s presence in Bern so that he could give evidence as a witness in criminal proceedings against his daughter, and they allegedly took advantage of this summons to arrest him with a view to his extradition . Under A rticle 5 § 1 of the Convention, the main question that arises is that of the application of the safe-conduct clause, as provided for in A rticle 12 of the European Convention on mutual assistance in criminal matters of 20 Ap ril 1959 , to which both Switzerland and the Russian Federation are parties .

3. We do not share the conclusion of the majority, who have concluded that the applicant ’ s detention for almost eight months with a view to his extradition was ordered “in accordance with a procedure prescribed by law” . We thus wish to explain the reasons for our dissent .

4. It should be noted at the outset that a difference of opinion can be seen between the Federal Criminal Court ’ s decision of 9 June 2005 and that of the Federal Court of 14 July 2005. The former took the view that the protection provided by the safe-conduct clause in A rticle 12 of the European Convention on mutual assistance in criminal matters was applicable to the applicant ( see paragraph 2 4 of the judgment ) , whilst the latter found the opposite, considering that the Federal Criminal Court had given an erroneous and incomplete assessment of the facts ( see paragraph 2 8 of the judgment ).

5. In this context, the chronology of the events is important . On 5 Ap ril 2005 the applicant made it known that he was prepared to go to Switzerland to be questioned as a witness by the investigating judge in connection with criminal proceedings against his daughter for money laundering. On 15 Ap ril 2005, before he left Russia , the investigating judge suggested to h er lawyer two possible dates for a hearing at the court in Bern . The applicant arrived in Switzerland on 20 Ap ril 2005. On the same day the investigating judge issued a summons in accordance with the practice in the C anton of Bern , scheduling the hearing for 2 May 2005. The summons was sent to the private address of the applicant ’ s daughter . A fter a conversation on 28 Ap ril 2005 between the investigating judge and a public prosecutor in Pennsylvani a , who was thus informed of the applicant ’ s presence in Switzerland , the US Department of Justice , on 29 Ap ril 2005, sent a request for the applicant ’ s provisional arrest to the Federal Office of Justice, which ordered his urgent arrest that same day. At the end of the hearing of 2 May 2005, the investigating judge informed the applicant that he was under arrest .

6. It can clearly be seen from the case file that the summoning of the applicant by the investigating judge on 15 Ap ril 200 5 did not constitute a form al notification in compliance with the requirements of the European Convention on mutual assistance in criminal matters, the provisions of which include the safe-conduct clause ( Article 12). Neither did it comply with Recomm e ndation R (83)12 of the Committee of Ministers of the Council of Europe of 23 September 1983 , concerning safe conduct for witnesses under the European Convention on mutual assistance in criminal matters , which emphasises the importance of meeting all the requirements of the summons, in particular by expressly pointing out the scope of that guarantee in the requesting State . In the applicant ’ s submission, having regard to the negotiations that had taken place with the investigating judge prior to his departure , it was clear that he was going to be questioned as a witness , and this explained why he had accepted a more informal means of calling him for questioning on 2 May 2005 in the proceedings concerning his daughter .

7. The safe-conduct principle is clear : “A witness or expert, whatever his nationality, appearing on a summons before the judicial authorities of the requesting Party shall not be prosecuted or detained or subjected to any other restriction of his personal liberty in the territory of that Party in respect of acts or convictions anterior to his departure from the territory of the requested Party” ( see paragraph 3 1 of the judgment ). Admittedly, if the individual subsequently commits offences in the requesting State the immunity will not apply , just as it does not apply if he or she remains in the requesting State for a period exceeding that for which the immunity has been granted .

8. This is a principle of international law which has been recognised and enshrined in numerous multilateral treaties ( see Article 7 § 18 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances , 1988 ; Article 18 § 27 of the United Nations Convention against Transnational Organized Crime, 2000 ; Article 46 § 27 of the United Nations Convention against Corruption, 2003) and bilat eral treaties ( for example : Article 27 § 1 of the mutual legal assistance treaty between the USA and Switzerland ; Article 34 § 2 of the mutual legal assistance treaty between the USA and Turkey ; Article 9 § 1 of the mutual legal assistance treaty between the USA and the Netherlands ), and the headquarters agreements of international courts and tribunals ( Article 26 of the Headquarters Agreement between the International C riminal Court and the Host State, 2007; Article 18 of the Agreement between the United Nations and the Kingdom of the Netherlands concerning the Headquarters of the International Criminal Tribunal for the former Yugoslavia, 1994; Article 18 of the Agreement between the United Nations and the United R epublic of Tanzani a concern ing the Headquarters of the International Tribunal for Rwanda , 1995).

9. This principle has also been recognised by the international criminal tribunals . It was applied, for example, in the decision of the International Criminal Tribunal for the former Yugoslavia of 25 June 1996 on the defence motions to summon and protect defence witnesses, and on the giving of evidence by video-link , in which the Chamber observed that “[o] rders for safe conduct as provided for between countries protect a person from persecution and restriction of liberty in the requesting country in relation to acts which preceded his departure from the requested country for purposes of appearing and testifying in response to a request” . The Chamber further noted that safe conduct provisions had been included in nearly all mutual assistance treaties and several multilateral agreements [1] . More recently, the safe conduct principle has been reiterated , for example in the same T ribunal ’ s judgment of 12 June 2007 in the Martić [2] case and in the decision s of the International Criminal Tribunal for Rwanda in Nyiramasuhuko , 17 June 2005 , and Joseph Nzirorera , 24 March 2009 [3] .

10. International legal opinion has also pointed out that the safe conduct principle derives from the more general principle of good faith, which should protect the trust of a witness who voluntarily complies with a legal assistance request from another State [4] .

11. In the present case, one particular factor appears essential and decisive in our view: the judicial authorities ’ actions seem to run counter to their own guidelines and national authorities in such matters . In recent guidelines the Federal Office of Justice has itself explained that safe conduct should be guaranteed to witnesses who have not been notified through the appropriate international legal assistance mechanism [5] . This position reflects the well-established opinion in international law that safe conduct must also apply to witnesses or experts who have been notified in an informal or illegal manner [6] . Furthermore, the Federal Court itself gave a ruling to this effect on 17 May 1995 , rightly recognis ing the right to safe conduct even though the notification by the national authorities had been made known to the person concerned informally by counsel .

12. In those circumstances we believe that it is reasonable to argue, as the Federal Criminal Court did , that the applicant could have assumed in good faith that he would benefit from protection under A rticle 12 of the European Convention on mutual assistance in criminal matters .

13. The majority conclude that “[b] y consenting to travel to Switzerland without availing himself of the safeguards in the relevant mutual legal assistance instruments, he knowingly waived the benefit of the immunity that the safe-conduct clause would have provided ” ( see paragraph 6 8 of the judgment ). We believe that such an allegation is ill-founded and sp e culati ve . Moreover, it is hardly compatible with the very raison d ’ être of Article 5 of the Convention , namely protection against arbitrariness .

14. A rticle 5 § 1 of the Convention requires that any deprivation of liberty must be “in accordance with a procedure prescribed by law”; moreover, the authorised cases of deprivation of liberty are limited to those listed in the text itself . I t is well-established case-law that A rticle 5 must be interpreted strictly by the Court, as only a narrow interpretation of those exceptions is consistent with the aim of that provision ( see , mutatis mutandis , K.-F. v. Germany , 27 November 1997, § 70, Reports of Judgments and Decisions 1997 ‑ VII ; ÄŒonka v. Belgium , no. 51564/99, § 42, ECHR 2002 ‑ I ; and D.G. v. Ireland , no. 39474/98, § 74, ECHR 2002 ‑ III ). In addition, for arbitrariness to be excluded, conformity with the purpose of the restrictions permitted by the relevant sub-paragraph of Article 5 § 1 is required in respect of both the ordering and the execution of the measures involving deprivation of liberty (see Winterwerp v. the Netherlands , 24 October 1979, § 39, Series A no. 33; Bouamar v. Belgium , 29 February 1988, § 50, Series A no. 129; and O ’ Hara v. the United Kingdom , no. 37555/97, § 34, ECHR 2001-X).

15. In the present case, we therefore take the view that the applicant ’ s deprivation of liberty was not “in accordance with a procedure prescribed by law” within the meaning of A rticle 5 of the Convention, sinc e he did not enjoy safe-conduct immunity . In the light of the raison d ’ être of A rticle 5, a person who is notified informally should be granted the same immunity as a person notified according to the applicable formalities . In any event, the errors committed by the requesting State in the application of the c onvention of 29 Ap ril 1959 could not deprive the applicant of his right to liberty under the Convention .

16. Lastly, the applicant could not be placed at a disadvantage on account of the fact that he had accepted the request for judicial assistance. His voluntary hearing as a witness on 2 May 2005 clearly facilitated the intergovernmental coop e ration provided for by the 1959 European Convention on mutual assistance in criminal matters . The essence of safe conduct lies precisely in the link established between a witness who agrees to cooperate with the courts and the temporary immunity granted to th at witness, regardless of the circumstances surrounding the notification. T hat link was broken when the respondent State failed to recognise the applicant ’ s immunity .

17. For a ll these reasons we cannot but conclude that there has been a violation of A rticle 5 § 1 of the Convention.

[1] Case no. IT-9 4 -1-T , Prosecutor v . Duško Tad ić alias “Dule” , decision of 25 June1996, § 9. See also F.P. King and A.-M. L a R osa , “The Jurisprudence of the Yugoslavia Tribunal: 1994-1996”, European Journal of International Law , 1997, vol. 8, no. 1, p. 151; A.-M. L a R osa , Juridictions pénales internationales. La procédure et la preuve , Paris, Presses universitaires de France, 2003, pp. 279 et 280.

[2] Affaire no. IT-95-11-T , Prosecutor v . Milan Martić , judgment of 12 June 2007, § 534.

[3] See K. Margetts and P. Hayden , “ Current Developments at the Ad Hoc International Criminal Tribunals ” , Journal of International Criminal Justice , 2009, vol. 7, no. 5, p. 1178.

[4] See, to this effect , R. Zimmermann , La coopération judiciaire internationale en matière pénale , Br ussels, Bruylant, 2009, p. 199, and P. Popp , Grundzüge der internationalen Rechtshilfe in Strafsachen , B asel , Helbing & Lichtenhahn, 2001, p. 51, note 82.

[5] L’entraide judiciaire internationale en matière pénale : directives , Bern , Office fédéral de la justice, 1998, p. 39; and this passage can also be found in the 2010 edition of the same guidelines, p. 83.

[6] H. Grützner and P.-G. Pötz ( dir. ) , Internationaler Rechtshilfeverkehr in Strafsachen , 2 nd edition, Heidelberg, 1992, vol. III, “observations préliminaires”, no. 15 ; P. Popp , Grundzüge der internationalen Rechtshilfe in Strafsachen , op. cit . ; and C. Markees , “Entraide internationale en matière pénale – Troisième partie : autres actes d’entraide”, Fiches Juridiques Suisses , no. 423c, ch. 125, “sauf-conduit”, no. 3.