CASE OF SANCHEZ-REISSE v. SWITZERLAND
Violation of Art. 5-4;Costs and expenses award - Convention proceedings
C. Russo
9. Mr. Leandro Sanchez-Reisse, an Argentine businessman born in Buenos Aires in 1946, had for some years been resident with his wife and their two children in the United States (Florida). He was arrested in Switzerland with a view to being extradited but objected to his extradition and applied for provisional release, as described below. 10. On instructions from the Federal Police Office ("the Office"), the Vaud cantonal police arrested the applicant in Lausanne during the night of 12/13 March 1981 and immediately transferred him to Champ-Dollon prison in Geneva. The authorities of the Argentine Republic had sent radio-telegrams to the authorities of the Swiss Confederation on 10 and 11 March asking for help in identifying the five persons thought to be responsible for kidnapping a Uruguayan banker, K, in Buenos Aires on 19 February. The kidnappers had demanded a ransom and had required K’s wife and sister to go first to Paris, then to Zürich - where the money was placed by them in an account opened in their name with the Crédit Suisse - and then to Geneva. 11. In a radio-telegram dated 13 March 1981, Interpol Buenos Aires requested the provisional arrest of the suspects with a view to extradition. On 16 March, the Office accordingly issued a warrant for Mr. Sanchez-Reisse’s arrest, and this was served on him on 18 March 1981. 12. On 16 and 17 March, the Embassy of the Argentine Republic in Bern confirmed Interpol’s request for the arrest of the five Argentine nationals. In "notes verbales" dated 6 April, 29 April and 4 May, it produced various supporting documents. Together, these notes and documents constituted a formal extradition request. 13. In a letter of 13 May 1981, the Office forwarded the documents received to the Geneva authorities, for consideration at the hearing of the applicant. Copies were sent to the latter’s lawyer and to the Public Prosecutor of the Canton of Geneva ("the Public Prosecutor"). On 18 May, the Public Prosecutor suggested that the Office officially inform the Argentine authorities of offences of receiving stolen goods which Mr. Sanchez-Reisse was charged with having committed in Switzerland, but he pointed out that they had not given rise to any penalties in that country. He refused to institute proceedings in Geneva, and on 6 August the Indictments Chamber of the Canton decided that there were no grounds for opening an investigation there. 14. At the hearing held in the meantime, which was attended by his lawyer, the applicant had indicated his refusal to be extradited. In a letter of 19 June, the Office gave the lawyer until 17 August 1981 to state the reasons for his client’s objections. It extended this time-limit to 17 September and subsequently to 1 October. 15. In the meantime, on 26 May 1981, the Embassy of the Argentine Republic submitted letters rogatory to the Office concerning the kidnapping of an Argentine financier, C, in Buenos Aires on 8 May 1979, for which the same group of persons was thought to have been responsible. The letters rogatory were executed in Geneva on 18 June 1981. By "notes verbales" dated 8, 10 and 13 July, the Embassy formally submitted a second request for the extradition of Mr. Sanchez-Reisse, among others. 16. On 11 August, the Office instructed the Geneva cantonal authorities to hold a second hearing on the applicant’s extradition, this time on the basis of the documents relating to the kidnapping of C. At the hearing the applicant continued to resist extradition. 17. On 25 September 1981, Mr. Sanchez-Reisse’s lawyer sent the Office a memorandum setting out the reasons for the applicant’s objection to being extradited (see paragraph 14 above). The reasons included the following: the documents submitted in support of the extradition request did not satisfy the formal requirements laid down in the Convention on the Extradition of Criminals between Switzerland and the Republic of Argentina (see paragraph 32 below), since they contained no description of the offences with which the applicant was charged; as regards the two kidnappings of which he was accused by the Argentine authorities, which were moreover of a political character, Mr. Sanchez-Reisse was innocent; if extradition was granted, it would be contrary to Articles 3 and 6 (art. 3, art. 6) of the European Convention on Human Rights, as it would expose the applicant to inhuman treatment and he would have no guarantee of a fair trial. 18. On 3 November 1982, the Federal Court (1st Public-Law Division) accepted Mr. Sanchez-Reisse’s objection and accordingly decided not to authorise his extradition. It was of the opinion that "the overall circumstances [gave it] serious reason to fear that the treatment which might be accorded to the objectors by the requesting State, either before judgment or during the enforcement of sentence, would violate the rules governing respect for human rights". The Court further decided that the offences mentioned in the extradition request should, with one exception, be the subject of a prosecution and trial by the appropriate Geneva cantonal authorities, pursuant to Article IX, first paragraph, of the Convention on Extradition. Lastly, it directed that the applicant be kept in detention with a view to extradition until the Geneva authorities had ruled on his detention on remand in the criminal proceedings that were to be instituted. 19. On the following day, the Public Prosecutor ordered that a criminal investigation be opened against Mr. Sanchez-Reisse and the investigating judge preferred charges of, inter alia, attempted extortion against him. As a result, the detention with a view to extradition was transformed into detention on remand. 20. On 9 December 1982, the Indictments Chamber of the Federal Court instructed the Zürich cantonal authorities to prosecute the applicant and bring him to trial. On 25 April 1983, the applicant admitted the charges of attempted extortion and blackmail in the K case (see paragraph 10 above). On 29 November 1983, the Supreme Court of the Canton of Zürich (1st Criminal Chamber) sentenced him on these charges to imprisonment for four years and nine months, subject to deduction of the 393 days he had spent in detention on remand. 21. Having been put under a regime of semi-liberty, the applicant absconded in November 1985. During his detention with a view to extradition, he had on three occasions applied for release. 22. On 9 November 1981, Mr. Sanchez-Reisse and his wife, who had been arrested at the same time and for the same reasons as he had, had requested the Office to order their provisional release. On 25 November, the Office accepted the request submitted by Mrs. Sanchez-Reisse on payment of a surety of 100,000 SF. In order to facilitate his wife’s release, the applicant had withdrawn his own request. 23. On 25 January 1982, Mr. Sanchez-Reisse made a fresh request to the Office, arguing: that for almost a year he had been detained with a view to his extradition, whereas he had objected to the latter measure; that he was not guilty of the offences with which he was charged by the Argentine authorities; that the evidence submitted by them was manifestly inadequate; and that his state of health had seriously worsened as a result of his detention. 24. On 2 February 1982, the Office informed the applicant’s lawyer that it had decided not to grant the request, which would consequently be passed to the Federal Court (see paragraph 34 below). It considered, in the light of information provided by the medical service of Champ-Dollon prison, that the medical supervision and psychiatric treatment being undergone by the applicant were compatible with his remaining in custody. It drafted a 19-page report for the Federal Court on the five Argentinians suspected of the kidnapping of K, together with an aide-mémoire. 25. On 15 February 1982, the Office forwarded the request for release to the Federal Court, together with the two documents referred to above, "so that a decision could be given by a court in accordance with Article 5 para. 4 (art. 5-4) of the European Convention on Human Rights". At the same time it expressed a negative opinion on the request since release did not seem to it to be "required by the circumstances", within the meaning of section 25 of the Federal Act of 22 January 1892 on Extradition to Foreign States (see paragraph 34 below). 26. On 25 February 1982, the Federal Court rejected the request. Mr. Sanchez-Reisse was notified of the operative provisions of the decision on the following day and of the reasons therefor on 3 March. The Federal Court took several factors into consideration: the extradition request submitted by the Argentine authorities concerned not only the kidnapping of the Uruguayan banker K but also that of the Argentine financier C, and the possibility that the applicant had been involved in one of these cases could not be ruled out; there was a real risk that he might abscond since he resided in the United States and not in his country of origin; he had not shown that he was unfit to undergo detention and, furthermore, he could obtain the assistance of a doctor in case of need. 27. In the meantime, on 18 February, Mr. Sanchez-Reisse had written to the Presidents of the Geneva Courts and to the Public Prosecutor requesting immediate release. On 23 February, a President of the Geneva Indictments Chamber said that it was for the Federal Court to give a ruling on requests for release submitted by a person who was detained with a view to extradition. On 9 March 1982, the applicant’s lawyer replied that the proceedings in the Federal Court were entirely in writing and that the Court had taken a month to reach a decision. The requirements of Article 5 para. 4 (art. 5-4) had not been complied with: in particular, the detainee had not appeared in person and a decision had not been rendered speedily. The lawyer therefore confirmed the request for release and asked the Cantonal Court to give an interpretation of the provision in question. In a letter dated 15 March 1982, the three presiding judges of the Geneva Indictments Chamber stated that it was not competent to deal with the applicant’s release as he had been detained with a view to extradition under a Federal arrest warrant. 28. On 21 May 1982, Mr. Sanchez-Reisse submitted a further request for release to the Office; he claimed that release was justified because of his deteriorating health and he supplied two medical certificates. Although the first of these, dated 18 March, stated that he could still be cared for by the prison authorities, the second, dated 18 May, reported progressive deterioration: "The lack of a frame of reference in <the applicant’s> current surroundings is conducive to the development of his paranoid ideas and problems in evaluating reality." 29. The request was received by the Office on Monday, 24 May. It had just finished investigating the extradition request and therefore passed the complete file to the Federal Court on that same day. It did not enclose any opinion, but on 2 June 1982 the Court requested it to submit one within ten days. 30. The President of the 1st Public-Law Division also informed the applicant’s lawyer that the Office had been asked for information about the request for release. 31. On 6 July 1982, the Federal Court rejected the request, as the Office had recommended in an opinion of 9 June: the Court took the view that Mr. Sanchez-Reisse had provided no new material important enough to warrant making a decision different from that of 25 February 1982 (see paragraph 26 above). This decision was notified on 9 July. 32. The procedure for extradition between Switzerland and Argentina is governed in the first instance by a bilateral treaty and, subsidiarily, by municipal law. The Convention on the Extradition of Criminals between Switzerland and the Republic of Argentina, signed on 21 November 1906, has been binding on both countries since 1912. It lays down the formal and substantive conditions applying to extradition between the two countries but does not, either expressly or tacitly, deal with the methods to be used by the courts for supervising detention with a view to extradition. It is therefore Swiss law which applies on this point. At the time of the facts in question and until 31 December 1982, the instrument applicable was an Act of 1892. 33. The Federal Act of 22 January 1892 on Extradition to Foreign States ("the 1892 Act") instituted a sharing of powers in the field in question between the Federal Council (Central Government) (which, for obvious practical reasons, had delegated its powers to the Federal Police Office) and the Federal Court, the only judicial authority in Switzerland with jurisdiction in extradition matters. 34. It was to the Office that requests for provisional arrest with a view to extradition and formal extradition requests were addressed. The Office corresponded directly with the accredited diplomatic missions in Bern - without necessarily going through the Federal Department of Foreign Affairs - and with the Secretariat General and the national central offices of Interpol. It decided whether there was a case for arresting the wanted person and, if so, served on that person a "warrant for arrest with a view to extradition", which was immediately enforceable throughout Swiss territory. Once the person had been arrested, it was the Office which conducted the proceedings. It ordered that he be heard by the appropriate cantonal authorities on the extradition request, appointed counsel to represent him if necessary, corresponded with the lawyers involved and informed them of the time-limits to be observed, checked the detainee’s mail and granted or refused him the right to be visited, authorisation to make telephone calls, and so on. Above all, it was the Office itself which, in most cases, ruled on extradition requests and requests for provisional release. The former power (to rule on extradition requests) was conferred by section 22 of the 1892 Act and was exercisable where "the arrested individual [had] indicated his consent to his being handed over without delay and ... there [was] no legal impediment to his extradition, or ... he [had] opposed it only on grounds not based on [the 1892] Act, on the Treaty or a declaration of reciprocity ...". The second power (to rule on requests for provisional release) was conferred by section 25, second paragraph, and was exercisable in all cases where the matter had not been referred to the Federal Court. The Office could grant release if this appeared to be required by the circumstances (section 25, first paragraph). Furthermore, whenever the Federal Court was to give a ruling, the Office carried out the requisite investigations. If the Court refused to authorise extradition, the Office was bound by that decision. On the other hand, if the Court authorised extradition, the Office could still, for important reasons of political expediency, refuse to extradite the person concerned. Lastly, it was for the Office to give instructions for the handing over of the person extradited, arrange the practical details and inform the foreign State of the action taken on its request. 35. The Federal Court was involved in extradition proceedings in two sets of circumstances. If the arrested person protested against the extradition itself by raising an objection based on the Act, a treaty or a declaration of reciprocity (section 23), the Federal Court was competent to rule on the merits of the extradition (section 24), if necessary after ordering additional investigations (section 23, second paragraph) and the personal appearance of the detainee (section 23, third paragraph). In the latter event - which was very rare -, the hearing took place in public, unless there were serious reasons to the contrary (section 23, third paragraph), and the detainee could be assisted by a lawyer, assigned by the court if need be. Where the case had been referred to it (section 25, second paragraph), i.e. if an objection related to the extradition itself, the Federal Court was also responsible for ruling on any request for provisional release lodged by the person who was detained with a view to extradition. It could authorise his release if it appeared that the circumstances so required (section 25, first paragraph). 36. In a report to the Federal Assembly in 1968, the Swiss Government drew attention to a number of shortcomings in the 1892 Act from the point of view of the European Convention on Human Rights which it was contemplating ratifying: "Persons provisionally arrested on the orders of the Federal Department of Justice and Police, in compliance with the wishes of the requesting State, have no right of appeal to a court against the decision to arrest them. The Federal Act on Extradition to Foreign States is, however, being revised, and it is planned to take this opportunity to provide for an appeal to a court against arrests, in accordance with Article 5 para. 4 (art. 5-4) of the Convention." (Federal Bulletin, 1968, vol. II, pp. 1102-1103) 37. The Confederation ratified the Convention on 28 November 1974. Although declared inadmissible by the Commission on 6 October 1976 (Decisions and Reports no. 6, pp. 141-155), the Lynas v. Switzerland application (no. 7317/75) revealed that the extradition law fell short of the requirements of Article 5 para. 4 (art. 5-4). The Government considered that, pending the entry into force of a new Federal Act on international mutual assistance in criminal matters, it should adopt a solution that would meet any difficulty encountered. Taking as its basis the fact that Article 5 para. 4 (art. 5-4) was directly applicable in Switzerland, the Federal Department of Justice and Police took the initiative of exchanging views with the Federal Court. By an exchange of (unpublished) letters dated 27 December 1976, 28 January 1977, 29 April 1977 and 9 May 1977, the two institutions agreed to interpret sections 22 to 25 of the Act, in particular the second paragraph of section 25, in such a way as to establish the general and exclusive jurisdiction of the Federal Court (1) to rule on any objection lodged against arrest with a view to extradition (from then on this legal remedy was expressly mentioned on the back of the arrest warrant, receipt of which had to be acknowledged in writing by the person concerned), and (2) to rule on any request for provisional release, even when, by reason of the absence of any objection to the request for extradition, the Federal Court had no jurisdiction over the merits of the matter. 38. The transitional arrangements introduced as a result of the exchange of letters were enshrined in the Federal Act of 20 March 1981 on International Mutual Assistance in Criminal Matters ("the 1981 Act"), which came into force on 1 January 1983, that is after the conclusion of the proceedings at issue in the present case. The Indictments Chamber of the Federal Court rules not only on appeals against warrants for arrest with a view to extradition (section 48, second paragraph, taken in conjunction with section 47, first paragraph) but also on appeals against any decision by the Office refusing provisional release (section 50, fourth paragraph; judgment of 8 April 1983, Collection of Judgments of the Swiss Federal Court, vol. 109, part IV, p. 60). As regards extradition itself, the Office is now competent to rule at first instance (section 55, first paragraph). If, however, the person concerned claims that he "is being proceeded against because of a political offence" or if "the investigation gives serious grounds for thinking that the offence is of a political character", the decision rests with the Federal Court (section 55, second paragraph). The Office’s decision can be challenged in the Federal Court by way of an administrative-law appeal (section 55, third paragraph).