In the case of Rrapo v. Albania,
The European Court of Human Rights (Fourth Section), sitting as
a Chamber composed of:
LechGarlicki, President,
David ThórBjörgvinsson,
PäiviHirvelä,
GeorgeNicolaou,
LediBianku,
NebojšaVučinić,
Vincent A. De Gaetano, judges
andFatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 4 September 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
58555/10) against the Republic of Albania lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by an Albanian and American national, Mr Almir
Rrapo (“the applicant”), on 11 October 2010.
The applicant was represented by Messrs A. Visha
and A. Ibro, lawyers practising in Tirana. The Albanian Government (“the
Government”) were represented by their then Agent, Mrs E. Hajro and,
subsequently, by Ms L. Mandia of the State Advocate’s Office.
The applicant alleged, in particular, a breach of
Articles 2 and 3 of the Convention as a result of his extradition to the United States of America (“the United States”). He further argued that there had been a breach of
Article 34 of the Convention, having regard to the authorities’ non-compliance
with this Court’s interim measure.
On 16 December 2010the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The applicant’s arrest and detention
On 2 July 2010 the applicant applied for a
renewal of his American passport at the United States Embassy in Tirana. In the
afternoon of the same day he was arrested by the Albanian policeat the request
of the United States Embassy.
On the same day, the United States Embassy sent
diplomatic note no. 55 by which it requested the provisional arrest of the
applicant for the purpose of extradition in accordance with Article XI of the
Extradition Treaty. According to the diplomatic note, a warrant for the
applicant’s arrest had been issued on 28 May 2010 by a United States judge.
The prosecutor requested the validation of the applicant’s provisional
detention with a view to his extradition to the United States.
On 4 July 2010 the Tirana District Court (“the
District Court”) authorised the applicant’s detention for a period of forty
days, relying on a wanted notice issued by the United States
authorities,through Interpol, against the applicant. The applicant and the
prosecutor appealed against the decision.
On 22 July 2010 the lawfulness of the applicant’s
detention was upheld by the Tirana Court of Appeal (“the Court of Appeal”),
which extended the period of the applicant’s detention to sixty days, that is
from2 July until 2 September 2010. In support of its decision, the Court
of Appeal relied, inter alia, on Article XI of the Extradition Treaty
between the United States and Albania.
The applicant appealed to the Supreme Court,
which rejected the appeal on 12 November 2010.
Between August and November 2010, the applicant
challenged his continued detention three times, namely in August, September and
November 2010. Each time the domestic courts rejected the applicant’s actions
and they respectively extended his detention in accordance with Article 493 of
the Code of Criminal Procedure (“CCP”), namely until2 November 2010.
B. The extradition proceedings
On 30 August 2010 the United
States Embassy addressed diplomatic note no. 071 to the Albanian Ministry of
Foreign Affairs requesting the applicant’s extradition. According to the
diplomatic note, the applicant had been charged, along with other
co-defendants, with the following eight counts: 1) membership of an organised
racketeering enterprise engaged in murder, kidnapping, drug distribution,
arson, robbery, extortion and the interstate transportation of stolen goods; 2)
conspiracy to engage in a racketeering enterprise; 3) conspiracy to distribute
and possession with intent to distribute 100 kilograms and more of marijuana;
4)conspiracy to distribute and possession with intent to distribute controlled
substances; 5) conspiracy to commit robbery; 6) the possession, use,
carrying and brandishing of firearms, including a firearm equipped with a
silencer, during, in relation to, and in furtherance of the narcotics offence;
7) kidnapping in aid of racketeering; 8) the possession, use, carrying and
brandishing of firearms during, in relation to, and in furtherance of the
kidnapping charged in count six; and 9) the murder of E.S in aid of
racketeering.
The diplomatic note further stated that five charges carried a
maximum sentence of life imprisonment (nos. 1-2 and 6-8); two charges carried a
maximum penalty of forty years’ imprisonment (nos. 3 and 4); one charge carried
a maximum sentence of twenty years’ imprisonment (no. 5); and another charge
carried a penalty of either death or life imprisonment (no. 9). The diplomatic
note further stated that an arrest warrant had been issued against the applicant
on 19 August 2010 by the United States District Court for the Southern District
of New York.
On 31 August 2010 the prosecutor’s office
requested the District Court to authorise the applicant’s extradition to the United States.
On 30 September 2010 the
District Court granted the prosecutor’s request. The District Court rejected
the applicant’s objection that the United States authorities had not furnished
any assurances against the imposition of the death penalty on the grounds that
such assurances were not required by law.
On 13 October 2010 the State Advocate’s Office
informed the Court of Appeal of this Court’s interim measure of 12 October 2010
(see paragraph 31 below).
On 27 October 2010 the United States Embassy
sent diplomatic note no. 88 to the Albanian Ministry of Foreign Affairs, which
read, in so far as relevant, as follows (extracted from the original in
English):
“The United States understands that Rrapo has been ruled
extraditable and that decision has been appealed to an Albanian appellate court
and a complaint has been lodged before the European Court of Human Rights. The United States requests that, as these proceedings continue, should the Government of Albania require
additional information regarding possible future proceedings in the United States, such information should be requested via diplomatic note and should provide
a reasonable timeframe for response, as well as instructions on the
presentation of such information. The United States will respond to any such
request within a reasonable time.
The Embassy also requests that, with regard to the Almir Rrapo
extradition proceedings, the Government of Albania consider the potential
flight risk of the defendant, and request that Rrapo continue to be detained
pending the resolution of all proceedings relating to the request for
extradition of Rrapo, including proceedings at the European Court of Human
Rights and national court proceedings.”
On 1 November 2010 the Tirana
Court of Appeal, following the applicant’s appeal, found in favour of the
applicant’s extradition. The court ruled that there existed no legal obligation
to seek assurances from the US authorities against the imposition of the death
penalty.
On 1 November 2010 the Minister of Justice
ordered that the applicant’s extradition should be effected by 16 November
2010.
On 3 November 2010 the Minister of Justice sent
a note verbale to the United States Embassy asking whether the applicant
would be subjected to capital punishment for the criminal offences with which
he had been charged.
On 8 November 2010 the United States Embassy
sent diplomatic note no. 91 to the Albanian Ministry of Foreign Affairs, which,
in so far as relevant, read as follows (extracted from the original in
English):
“The United States Department of
Justice has authorised and directed the United States Attorney for the Southern
District of New York not to seek the death penalty against Almir Rrapo. As a
result, the Government of the United States hereby assures the Government of
Albania that should Mr Rrapo be extradited to stand trial on the charges for which
his extradition has been granted, the death penalty will not be sought or
imposed against Almir Rrapo upon his extradition to the United States.”
On 9 November 2010 the applicant lodged an
appeal with the Supreme Court. He argued,inter alia, that the United Statesauthorities had given no assurances about the non-imposition of the death
penalty in breach of Article 21 of the Constitution.
On 9 November 2010 the applicant lodged a
further request with the Supreme Court seeking the suspension of his
extradition, bringing to its attention this Court’s indication under Rule 39 of
the Rules of Court.
On 10 November 2010 the State Advocate’s Office
informed the Supreme Court of this Court’s interim measure of 2 November 2010
(see paragraph 32 below).
On 15 November 2010 the Minister
of Justice extended to 1 December 2010 the time-limit within which the
applicant’s extradition to the United States could take place.
On 24 November 2010 the
applicant was extradited to the United States.
On 26 November 2010 the Supreme
Court quashed both lower courts’ decisions and remitted the case to the
District Court for rehearing. The Supreme Court found that the lower courts
should not have granted the applicant’s extradition on two principal grounds.
In the first place, the lower courts had not obtained any assurances from the United States authorities that the capital punishment would not be imposed on the
applicant. This was against a number of Albania’s constitutional and other
statutes’ provisions. Secondly, the lower courts had not heard any evidence of
the applicant’s alleged guilt as required by the Extradition Treaty. The
existence of an affidavit by aUnited Statespolice officer could not be
considered evidencewithin the meaning of domestic criminal procedure
provisions.
In the rehearing proceedings, in response to the
District Court’s request of 16 February 2011 about the existence of assurances
against the imposition of the death penalty on the applicant, on 17 February
2011 the Minister of Justice requested the United States Embassy to provide
assurances that the applicant would not be subjected to capital punishment in
respect of the charges for which he was extradited.
On 24 February 2011 the United States Embassy
sent diplomatic note no. 22 to the Albanian Ministry of Foreign Affairs, which,
in so far as relevant, read as follows (extracted from the original in
English):
“... The United States further refers Albania to diplomatic
note 91, dated November 8, 2010 in which the United States provided assurances
that the death penalty will not be sought or imposed against Mr. Rrapo on the
charges for which his extradition was granted. Such assurances are transmitted
by the United States Government in the form of a diplomatic note, which is a
formal communication between our governments. As reflected in diplomatic note
no. 91, the assurances are provided based upon a decision by the United States
Department of Justice not to seek or impose the death penalty against Mr.
Rrapo, and these assurances are binding upon the United States Department of
Justice.”
In response to another District Court’s request
to have explanations on the position of the United States Government concerning
the diplomatic notes and assurances already provided, on 18 May 2011 the United
States Embassy sent diplomatic note no. 44 to the Albanian Ministry of Foreign
Affairs, which, in so far as relevant, read as follows (extracted from the
original in English):
“The United States values its relationship with the Republic of Albania and close cooperation in combating terrorism and other crime. It is in this
spirit that the United States provides the following additional response with
respect to the matters previously raised with respect to the extradition of Mr
Rrapo [...]. With respect to the request for additional evidence of the guilt
of Mr Rrapo, the United States notes that Mr Rrapo has already pled guilty to
the charges.
...
As regards the nature and status of diplomatic notes, this
diplomatic note (no. 44) explained that:
[...] The United States notes that the diplomatic note from the
United States Embassy in Tirana is a formal communication by the United States
Government to the Government of theRepublic of Albania that sets forth the
official and authoritative position of the entire United States Government
regarding death penalty assurances in this case. Communication of such
assurances via diplomatic note is the standard practice of the United States
Government, and, indeed, governments throughout the world. Such assurances bind
the entire government of the United States, including the Department of Justice
and prosecuting authorities. The Embassy speaks authoritatively for the United States on this and any other matter when it provides an official communication on behalf of
the United States and is therefore the “competent organ” of the RequestingState to convey such assurances. These assurances as provided in diplomatic note 91,
dated November 8, 2010, are entirely dispositive and authoritative.”
The Government have submitted that on 28
September 2011 the District Court ruled in favour of the applicant’s
extradition, although no copy of that decision has been provided.
The applicant’s appealappears to bepending
before the Court of Appeal.
C. Proceedings before the Court
On 12 October 2010, while the
extradition proceedings were pending before the Court of Appeal, the President
of the Fourth Section of the Court to which the case had been allocated
decided, in the interests of the parties and the proper conduct of the proceedings
before the Court, to indicate to the Government of Albania, under Rule 39 of
the Rules of Court, that the applicant should not be extradited to the United
States. This measure was to remain in force “until the lapse of ten days
following notification of the Court of Appeal’s decision to the Court.” The
parties were informed of the decision on the same day by way of a facsimile and
mail.
On 2 November
2010, following the Court of Appeal’s decision in favour of the applicant’s
extraditionas well as the applicant’s appeal against that decision to the
Supreme Court, the President of the Fourth Section of the Court decided to
prolong the interim measure initially indicated to the respondent Government
under Rule 39 of the Rules of Court, “until the lapse of fifteen days following
notification of the Supreme Court’s decision to the Court.” The parties were
informed of this decision on the same day by way of a facsimile and by mail.
On 4 November 2010 the Registrar of the Fourth
Section wrote to the State Advocate’s Office, in their position as the
Government’s Agent before the Court, in inter alia the following terms.
“Under the terms of the interim measure, as decided and
prolonged by the President of the Fourth Section, the applicant should not be
extradited to the United States of America until fifteen days have elapsed from
the date of the notification of the Supreme Court’s decision to this Court.
This period is intended to allow the Court time to reflect further on the
matter in the light of the domestic court’s findings.
In this connection, I can only repeat what I said at our
meeting, namely that the failure of a Contracting State to comply with a Rule
39 measure may entail a breach of Article 34 of the Convention, which is
binding upon your Government as a signatory thereto (see Grori v. Albania,
no. 25336/04, §§ 172-195, 7 July 2009). You may wish to stress this point in
your discussions with the competent authorities.”
On 10 November 2010 the Minister of Justice
informed the General Prosecutor’s Office and the National Interpol Office that
the applicant should not be extradited to the United States in compliance with
the Court’s Rule 39 interim measure.
On 15 November 2010 the President of the Fourth
Section of the Court decided that, even having regard to the diplomatic
assurances given by the United States Embassy against the imposition of the
death penalty, the Rule 39 indication would remain in force and continue to
apply. The parties were informed of the decision on 18 November 2010 by way of
a facsimile and mail.
On 24 November 2010 the applicant’s lawyer
informed the Court that the applicant had been extradited to the United Statesthat morning, without any prior notice either to the applicant or his
representative. By letter of the same day, this Court invited the Government to
confirm this information.
On 25 November 2010 the Government
confirmed,over the telephone, to the Registrar of the Fourth Section of the
Court that the applicant had been extradited from Albania on 24 November
2010.Confirmation was received in writing on 26 November 2011.
On 25 November 2010 the Registrar of the Court
sent the following letter to the Government:
“The President of the Court ... has instructed me to express on
his behalf his profound regret at the decision taken by your authorities to
extradite Mr Almir Rrapo to the United States of America in flagrant disrespect
of the Court’s interim measure adopted under Rule 39 of the Rules of Court.
The President has noted in this connection that on 3 November
2010 your authorities were reminded in clear terms by the Registrar of the
Fourth Section that the Rule 39 measure, first applied on 12 October 2010,
continued to remain in force. Your Government’s attention was drawn to the fact
that the failure of a ContractingState to comply with a Rule 39 measure may
entail a breach of Article 34 of the Convention. Furthermore, in the Court’s
most recent letter of 18 November 2010, your Government were informed that the
President of the Fourth Section had decided to continue to apply the interim
measure. Nevertheless, your Government extradited the applicant to the United States of America on 24 November 2010.
The President has instructed me to request your Government to
inform the Court of the circumstances in which the extradition was effected and
of the reasons why the Rule 39 measure was not complied with. Your Government
should submit copies of any relevant documentation.
The President is deeply disturbed at this development and is
particularly concerned about its implications for the authority of the Court
and the unfortunate message which it sends both to other Contracting States
faced with a Rule 39 measure and to applicants and potential applicants liable
to extradition or expulsion to countries where they may be exposed to the risk
of violation of their rights under Articles 2 and 3 of the Convention. As an
indication of the seriousness with which he views this turn of events, the
President has asked that the Chairman of the Committee of Ministers, the
President of the Parliamentary Assembly, the Commissioner for Human Rights and
the Secretary General of the Council of Europe be informed immediately”.
In a reply of 30 November 2010 the Government
stated that the applicant’s extradition was prompted by the assurances given by
the United States Embassy that the death penalty would neither be sought nor
imposed. The letter further indicated that, as the applicant’s detention would have
expired on 1 December 2010 and, upon release, his risk of absconding was
imminent, the Albanian authorities proceeded with his extradition on
24 November 2010.
On 10 January 2011 the Albanian Permanent
Representation to the Council of Europe forwarded to the Court a letter of the
Albanian Minister of Justice dated 27 December 2010. In his letter, the
Minister assured the Court that it was not the Government’s intention to breach
a Rule 39 order. The complex and exceptional circumstances of the applicant’s
case had prompted the Government to take a decision, which, in their view,
offered a fair solution to the case. The Minister further stated that
(extracted from the original in English):
“... I would like to clarify that if the European Court order
[were to] be fully implemented, then ...Almir Rrapo, [whose appeal was] pending
...before the Supreme Court, would be released starting from 1 December 2010.
This [is so] because, according to the Albanian legislation, a court decision
takes judicial executive effects upon [the] termination of trial [before] the Appeal Court and not after the termination of trial [before] the High Court. On the date of
trial from the latter, ... Almir Rrapo would be necessarily released pursuant
to Article 499 § 1 of the CCP...
Under these conditions, a person of high criminal risk not only
for ...Albanian citizens but also for ...European and American citizens would
[have] be[en] released.
Consequently, the Minister of Justice was under the objective
conditions that made impossible to [fully] comply ...with the European Court
order. Under these circumstances he decided to reschedule the date of
extradition, until the [expiry of the] time-limit when ...Almir Rrapo could be
held under the security measure “arrest in prison”, which was [on] ...1
December 2010. The full implementation of the European Court’s [order] and,
consequently, the extension of the extradition deadline after 1 December
2010, as ordered by the Court, would [have brought] the Albanian state under
the situation of [the expiry]of the [30-day] time-limit as specified in the
above legal provision. Therefore, the Albanian state would have [had] the legal
obligation to release ...Almir Rrapo. Further, I would like to clarify that
under Article 500 of the CCP, the Minister of Justice could not suspend the
execution of the extradition decision of Almir Rrapo as a result of the European Court order, because that provision does not contain such a clause, and, therefore,
it does not provide the regulation of relevant consequences.
Moreover, we would like to make clear that the Albanian
legislation does not stipulate what happens to the security measure “arrest in
prison”, if the Supreme Court decides to [remit] the case for retrial, which it
happened. Consequently, as long as there is no legal provision which expressly
stipulates the possibility of keeping in force this measure in such a case, the
legal interpretation would have favoured the position of ... Almir Rrapo. Thus,
the latter should [have] be[en] released in this case. The scope of the
Albanian party was to avoid the release of ...Almir Rrapo due to his high
social risk, [the] serious charges brought against him and the evident
opportunity to get away to an unknown direction. In this context, we add that
on 27 October 2010the American party had requested the Albanian party to
undertake every legal measure to ensure that the citizen Almir Rrapo would not
get away. In case of his leaving, the provisions of the Extradition Treaty
would be violated. Hence, the Albanian state would not comply with the
bilateral international obligations due to failure of good administration of
justice.”
D. Events subsequent to the communication of the case
to the Government
On 19 July
2011the applicant’s lawyers before this Court, while alleging that the
information had been extracted under coercion, submitted a record of the
hearing of 11 April 2011 before aUnited Statesjudge. The applicant, having
received legal advice from hislawyer in the United States,willingly entered
into a plea bargain with the United State Attorney’s Office, according to which
he pleaded guilty of his own volition and waived his right to have the case
presented to a Grand Jury so that there would be no trial and the remaining
steps consisted of the pre-sentence report and sentencing by the trial judge.
In the record, he also accepted that he would provide assistance to the United
States Government as required.
The judge explained to
the applicant that the total maximum sentence on all charges was life
imprisonment and that the total mandatory minimum sentence on all charges was
life imprisonment. He further informed the applicant that, since parole had
been abolished, and, if sentenced, he would be required to serve the entire
term. The record further mentioned the possibility of a supervised release in
favour of the applicant. The judge also reminded him that, under certain
circumstances, he had a right to appeal the sentence imposed.
The judge accepted the applicant’s plea of
guilty and directed that a pre-sentence report be prepared in accordance with
the federal sentencing guidelines, taking into account a number of factors
including the actual conduct in which he had been engaged, any victims of the
offence, the role that he had played in the offence, whether he had accepted
responsibility for his acts, whether he had any criminal history and whether he
had tried to obstruct justice. The trial judge retained discretion as to the
actual penalty to be imposed.
On 26 July 2012 the applicant
was convicted by the United States court as charged (see paragraph 11 above).
He was sentenced to 80 months’ imprisonment. Upon release he would be on
supervised release for a term of three years in accordance with the conditions
and terms of the supervised release.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitution of Albania
The Albanian Constitution, in its relevant
parts, provides as follows.
Article 4
“1. The law constitutes the basis and the limits of
the activity of the State.
2. The Constitution is the supreme law in the Republic of Albania.
3. The provisions of the Constitution are directly
applicable, save as otherwise provided by the Constitution.”
Article 5
“The Republic of Albania applies international law that is binding
upon it.”
Article 17
“1. The restriction of the rights and freedoms
provided for in this Constitution may be laid down only by law in the public
interest or for the protection of the rights of others. A restriction shall be
proportionate to the situation that has dictated it.
2. These restrictions may not infringe the essence
of the rights and freedoms and in no case should exceed the restrictions
provided for in the European Convention on Human Rights.”
Article 21
“The life of a person is protected by law.”
Article 116
“1. The normative acts that apply in the Republic of Albania are:
a) the Constitution;
b) ratified international agreements;
c) laws;
ç) normative acts of the Council of Ministers.
(...)
Article 122
1. Any ratified international agreement is a
constituent part of the domestic juridical system following its publication in the
Official Journal of the Republic of Albania. It is directly applicable, except
for cases when it is not self-executing and its implementation requires the
adoption of a law. (...)”
Constitutional Court’s case-law
By a landmark decision no. 65 of 10 December
1999 the Constitutional Court, relying heavily on the Convention, decided to
abolish the death penalty in times of peace in all the provisions of the
Criminal Code and in two provisions of the Military Criminal Code.
B. Code of Criminal Procedure (“CCP”)
. Articles 232-239 provide for the
imposition of the following coercive security measures: a ban on leaving the
territory of the country (Article 233); an obligation to report to the judicial
police (Article 234); a ban and obligation on staying at a designated
place (Article 235); bail (Article 236); house arrest (Article 237); detention
on remand (Article 238); and detention in a psychiatric institution (Article
239).
Article 266 § 1 provides that,
in the event of the expiry of the period of detention and,if there still exist
the grounds for which detention was ordered, the court may impose another
security measure if warranted by the circumstances of the case.
Articles 488-503 regulate the extradition
procedure to a foreign country. According to Article 489 the extradition
request should be addressed to the Ministry of Justice and be accompanied by
supporting documents. The extradition request should include,inter alia,
the applicable foreign legal provisions, stating whether the foreign law
provides for the imposition of the death penalty concerning the criminal
offence for which extradition is sought.
The Ministry of Justice forwards the request to
the district prosecutor who, within three months from the submission of the
extradition request by the requesting State, lodges an application with the
District Court on the basis of Article 492.
Article 493 provides for the imposition of a
coercive security order against the person to be extradited to avoid absconding
from justice. A security order is imposed in accordance with the general
provisions on security orders and shall be revoked within three months from its
execution if the proceedings before the court are still pending. The period may
be extended by one month at the request of the prosecutor (Article 493 §§ 2 and
4).
In accordance with Article 494, the District
Court may impose a provisional security order at the request of the prosecutor
in the absence of an extradition request. Such a security order may be imposed
in the event that: a) the requesting State has issued an order on the
deprivation of liberty or a sentence of imprisonment against the person
concerned, provided that the requesting State intends to submit an extradition
request thereafter; b) the requesting State has submitted detailed
information about the criminal offence and provided sufficient elements for the
identification of the person; c) there is a risk of absconding. A restraint
order shall be revoked if, within eighteen days and, in any event, within a
maximum period of forty days, no extradition request is deposited with the
Ministry of Justice.
An arrest or detention should be validated by
the District Court within forty-eight hours (Article 495 §§ 2 and 3).
The Ministry of Justice proceeds with the
extradition within thirty days from the date on which the court decision
becomes final. On the expiry of this time-limit, the person is released in the
event that the Ministry does not proceed with the extradition (Article 499 §
1).
C. The jurisdiction in criminal matters Act (Law no.
10193 of3 December 2009 on jurisdiction in criminal matters with foreign
authorities)
Apart from the conditions provided for in the
Criminal Code and the Code of Criminal Procedure, section 32 states that the
extradition of a person to a foreign country is allowed, inter alia, when
(d) the requesting State gives assurances that it would not impose the death
penalty or, in the event of imposition of such sentence, the requesting State
shall not execute it.
D. Treaty of Extradition between the United States and the Kingdom of Albania (“The Extradition Treaty”)
The bilateral Extradition Treaty between the United States and the then Kingdom of Albania was signed on 1 March 1933. It entered into force on
14 November 1935 and it is currently in force. Its relevant provisions read as
follows.
Article II
“Persons shall be delivered up according to the provisions of
the present Treaty, who shall have been charged with or convicted of any of the
following crimes of offences:
1. murder (including crimes designated by the terms parricide,
poisoning, and infanticide); manslaughter when voluntary;
(...)”
Article VIII
“Under the stipulations of this Treaty, neither of the High
Contracting Parties shall be bound to deliver up its own citizens, except in
cases where such citizenship has been obtained after the perpetration of the
crime for which extradition is sought. The State appealed to shall decide
whether the person claimed is its own citizen.”
Article XI
“ (...)
The arrest of the fugitive shall be brought about in accordance
with the laws of the respective countries (...).
The person provisionally arrested, shall be released, unless
within two months from the date of arrest in Albania, or from the date of
commitment in the United States, the formal requisition for surrender with the
documentary proofs hereinafter prescribed be made as aforesaid by the
diplomatic agent of the demanding Government, or, in his absence, by a consular
officer thereof. (...)
III. RELEVANT INTERNATIONAL LAW AND PRACTICE
The law and practice of theState of New York
The Government submitted that section 400.27 of
the New York’s Criminal Procedure Law (“CPL”) stipulated the procedure for
determining sentence upon conviction for the offence of murder in the first degree.
Paragraph 10 of the above section, referred to as the jury deadlock
instruction, read as follows:
“At the conclusion of all the evidence,
the people and the defendant may present argument in summation for or against
the sentence sought by the people. The people may deliver the first summation
and the defendant may then deliver the last summation. Thereafter, the court
shall deliver a charge to the jury on any matters appropriate in the
circumstances. In its charge, the court must instruct the jury that with
respect to each count of murder in the first degree the jury should consider
whether or not a sentence of death should be imposed and whether or not a
sentence of life imprisonment without parole should be imposed, and that the
jury must be unanimous with respect to either sentence. The court must also
instruct the jury that in the event the jury fails to reach unanimous agreement
with respect to the sentence, the court will sentence the defendant to a term
of imprisonment with a minimum term of between twenty and twenty-five years and
a maximum term of life. Following the court’s charge, the jury shall retire to
consider the sentence to be imposed. (...)”
In People v. LaValle[3 NY3d88 (2004)] the
New York Court of Appeals set aside the death penalty sentencing statute
(section 400.27 (10) above)by declaringthe jury deadlock instruction
unconstitutional with the State Constitution. The court struck down the
deadlock instruction because “it creates the substantial risk of coercing
jurors into sentencing a defendant to death in violation of ... [the] Due
Process Clause”.
In People v. Taylor [9 NYrd 129 (2007)]
the New York Court of Appeals reconfirmed that the death penalty sentencing
statute was unconstitutional as decided in LaValle. It stated, inter
alia, that:
“Like LaValle, our holding here
is grounded in the irrevocable nature of capital punishment as well as ‘the
concomitant need for greater certainty in the outcome of capital jury
sentences’ (reference omitted). We do not agree that the Court erred in LaValle,
or that our holdings were dicta, and thus we are ultimately left exactly where
we were three years ago: the death penalty sentencing statute is
unconstitutional on its face and it is not within our power to save the
statute. LaValle is thus entitled to full precedential value. The
Legislature, mindful of our State’s due process protections, may re-enact a
sentencing statute that is free of coercion and cognizant of a jury’s need to
know the consequences of its choice”.
To date, it would appear that the State
legislature has not re-enacted any statute on the imposition of the death
penalty. It would further appear that the capital penalty has not been imposed
on any defendant.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLES2AND 3 OF THE CONVENTIONAND
ARTICLE 1 OF PROTOCOL NO. 13 ARISING FROM THE RISKOF THE IMPOSITION OF THE
DEATH PENALTY
The applicant complained that his extradition to
the United States, and the risk of being subjected to the death penalty, gave
rise to a breach of Articles 2and 3 of the Convention and Article 1 of Protocol
No. 13, which read as follows:
“Article 2: Right to life
“1. Everyone’s right to life shall be protected by
law. No one shall be deprived of his life intentionally save in the execution
of a sentence of a court following his conviction of a crime for which this
penalty is provided by law.
2. Deprivation of life shall not be regarded as
inflicted in contravention of this article when it results from the use of
force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent
the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of
quelling a riot or insurrection.
Article 3: Prohibition of torture
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
Article 1 of Protocol 13: Abolition of the death penalty
“The death penalty shall be abolished. No one shall be
condemned to such penalty or executed.”
A. Admissibility
The Government submitted that the applicant could
not claim to be a victim of a violation of theConvention having regard to the
Supreme Court’s decision of 26 November 2010 which had quashed the lower courts’decision
and had remitted the case for reconsideration to the District Court.
The Court reiterates that a decision or measure
favourable to an applicant is not, in principle, sufficient to deprive the
individual of his or her status as “victim”, unless the national authorities
have acknowledged, either expressly or in substance, and then afforded redress
for, the breach of the Convention (see, mutatis mutandis, Mishgjoni
v. Albania, no. 18381/05, § 42,
7 December 2010).
In the present case, the Court notes that the
Supreme Court’s decision was adopted subsequent to the applicant’s extradition.
While it acknowledged breaches of a number of legal provisions by the lower
courts and remitted the case for reconsideration, it was not capable of
reversing the applicant’s extradition which had already taken place. In such
circumstances, the applicant can continue to claim to be a “victim” of a
violation of his Convention rights as regards that extradition. The Court
therefore rejects this objection.
The Court considers that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further finds that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
The applicantmaintained that, on the basis of
the documents submitted by the United States authorities, there existed the
risk thata capital sentence would be imposed on him. He argued that this
consideration was entirely overlooked by the District Court and the Court of
Appeal which authorised his extradition. This was further reinforced by the
Supreme Court’s decision of 26 November 2010. He also questioned the quality of
the assurances given by the United States authorities by way of diplomatic
notes: the only responsible authority for giving such assurances should have
been the Attorney General. The applicant invited the Court to disregard the New
York Court of Appeals’ judgments since the crimes with which he was charged
were federal crimes and that case-law did not therefore apply. The applicant’s
lawyer asked the Court to disregard the hearing record of 19 July 2011 as
having been extracted under violence and ill-treatment (see paragraph 41
above).
The Government submitted that the domestic
courts had reasonably considered and rejected the applicant’s arguments about
the death penalty. The United States authorities, by way of diplomatic notes
no. 91 of 8 November 2010 and no. 22 of 24 February 2011, had given
assurances to the Albanian authorities that the death penalty would neither be
sought nor imposed on the applicant. The Government further relied on the New
York Court of Appeals’ case-law which declared the death penalty to be
unconstitutional. Moreover, according to the Government, the death penalty has
not been appliedin New York since 1977.
The Government also relied on the waiver of
indictment that the applicant had signed of his own volition, with the
assistance of his lawyer (see paragraph 41 above). According to the Government,
the possibility of being subjected to the death penalty was not mentioned at
that hearing and there existed no risk of the death penalty being imposed in
this case.
2. The Court’s assessment
(a) General principles
The Court refers
to the general principles as laid down in its judgment in the case of Al-Saadoon
and Mufdhi v. the United Kingdom, no. 61498/08, §§ 115-127, ECHR 2010
(extracts), particularly:
“118. (...) in respect of those States which are
bound by it, the right under Article 1 of Protocol No. 13 not to be subjected
to the death penalty, which admits of no derogation and applies in all
circumstances, ranks along with the rights in Articles 2 and 3 as a fundamental
right, enshrining one of the basic values of the democratic societies making up
the Council of Europe. As such, its provisions must be strictly construed
(references omitted).
...
120. (...) These figures, together with consistent
State practice in observing the moratorium on capital punishment, are strongly
indicative that Article 2 has been amended so as to prohibit the death penalty
in all circumstances. Against this background, the Court does not consider that
the wording of the second sentence of Article 2 § 1 continues to act as a bar
to its interpreting the words “inhuman or degrading treatment or punishment” in
Article 3 as including the death penalty (reference omitted).
...
122. Article 3, which prohibits in absolute terms
torture and inhuman or degrading treatment or punishment, enshrines one of the
fundamental values of democratic societies. It makes no provision for
exceptions and no derogation from it is permissible under Article 15, even in
the event of a public emergency threatening the life of the nation. As the
prohibition of torture and of inhuman or degrading treatment or punishment is
absolute, irrespective of the victim’s conduct, the nature of any offence
allegedly committed by the applicant is therefore irrelevant for the purposes
of Article 3 (reference omitted).
123. The Court further reiterates that expulsion by
a ContractingState may give rise to an issue under Article 3, and hence engage
the responsibility of that State under the Convention, where substantial
grounds have been shown for believing that the person concerned, if deported,
faces a real risk of being subjected to treatment contrary to Article 3. In
such a case Article 3 implies an obligation not to deport the person in
question to that country (reference omitted). Similarly, Article 2 of the
Convention and Article 1 of Protocol No. 13 prohibit the extradition or
deportation of an individual to another State where substantial grounds have
been shown for believing that he or she would face a real risk of being
subjected to the death penalty there (references omitted).
124. In this type of case the Court is therefore
called upon to assess the situation in the receiving country in the light of
the requirements of the above Articles. Nonetheless, there is no question of
adjudicating on or establishing the responsibility of the receiving country,
whether under general international law, under the Convention or otherwise. In
so far as any liability under the Convention is or may be incurred, it is
liability incurred by the Contracting State, by reason of its having taken action
which has as a direct consequence the exposure of an individual to the risk of
proscribed ill-treatment (reference omitted).
...
127. The Court must in addition have regard to the
special character of the Convention as a treaty for the collective enforcement
of human rights and fundamental freedoms. Its approach must be guided by the
fact that the object and purpose of the Convention as an instrument for the
protection of individual human beings requires that its provisions be
interpreted and applied so as to make its safeguards practical and effective
(references omitted).
128. It has been accepted that a Contracting Party
is responsible under Article 1 of the Convention for all acts and omissions of
its organs regardless of whether the act or omission in question was a
consequence of domestic law or of the necessity to comply with international
legal obligations. Article 1 makes no distinction as to the type of rule or
measure concerned and does not exclude any part of a Contracting Party’s
“jurisdiction” from scrutiny under the Convention (reference omitted). The
State is considered to retain Convention liability in respect of treaty
commitments subsequent to the entry into force of the Convention (reference
omitted). For example, in Soering (reference omitted) ... the obligation
under Article 3 of the Convention not to surrender a fugitive to another State
where there were substantial grounds for believing that he would be in danger
of being subjected to torture or inhuman or degrading treatment or punishment
was held to override the United Kingdom’s obligations under the Extradition
Treaty it had concluded with the United States in 1972”.
(b) Application of the above principles to the
present case
In the instant case, the applicant was arrested
with a view to his extradition to the United States. On 30 August 2010 the United States authorities officially requested his extradition on, inter alia, a
capital charge. On 30 September 2010 and 1 November 2010 the District Court and
the Court of Appeal, respectively, ruled in favour of the applicant’s
extradition.It is a matter of profound regret that the lower courts were
willing to allow the applicant’s extradition without examining the reality of
the risk alleged by the applicant. It is striking that the lower courts never
sought assurances from the requesting Government that the death penalty would
not be imposed in the event of the applicant’s conviction (see paragraphs 13
and 16above). This matter only became a live issue in the proceedings before
the Supreme Court, by which stage, regrettably, the applicant had already been
extradited (see paragraphs 24 and 25above). In this connection, the Court
recalls that Protocol No. 13, which came into force in respect of Albania on 1
June 2007, taken together with the respondent State’s obligations under
Articles1, 2 and 3 of the Convention, dictated that, for whatever reason,it
should not detain individuals with a view to extraditing them to stand trial on
capital charges or in any other way subjecting individuals within its
jurisdiction to a real risk of being sentenced to the death penalty and
executed (see, mutatis mutandis,Al-Saadoon and Mufdhi, cited
above, § 137), unless sufficientand binding assurances were sought and
obtainedfrom the responsible authorities of the requesting State.
However, prior to the applicant’s extradition on
24 November 2010, and, in response to the Albanian Minister of Justice’srequest
for assurances against the imposition of the death penalty, on 8 November 2001
the United States Embassy, by way of a diplomatic note, stated that “the death
penalty will not be sought or imposed against [the applicant] upon his
extradition to the United States.”
The Court recognises that, in extradition
matters, diplomatic notes are a standard means for the requesting State to
provide any assurances which the requested State considers necessary for its
consent to extradition. It also recognises that, in international relations,
diplomatic notes carry a presumption of good faith. The Court considers that,
in extradition cases, it is appropriate that that presumption be applied to a
requesting State which has a long history of respect for democracy, human
rights and the rule of law, and which has longstanding extradition arrangements
with Contracting States (see Babar Ahmad and Others v. the United Kingdom
(dec.) nos. 24027/07, 11949/08 and 36742/08, § 105, 6 July 2010).
Consequently, the Court will assess the quality of assurances given and whether
in light of the requesting State’s practices they can be relied upon.
The Court finds nothing in the materials before
it that could cast doubts as to the credibility of the assurances that capital
punishment would not be sought or imposed in respect of the applicant by the
requesting State. The assurances given by the United States Government were
specific, clear and unequivocal. As was later confirmed in another diplomatic
note of the United States Embassy on 24 February 2011, “these assurances are
binding upon the United States Department of Justice.” The Courtmust further
attach importance to the fact that, in the context of an extradition request,
there have been no reported breaches of an assurance given by the United States
Government to a ContractingState. The United States long-term interest in
honouring its extradition commitments alone would be sufficient to give rise to
a presumption of good faith against any risk of a breach of those assurances
(see Babar Ahmad and Others (dec.), cited above, §§ 107-8). Lastly, as
is evidenced by the record of the hearing of 19 July 2011, in which the
applicant pleaded guilty to the charges, no mention was made by the United Statesjudge of any risk for the applicant of facing the death penalty.
In the light of the above circumstances, the
Court finds that the applicant’s extradition to the United States did not give
rise to a breach of Articles 2 and 3 of the Convention and Article 1 of
Protocol No. 13 on account of a risk of the death penalty being imposed.
II. ALLEGED VIOLATION OF ARTICLE 34 OF THE
CONVENTION
The applicant complained that his extradition to
the US, in breach of the Court’s indication under Rule 39 of the Rules of Court,
gave rise to a violation of Article 34 of the Convention, which provides:
“The Court may receive applications from any person,
non-governmental organisation or group of individuals claiming to be the victim
of a violation by one of the High Contracting Parties of the rights set forth
in the Convention or the Protocols thereto. The High Contracting Parties
undertake not to hinder in any way the effective exercise of this right.”
A. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
The applicant maintained that there had been a
breach of Article 34 of the Convention as a result of the non-complianceby the
Albanian authorities with the Court’s interim measure. He argued that
compliance with the wishes of a foreign embassy is against the spirit of the
Convention’s supremacy in the domestic legal order.
As to any objective obstacles for compliance
with the Rule 39 interim measure, the applicant argued that, in accordance with
Article 266 § 1 of the CCP, measures other than detention were
available to the authorities. Furthermore, the Government did not attempt to
inform the Court of the existence of any objective obstacles prior to the
applicant’s extradition.
The Governmentsubmitted that it was not the
authorities’ intention to disregard the obligations arising from the Court’s
Rule 39 interim measure. Having regard to the highly complex nature of the
applicant’s case, the societal risk he posed and the obligations stemming from
other international commitments, the authorities attempted to find the best
solution. The Government requested the Court, in view of the exceptional
circumstances of the case, to be flexible in the assessment of the facts which
prompted the applicant’s extradition.
The Government argued that the applicant’s
extradition was ordered by the Court of Appeal’s decision of 1 November 2010,
which was final and had acquired the force of res judicata. In their
view, Article 499 § 1 of the CCP provided for the applicant’s release if the
Ministry of Justice did not order the applicant’s extradition within a month
from the date of the Court of Appeal’s decision, despite the fact that the
applicant’s appeal was pending before the Supreme Court. The Government further
clarified that domestic law did not envisage the continuation of detention in
the event of a remittal of a case by the Supreme Court. Consequently, in so far
as the law did not stipulate the continuation of a defendant’s arrest, the
legal interpretation was to be in favour of the defendant, which would result
in his subsequent release. In the present case, had the authorities released
the applicant, the Government would have been in breach of the Extradition
Treaty provisions. If the authorities had not extradited the applicant by
1 December 2010, they would have had to release him in accordance with
Article 499 § 1 of the CCP. Consequently, the Minister of Justice was faced
with an objective impedimentto compliance with the Court’s interim measure.
2. The Court’s assessment
(a) General principles
Interim measures under Rule 39 of the Rules of
Court are indicated only in limited spheres. In practice, the Court will make
such an indication only if there is an imminent risk of irreparable damage.
While there is no specific provision in the Convention concerning the domains
in which Rule 39 will apply, requests for its application usually concern the
right to life (Article 2), the right not to be subjected to torture or inhuman
treatment (Article 3) and, exceptionally, the right to respect for private and
family life (Article 8) or other rights guaranteed by the Convention (see Mamatkulov
and Askarov v. Turkey[GC], nos. 46827/99 and 46951/99, § 104, ECHR 2005‑I).
Under the Convention system, interim measures play a vital role in avoiding
irreversible situations that would prevent the Court from properly examining
the application and, where appropriate, securing to the applicant the practical
and effective benefit of the Convention rights asserted. Accordingly, in these
conditions a failure by a respondent State to comply with interim measures will
undermine the effectiveness of the right of individual application guaranteed
by Article 34 and the State’s formal undertaking in Article 1 to protect the
rights and freedoms set forth in the Convention (Mamatkulov, cited
above, § 125).
Article 34 will be breached if the authorities of
a Contracting State fail to take all steps which could reasonably have been
taken in order to comply with the interim measure indicated by the Court (Paladi
v. Moldova[GC], no. 39806/05, § 88, 10
March 2009). In examining a complaint under Article 34 concerning the alleged
failure of a ContractingState to comply with an interim measure, the Court will
not re-examine whether its decision to apply interim measures was correct. It
is for the respondent Government to demonstrate to the Court that the interim
measure was complied with or, in an exceptional case, that there was an
objective impediment which prevented compliance and that the Government took
all reasonable steps to remove the impediment and to keep the Court informed
about the situation (Paladi, cited above, § 92;Grori v. Albania, no. 25336/04, § 184, 7 July 2009;
andAl-Saadoon and Mufdhi, cited above, § 161).
(b) Application of the above principles to the
present case
The Court notes that the respondent Government
were initially informed, by way of a facsimile and mail, of the interim measure
under Rule 39 on 12 October 2010, according to which the applicant was not to be
extradited “until the lapse of ten days following notification of the Court of
Appeal’s decision to the Court”. The prolongation of the application of the
interim measure, “until the lapse of fifteen days following notification of the
Supreme Court’s decision to the Court”, was communicated, by way of a facsimile
and mail, to the respondent Government on 2 November 2010. Despite the
diplomatic assurances given by the United States Government, on 18 November
2010 the Government were informed that the interim measure continued to apply.
However, the applicant was extradited on 24 November 2010. The interim
measure was evidently not complied with.
The Court will therefore determine whether there
were objective impediments which prevented the Government’s compliance and
whether they took all reasonable steps to remove the impediment and to keep the
Court informed about the situation (see Grori, cited above, § 188).
In the first
place, the Court does not accept the Government’s argument that, in extraditing
the applicant, they complied with the finalCourt of Appeal’s judgment of
1 November 2010. For the purposes of the Convention, a finaljudgment which
has become res judicata is a judgment which may not be subject to
control by a higher instance court and, eventually, quashed (see, mutatis
mutandis, Gjyli v. Albania, no. 32907/07, §§ 33-34, 29 September 2009), whereas the
present Court of Appeal’s judgment was lawfully quashed by the Supreme Court’s
judgment of 26 November 2010 and those proceedings are still pending.
The Court
cannot accept the Government’s argument that the failure to extradite the
applicant would have interfered with Albania’s international obligations under
the 1935 Extradition Treaty. In this respect the Court refers to its case-law
as summarised in the Al-Saadoon and Mufdhi judgment to the effect
that the Convention is intended to safeguard rights that are “practical and
effective” and that a respondent State is considered to retain Convention
liability in respect of treaty commitment prior to or subsequent to the entry
into force of the Convention (see, for example, paragraph 69 above). Moreover,
in the Al-Saadoon and Mufdhi judgment
the Court further held that “it is not open to a ContractingState to enter into
an agreement with another State which conflicts with its obligations under the
Convention. This principle carries all the more force ... given the absolute
and fundamental nature of the right not to be subjected to the death penalty
and the grave and irreversible harm” risked by the applicant (see paragraph
138 of the said judgment). The fact that the harm which an interim measure was
designed to prevent subsequently does not materialise, despite a State’s
failure to act in full compliance with the interim measure, is equally
irrelevant for the assessment of whether the respondent State has fulfilled its
obligations under Article 34 (see Grori, cited above, § 194; and, Paladi,
cited above, § 89).
Finally, the Court rejects the Government’s
argument that the applicant’s extradition was unavoidable given the imminent
expiry of his period of detention and the absence of any alternative to his
release. In the first place, there was no legal basis for the applicant’s
extradition after the Supreme Court’s judgment of 26 November 2010.
Furthermore, the Court notes that although the time-limit for the applicant’s
extradition was extended to 1 December 2010 (see paragraph 23 above), he
was physically removed on 24 November 2010, that is just two days prior to
the Supreme Court’s decision. Secondly, neither the existing state of national
law expounded by the Government, notably the alleged legal vacuum concerning
the continuation of detention beyond the time-limit provided for in Article 499
of the CCP, nor deficiencies in the national judicial system and the
difficulties encountered by the authorities in seeking to achieve their
legislative and regulatory objectives, can be relied upon to the applicant’s
detriment, in the absence of a final domestic court judgment authorising his
extradition, or avoid or negate the respondent State’s obligations under the
Convention(see, mutatis mutandis, M.S.S. v. Belgium and Greece [GC],
no. 30696/09, § 321, ECHR 2011; Abdolkhani and Karimnia v. Turkey,
no. 30471/08, §§ 113-117, 22 September 2009; Čonka v. Belgium,
no. 51564/99, § 84, ECHR 2002‑I; Jabari v. Turkey, no. 40035/98, §§ 49‑50, ECHR 2000‑VIII). Thirdly, there is no
indication that the authorities considered the possibility of taking any steps
to remove the risk of the applicant’s flight in the event of his release, by,
for example, the imposition of other coercive forms of security measures
provided for under the CCP (see paragraphs 47 and 48 above).Fourthly, the
authorities did not inform the Court, prior to the extradition, of the
difficultiesencountered by them in complying with the interim measure.
In these circumstances, the Court concludes that
the domestic authorities’ non-compliance with the interim measure at issue, in
the absence of any objective justification, constitutes a violation of Article
34 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant complained of a breach of Article
3 of the Convention on account of the imposition of a life sentence without
parole by the United States courts. The Government contended that the applicant
had not raised this complaint before domestic courts.
The Court recalls that the imposition of a life
sentence on an adult offender is not, in itself, prohibited by Article 3 or any
other provision of the Convention or incompatible therewith (see, among many
other authorities, Bamber v. the United Kingdom, no. 13183/87,
Commission decision of 14 December 1988, and Sawoniuk v. the United Kingdom
(dec.), no. 63716/00, ECHR 2001-VI). It is only in very exceptional cases that
an applicant will be able to demonstrate that the sentence he or she would face
in a non-Contracting State would be grossly disproportionate and thus contrary
to Article 3 at the moment of its imposition (see Harkins and Edwards v. the
United Kingdom, nos. 9146/07 and 32650/07, § 134,17 January 2012). In
the absence of any such gross disproportionality, an Article 3 issue will arise
for a mandatory sentence of life imprisonment without the possibility of parole
in the same way as for a discretionary life sentence, when it can be shown: (i)
that the applicant’s continued imprisonment can no longer be justified on any
legitimate penological grounds; and (ii) that the sentence is irreducible de
facto and de iure (see Harkins and Edwards, cited above, §
138; and,Kafkaris v. Cyprus [GC], no. 21906/04, § 98, ECHR 2008).
In
the circumstances of the present case, the Court considers that it is
not necessary to examine the question of exhaustion of domestic remedies by the
applicant, because this complaint is in any event manifestlyill‑founded
for the following reasons. At the time of the submission of this complaint, the applicant had not yet been
convicted, still less begun to serve his sentence. Had the applicant been
sentenced, the Court does not find that the likely sentence to be imposed would
have beengrossly disproportionate, having regard to the counts with which he
was charged and the plea bargain he has voluntarily and knowingly made.
Moreover, the applicant did not show that, upon extradition, his incarceration
in the United States would not serve any legitimate penological purpose.
Indeed, if he had been given a mandatory life sentence, it may well have been
that the point at which his continued incarceration would no longer serve any
purpose would never have arisen. Lastly, the Court notes that the applicant
was,in fact, sentenced by the United States court to 80 months’ imprisonment
(see paragraph 44 above)The
Court therefore considers that this complaint is manifestly ill‑founded
and should be rejected in accordance with Article 35 §§ 3 (a) and 4 of the
Convention.
The applicant further complained that his
initial arrest and continued detention were in breach of Article 5 § 1 of the
Convention. The Government submitted that there was a legal basis under
domestic law for the applicant’s initial custody and his continued detention.
The Court notes that the applicant was detained
as a person “against whom action is being taken with a view to ... extradition”
and this detention fell under Article 5 § 1 (f). The parties dispute, however,
whether this detention was “lawful” within the meaning of Article 5 § 1 of the
Convention.
Where the “lawfulness” of detention is in issue,
the Convention refers essentially to national law and lays down the obligation
to conform to the substantive and procedural rules thereof. Compliance with
national law is not, however, sufficient. Article 5 § 1 requires in addition
that any deprivation of liberty should be in keeping with the purpose of
protecting the individual from arbitrariness (see, for example, Saadi v. the
United Kingdom [GC], no. 13229/03, § 67, ECHR 2008).
In the instant case, the applicant was remanded
in custody on 2 July 2010. His custody was validated in accordance with the law
by the domestic courts, which relied on an international wanted notice and
Article XI of the Extradition Treaty. The Court notes that the Extradition
Treaty allows for a two-month custodial detention pending receipt of the
official request for extradition from the requesting State. The period that
elapsed between the date of the applicant’s arrest and the date of the United
States request for extradition (2 July and 30 August 2010), amounts to less
than two months. The Court has no grounds upon which to conclude that the
applicant’s detention, prior to receipt of the United States official request
for his extradition, was “unlawful” merely because of the lack of an official
request for extradition (see Khodzhayev v. Russia, no. 52466/08, § 137, 12 May 2010).
As to the compliance of the applicant’s
continued detention with national law, the Court observes that the domestic
courts, in extending his detention, acted in accordance with Article 493 of the
CCP. The extension of his detention was based on judicial decisions.
Furthermore, the length of the overall detention, that is four months and
twenty-two days, was not excessively long and was justified by the conduct of
the extradition proceedings. Moreover, the Court does not consider that the
domestic courts lacked any due diligence in examining the applicant’s case (see
Quinn v. France, 22 March 1995, § 48, Series A no. 311).
The Court therefore considers that this
complaint is manifestly ill‑founded and should be rejected in accordance
with Article 35 §§ 3 (a) and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The applicantsubmitted that, while it was
difficult to calculate his precise pecuniary damage, it should not be less than
18,000 euros (EUR). This included his salary, his education fees and the amount
concerning the alleged unjust deprivation of liberty. He further claimed EUR
30,000 in respect of non-pecuniary damage.
The Government objected to the applicant’s
claims arguing that they were excessive and unreasonable.
In the present case, the Court has found a
violation of Article 34 of the Convention. The Court does not discern any
causal link between the violations found and the pecuniary damage alleged. As
regards the award for non-pecuniary damage, the Court considers that the
finding that there was a breach of Article 34 of the Convention constitutes of
itself sufficient just satisfaction (see, for example, Al-Saadoon and Mufdhi,
cited above, § 174).
B. Costs and expenses
The applicant also claimed 2,465,743 Albanian
leks (ALL) for the costs and expenses incurred before the domestic courts and
those incurred before this Court. He further claimed 238,498.1 United States
Dollars (USD) for the costs and expenses incurred before the United States courts. He submitted detailed invoices.
The Government rejected the applicant’s claims.
The Court reiterates that only legal costs and
expenses found to have been actually and necessarily incurred (in the case of domestic
proceedings, in seeking redress for the violations of the Convention found or
preventing a violation occurring) and which are reasonable as to quantum are
recoverable under Article 41 of the Convention (see, for example, Nikolova
v. Bulgaria [GC], no. 31195/96, § 79, ECHR 1999-II; Smith and Grady v.
the United Kingdom, nos. 33985/96 and 33986/96, § 28, ECHR 1999-VI; and Roche
v. the United Kingdom [GC], no. 32555/96, § 182, ECHR 2005-X).
The Court considers that the applicant’s
lawyers’fees incurred in the domestic proceedings do not constitute expenses
incurred in seeking redress for the violations of the Convention found in the
present case. However, having regard to the detailed supporting documents
submitted and,making its assessment on an equitable basis,the Court awards the
applicant EUR 1,500 in respect of the Strasbourg proceedings.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declaresthe complaint concerning Articles 2
and 3 of the Convention and Article 1 of Protocol No. 13 arising from the risk
of the imposition of the death penalty and the complaint under Article 34
admissible and the remainder of the application inadmissible;
2. Holdsthat there has been no violation of
Articles2 and 3 of the Conventionand Article 1 of Protocol No. 13 on account of
the applicant’s extradition to the United States;
3. Holds that there has been a violation of
Article 34 of the Convention;
4. Holds
(a) that the finding of a violation constitutes
sufficient just satisfaction for the non-pecuniary damage suffered by the
applicant;
(b) that the respondent State is to pay the
applicant, within three monthsfrom the date on which the judgment becomes final
in accordance with Article 44 § 2 of the Convention,EUR 1,500 (one
thousand five hundred euros),plus any tax that may be chargeable, in respect of
costs and expenses, to be converted into the national currency at the rate
applicable at the date of settlement;
(c) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
5. Dismissesunanimously the remainder of the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 25 September
2012, pursuant to Rule77§§2 and3 of the Rules of Court.
Fatoş
Aracı Lech Garlicki
Deputy Registrar President
