CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 18 octobre 1995

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 23572/94                       by Carmine ESPOSITO                       against Italy        The European Commission of Human Rights (First Chamber) sitting in private on 18 October 1995, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC                  C. BÎRSAN              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 29 November 1993 by Carmine ESPOSITO against Italy and registered on 3 March 1994 under file No. 23572/94;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, an Italian national born in 1956, is currently detained in Nuoro.        Before the Commission, he is represented by Mr. Filippo Trofino, a lawyer practising in Naples.        The facts of the case, as they have been submitted by the applicant, may be summarised as follows.        By judgment of 29 April 1986, which became final on 6 April 1987, the Naples Court of Appeal convicted the applicant in absentia for belonging to a mafia-type organisation and other crimes, and sentenced him to eight years' imprisonment.        On 12 March 1987 the applicant was arrested in Chicago, where he was residing at that time, and detained on remand pursuant to an extradition request filed with the US authorities by the Italian Ministry of Justice, in pursuance of nine arrest warrants issued on 31 January 1984, 2 February 1984 (three warrants), 3 February 1984, 20 March 1984, 29 March 1984 and 13 June 1985 (two warrants) respectively by the Public Prosecutor's Offices of Naples and Santa Maria Capua Vetere in connection with certain criminal proceedings pending against the applicant mainly on charges of murder. The USA are bound to Italy by a Convention on Extradition of 13 October 1983.        After two hearings on 22 and 23 April 1987, the US judge authorised the extradition on 5 June 1987; the applicant then applied for a writ of habeas corpus. On 12 June 1987, the US Magistrate ordered that the applicant be extradited to Italy.        On 20 April 1988 and 20 September 1988, the Naples Court of Appeal and the Santa Maria Capua Vetere Court respectively issued two orders for the applicant's release from prison ("ordine di scarcerazione"), the relevant time-limits for his detention on remand in connection with the pending criminal proceedings having expired.        On 26 September 1988, the applicant applied to the US court of his place of detention in order to be released from prison on the basis of the said two Italian orders for release; his request was dismissed by decision of 5 October 1988.        Meanwhile, on 4 October 1988, an order for imprisonment ("ordine di carcerazione") was issued by the Public Prosecutor's Office of Naples in pursuance of the applicant's enforceable conviction by the Naples Court of Appeal.        By note of 6 October 1988, the Italian Ministry of Justice informed the US authorities thereof.        On 20 October 1988 the Italian authorities made a second extradition request against the applicant in connection with the latter's conviction by the Naples Court of Appeal.        On the 21 October 1988, the US Government started deportation proceedings against the applicant.        Meanwhile, the Italian authorities withdrew the first extradition request against the applicant.        On 14 November 1988, the Italian Public Prosecutor appeared before the US Assistant Attorney in order to support the second extradition request. Nevertheless, the extradition proceedings were not pursued.        After a hearing on 26 October 1989, on 14 June 1990 the US Immigration Magistrate ordered that the applicant be deported to Italy.        On 18 August 1991, in execution of the deportation order the applicant was transferred to Milan, where he was taken into police custody and subsequently imprisoned in Busto Arsizio in execution of his 1986 conviction.        While in prison, the applicant was notified of an order for release from prison as from 8 January 1998. The calculation of the length of the sentence to be served had taken into account only the detention suffered in the USA from 12 March 1987 up to 21 October 1988, date when the US authorities had started the deportation proceedings against the applicant: only one year, seven months and nine days had therefore been deducted from the eight year sentence.        The applicant applied ("incidente di esecuzione") to the Naples Court of Appeal against the order for release, contending that the whole period of detention in the USA (namely from 12 March 1987 up to 18 August 1991) should have been deducted from the eight year sentence pursuant to his conviction by the Naples Court of Appeal, and therefore his release date had to be adjusted accordingly.        In the course of these proceedings, the applicant requested that the file concerning the extradition proceedings be obtained from the Ministry of Justice. The Court of Appeal rejected this request on the ground that the documents already in its possession were sufficient.        By decision of 16 September 1992, the Court of Appeal rejected the applicant's appeal. It held, inter alia, that after 21 October 1988 the applicant had been kept in detention with a view to deportation and not to extradition.        On 30 October 1992, the applicant lodged an appeal on points of law against this decision, contending that his detention after 21 October 1988 had still been in pursuance of the extradition requests filed by the Italian authorities.        On 7 April 1993, the Public Prosecutor supported the applicant's request that the Court of Appeal decision be quashed.        By judgment of 2 June 1993, filed in the Registry on 30 September 1993, the Court of Cassation dismissed the appeal on points of law as being manifestly ill-founded.   COMPLAINTS   1.    The applicant complains that a large part of his detention in the USA awaiting extradition, namely from 21 October 1988 to 18 August 1991, was not taken into account as part of the eight year sentence to be served in Italy pursuant to his original conviction. He further alleges a violation of Article 14 of the Convention, in that other detainees have benefited from the deduction from their sentence of the whole period of detention they had suffered awaiting extradition.   2.    In so far as part of the time he spent in prison in the USA has not been deducted from his sentence, the applicant further maintains that he is suffering detention in Italy which is not legally justified, in breach of Article 5 of the Convention.   3.    The applicant also complains under Article 6 of the Convention about the length and fairness of the proceedings before the Naples Court of Appeal and the Court of Cassation concerning the calculation of his sentence.        In particular, as to the length, the applicant complains that the proceedings lasted 21 months, despite the fact that his liberty was at stake.        As to the fairness, he maintains that his right of defence was hindered in that the Court of Appeal rejected his request that the file concerning the extradition proceedings and kept by the Ministry of Justice be joined to the file in the appeal proceedings.   4.    The applicant finally invokes Articles 3 and 7 of the Convention.   THE LAW   1.    The applicant complains that a large part of his detention in the USA was not deducted from the eight year sentence he is currently serving in Italy. He also maintains that other detainees have benefited from the deduction of the whole period of detention they had suffered awaiting extradition from their sentence, and therefore alleges a violation of Article 14 (Art. 14) of the Convention in this respect.        The Commission first recalls that the Convention does not guarantee the right for time spent in detention pending extradition to be counted as part of the sentence (cf. No. 10854/84, Dec. 8.7.85, D.R. 43, pp. 177 ss.). The Commission further recalls its constant case-law to the effect that Article 14 (Art. 14) of the Convention only prohibits discrimination in the enjoyment of the rights and freedoms guaranteed by the Convention (cf., for example, No. 11278/84, Dec. 1.7.85, D.R. 43, p. 216).        It follows that these complaints are incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicant further argues that the failure to count three years of his detention in the USA as part of the eight year sentence he is serving in Italy rendered his detention in Italy after he had served five years illegal, in breach of Article 5 (Art. 5) of the Convention.        Article 5 (Art. 5) of the Convention, in so far as relevant, provides as follows:        "1.    Everyone has the right to liberty and security of      person. No one shall be deprived of his liberty save in the      following cases and in accordance with a procedure      prescribed by law:        a.     the lawful detention of a person following conviction      by a competent court (...).        The Commission observes that by judgment of the Naples Court of Appeal dated   29 April 1986, the applicant had been convicted in absentia on charges of belonging to a mafia-type organization, and sentenced to eight years' imprisonment. Following an order for deportation issued by the US Authorities, on 21 August 1991 the applicant was conveyed to Milan, where he was taken into police custody and imprisoned in pursuance of his original conviction. He is currently serving the eight year sentence.        Therefore the applicant's detention in Italy follows his conviction by the Naples Court of Appeal and is thus justified under Article 5 para. 1 (a) (Art. 5-1-a) (cf. Eur Court H.R., Wemhoff judgment of 27 June 1968, Series A no.7, p. 23, para. 9; No. 20253/92, G.P. v. Italy, Dec. 6.4.95, unpublished). It follows that this complaint is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.    The applicant complains under Article 6 (Art. 6) of the Convention about the length and fairness of the proceedings concerning the calculation of his sentence in respect of the detention already suffered awaiting extradition. He complains in particular of the fact that the Court of Appeal rejected his request that the file concerning his extradition from the USA, kept by the Ministry of Justice, be enclosed to the file in the appeal proceedings.        Article 6 (Art. 6) of the Convention, in so far as relevant, reads as follows:        "In the determination of his civil rights and obligations      or of any criminal charge against him, everyone is entitled      to a fair (...) hearing within a reasonable time by an      (...) impartial tribunal established by law (...)."        The Commission recalls that Article 6 (Art. 6) of the Convention is only applicable where the case concerns the determination of civil rights and obligations or of a criminal charge.        It is true that according to the Convention organs' constant case-law the latter concept comprises the determination of the sentence by the sentencing judge (cf., inter alia, No. 18484/91, Dec. 30.6.93, unpublished; Eur. Court H.R., Eckle judgment of 28 June 1989, Series A no. 51, p. 35, para. 77). In the present case, however, the applicant did not challenge the sentence as such, but only the question of how many years of detention pending extradition should have been deducted from the sentence already inflicted on him.        Neither the applicant's civil rights and obligations, nor any criminal charges against him were thus at stake, but only the means of execution of a sentence already inflicted; Article 6 is therefore not applicable in the present case (cf. No. 7034/75, Dec. 12.10.77, D.R. 10, p. 146; No. 11077/84, Dec. 13.10.86, D.R. 49, p. 170; No. 21169/92, Dec. 31.8.94, unpublished).        It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.    As regards the applicant's complaints under Articles 3 and 7 (Art. 3, 7) of the Convention, the Commission has examined these complaints as they have been submitted by the applicant. It finds however that they fail to disclose any violation of the provisions of the Convention invoked by him.        It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                         (C.L. ROZAKIS)