CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 21 mai 1998

.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. 34573/97                  by Roger Charles DAY                  against Italy        The European Commission of Human Rights (First Chamber) sitting in private on 21 May 1998, the following members being present:        MM.    M.P. PELLONPÄÄ, President            N. BRATZA            E. BUSUTTIL            A. WEITZEL            C.L. ROZAKIS      Mrs.   J. LIDDY      MM.    L. LOUCAIDES            B. MARXER            B. CONFORTI            I. BÉKÉS            G. RESS            A. PERENIC            C. BÎRSAN            K. HERNDL            M. VILA AMIGÓ      Mrs.   M. HION      Mr.    R. NICOLINI        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 4 July 1996 by Roger Charles DAY against Italy and registered on 24 January 1997 under file No. 34573/97;        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 is an U.S. citizen, born in 1964. He is currently detained in Newark (United States of America).        The facts of the case, as submitted by the applicant, may be summarised as follows.        The applicant's arrest        On 23 November 1995, the applicant and his wife were found in possession of false American passports at Rome airport. They were consequently stopped by the Italian police in order to be sent back to their place of departure (Singapore) following the so-called "refusal of entry" procedure ("procedura di respingimento").        On 24 November 1995, the United States Consulate in Rome issued a request for the provisional arrest of the applicant and his wife - charged in the United States with using false passports and misrepresentation   - with a view to extradition proceedings.        On 24 November 1995, the Italian police seized the passports and some goods and money belonging to the applicant and his wife. On 25 November 1995 at 12.15 a.m., the applicant was formally arrested in order to be extradited to the United States. His wife was released as she was pregnant.        In an order dated 27 November 1995, the Rome Court of Appeal, referring to the conditions laid down in Articles 714, 715 and 716 of the Code of Criminal Procedure and in the Extradition Treaty between Italy and the United States, held the applicant's arrest was lawful and placed him in detention with a view to extradition. The Court pointed out that on 17 November 1995 a warrant of arrest had been issued against the applicant by the Hawaii District Court, that there were no grounds to rule out the possibility that extradition would be granted and that the charges brought against the applicant, clearly described by the requesting country, were punishable under Italian law by a penalty of more than one year's imprisonment. Moreover, having regard to the fact that the applicant had been found in possession of a false passport, that he had no permanent address and was only in transit in Italy, the court considered that detention was necessary to prevent him from fleeing pending trial. This decision was served on the applicant on 29 November 1995.        By a fax of 29 November 1995, the director of the Rome prison informed the Rome Court of Appeal that the applicant had declared that the sole language he could speak was English. The applicant alleges that, notwithstanding the above-mentioned declaration, most of the legal documents produced in the course of the proceedings by the Italian authorities were served on him in the original Italian version only, and that he did not receive any explanation in English about their content.        On 2 December 1995, the applicant declared before the Rome Court of Appeal that he agreed to be extradited to the United States in order to be tried for use of a false passport and misrepresentation, as indicated by the U.S. Consulate. The Court of Appeal's official record shows that, on that occasion, the applicant was assisted by an interpreter, who translated from Italian into English the charges laid by the U.S. authorities.        On 8 January 1996, the U.S. authorities requested the extradition of the applicant not only in relation to the above-mentioned charges, allegedly committed in the State of Hawaii, but also for theft, swindling and bribery, offences allegedly committed in the State of New Jersey.        On 16 and 18 January 1996, the Italian Ministry of Justice requested the Rome Court of Appeal to obtain a new consent to extradition from the applicant, the first consent being not irrevocable and having been given only in relation to the charges pending in the State of Hawaii.        On 18 November 1996 the Rome Court of Appeal granted the U.S. authorities' extradition request. On 27 December 1996, the applicant lodged an appeal on points of law with the Court of Cassation.        By a judgment of 18 April 1997, the Court of Cassation upheld the lower court's extradition order.        On 10 July 1997, the applicant was extradited to the United States. He was subsequently detained in Newark prison awaiting trial on the New Jersey State charges only, as Italy apparently did not agree to extradite him on any U.S. Federal charge.        The remedies against the applicant's detention        On an unspecified date, but in any case after 8 January 1996, the applicant sent to the Rome Court of Appeal an application for immediate release. He observed that under Article XII para. 4 of the Bilateral Extradition Treaty between Italy and the United States of America (signed on 13 October 1983 and ratified by Italian law n° 225 of 26 May 1984), the provisional arrest of a person to be extradited should be revoked if extradition was not requested within a forty-five day time-limit. He stated he had been detained since 23 November 1995 or at the latest since 24 November 1995, while the U.S. authorities had presented their request for extradition on 8 January 1996, that is forty-six days after his arrest. He referred to a fax sent by the central department of the Italian criminal police to the Ministry of Justice which indicated that "... on 24 November 1995, the above- mentioned Day Roger C. was arrested with a view to his extradition to the United States of America". The content of the fax was moreover confirmed by a letter sent on 18 January 1996 by the Ministry of Justice to the fourth criminal chamber of the Rome Court of Appeal.        By an order of 2 April 1996, the Rome Court of Appeal dismissed the applicant's claim on the ground that the custodial measure had begun on 25 November 1995.        The applicant then lodged an appeal on points of law with the Court of Cassation. In a judgement of 2 July 1996, filed with the registry on 26 September 1996, the court dismissed the applicant's claim. The court noted that the police's official records unequivocally indicated that the applicant had been arrested on 25 November 1995 at 12.15 a.m. Moreover, even assuming that the applicant had been arrested on 24 November 1995, the forty-five day time-limit would in any case have been respected, as the request for extradition had been presented on 8 January 1996. In fact, according to Articles 696 para. 2 and 714 para. 2 of the Code of Criminal Procedure read in conjunction with Article 14 of the Criminal Code, the dies a quo should not be taken into account in reckoning the length of the provisional custody.        On 20 January 1997, the applicant requested his immediate release, contesting the lawfulness of the decision of 18 November 1996. By an order of 27 January 1997, filed at the registry on 4 February 1997, the Court of Appeal rejected this claim.   COMPLAINTS   1.    Invoking Article 5 para. 1 of the Convention, the applicant complains in the first place that his arrest and his subsequent detention on remand were neither "lawful" nor "in accordance with a procedure prescribed by law".   2.    Invoking Article 5 para. 2 of the Convention, the applicant alleges that he was not informed, in a language which he could understand, of the reasons for his arrest or of any charge against him.   3.    The applicant complains that the lawfulness of his detention was not decided speedily. He invokes Article 5 para. 4 of the Convention.   THE LAW   1.    Invoking Article 5 para. 1 (Art. 5-1) of the Convention, the applicant complains that his arrest and his subsequent detention on remand were neither "lawful" nor "in accordance with a procedure prescribed by law".        In so far as relevant, Article 5 para. 1 (Art. 5-1) reads 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:      ...            f.     the lawful arrest or detention ... of a person      against whom action is being taken with a view to ...      extradition."        The applicant points out that his deprivation of liberty began on 23 November 1995. Consequently, the Italian authorities should have revoked his provisional arrest for non-compliance, on the part of the U.S. Consulate, with the forty-five day time-limit set forth in Article XII para. 4 of the Bilateral Extradition Treaty.        The Commission recalls that when requiring that a detention be "lawful" and in compliance with a "procedure prescribed by law" the Convention essentially refers back to national law and states the obligation to conform to the substantive and procedural rules thereof. It further requires that any deprivation of liberty should be consistent with the overall purpose of Article 5 (Art. 5), namely to protect individuals from arbitrariness (see, e.g., Eur. Court HR, Van der Leer v. the Netherlands judgment of 21 February 1990, Series A no. 170-A, p. 12, para. 22). If detention is to be "lawful", including the observance of a procedure prescribed by law, it must essentially comply with national law and the substantive and procedural rules thereof (see, e.g. Eur. Court HR, Herczegfalvy v. Austria judgment of 24 september 1992, Series A no. 244, p. 21, para. 63). Article 5 para. 1 (f) (Art. 5-1-f) does not require the Commission to provide its own interpretation on questions of national law concerning the legality of the detention or extradition. The scope of the Commission's review is limited to examining whether there was a legal basis for the detention and whether the decision of the courts on the question of lawfulness could be described as arbitrary in the light of the facts of the case (see, mutatis mutandis, Zamir v. United Kingdom, Comm. Report 11.10.83, para. 87, D.R. 40, p. 55).        As regards the present case, in so far as the applicant complains that the national authorities did not respect the procedure "prescribed by law", the Commission points out that the applicant's arrest and detention on remand were ordered by the competent courts in compliance with all the guarantees set forth in Italian law. The Commission consequently considers that the applicant's deprivation of liberty was ordered "in accordance with a procedure prescribed by law".        The Commission will now turn to the question whether the measures at issue were "lawful" within the meaning of the Convention.        In the present case, the Rome Court of Appeal upheld the arrest of the applicant and placed him in detention with a view to extradition on the basis of the U.S. Consulate's extradition request, which under no reasonable ground could be considered persecutory in nature, invalid or otherwise contrary to the fundamental principles on extradition laid down in Italian law. As to the fact, alleged by the applicant, that his provisional arrest should have been revoked for non-compliance with the forty-five day time-limit provided for by Article XII para. 4 of the Bilateral Extradition Treaty between Italy and the United States of America, the Commission points out that the police's official records unequivocally indicate that the applicant was arrested on 25 November 1995. It is true the applicant was stopped at Rome Airport on 23 November 1995; however, this act aimed only to prevent him and his wife from entering Italy by sending them back to Singapore in accordance with the so-called "refusal of entry" procedure ("procedura di respingimento"). In this context, it is to be recalled that the United States Consulate issued their request for provisional arrest on 24 November 1995 only. Consequently, it was on 25 November 1995 that the applicant's deprivation of liberty amounted to the "arrest of a person against whom action is being taken with a view to ... extradition" within the meaning of Article 5 para. 1 f) (Art. 5-1-f). Moreover, the decisions contested by the applicant are fully reasoned on this point excluding any arbitrariness.        In these circumstances, it does not appear that the applicant's detention was ordered arbitrarily or that the approach adopted by the Italian authorities was in any way inconsistent with the Convention. The Commission does not consider therefore that the applicant's detention was unlawful under domestic law and thus contrary to Article 5 para. 1 (Art. 5-1) of the Convention.        It follows that this part of the application is manifestly ill- founded and must be rejected under Article 27 para. 2 (Art. 27-3) of the Convention.   2.    The applicant alleges that he was not informed of the reasons for his arrest. He relies on Article 5 para. 2 (Art. 5-2) of the Convention, which provides:        "Everyone who is arrested shall be informed promptly, in a      language which he understands, of the reasons for his      arrest and of any charge against him."        The applicant observes that, in spite of the statements he made to the director of the Rome prison, pointing out that the sole language he could speak was English, the records of his arrest and the decisions of the judicial authorities were served on him in their original Italian version only.        The Commission recalls that under its case-law, in case of arrest it is sufficient for the detainee to be promptly informed, in a language which he understands, of the legal basis for his detention (see, mutatis mutandis, No. 11539/85, Dec. 12.7.86, D.R. 48, pp. 237, 242-243).        In the present case, on 23 November 1995 the applicant was found in possession of a false American passport and stopped by the Italian police at Rome airport in order to be sent back to his place of departure. The reasons of his stopping as well as the nature and the purpose of the so called "refusal to entry" procedure should have been clear to the applicant on the sole basis of the context in which these events took place.        Subsequently, on 25 November at 12.15 a.m. (an occasion to which the applicant makes no particular reference) he was, according to the documentation provided by him, handed a copy of the arrest warrant. Even assuming that no verbal explanation in English was given to him on that occasion, it would have been clear to an English-speaker that certain of the Italian phrases meant that his extradition was being sought in relation to use of a false passport in a matter of concern to the United States Consulate in Rome ("arresto ... per fini estradizionali a carico di DAY Roger ... identificato dalle autorità Consolari U.S.A. in Roma" "... passaporti americani falsificati").        Moreover, on 2 December 1995 an interpreter assisted the applicant before the Rome Court of Appeal and translated from Italian into English the charges which had been laid against him by the U.S. authorities in his home country. On that occasion, the applicant declared that he agreed to be extradited to the United States and therefore showed he had understood the nature of the proceedings brought against him as well as the reasons and legal basis for his detention.        In these circumstances, the Commission considers that the information provided to the applicant was sufficient to satisfy the obligation under Article 5 para. 2 (Art. 5-2).        It follows that this complaint is manifestly ill-founded and must be rejected under Article 27 para. 2 (Art. 27-2) of the Convention.   3.    The applicant complains that the lawfulness of his detention was not decided speedily. He relies on Article 5 para. 4 (Art. 5-4) of the Convention, which provides:        "Everyone who is deprived of his liberty by arrest or      detention shall be entitled to take proceedings by which      the lawfulness of his detention shall be decided speedily      by a court and his release ordered if the detention is not      lawful."        The applicant contends that although he was arrested on 23 or 24 November 1995, the Rome Court of Appeal decided on his claim for immediate release only on 2 April 1996 and that the Court of Cassation's final judgment was not filed with the registry until 26 September 1996. He further considers that the Court of Cassation has also violated Article 5 para. 4 (Art. 5-4) by refusing to revoke his arrest as illegal.        In sofar as the applicant complains about the refusal to revoke his arrest, the Commission observes that this point has already been discussed under Article 5 para. 1 f) (Art. 5-1-f) and that no separate question arises under Article 5 para. 4 (Art. 5-4). The Commission will therefore confine itself to determining whether the applicant's right to take proceedings by which the lawfulness of his detention shall be decided speedily by a court has been impaired in the present case.        In this context, the Commission observes that on 27 November 1995 - that is to say two days after the applicant's formal arrest - the Rome Court of Appeal decided to place him in detention with a view to extradition. It therefore carried out a first review of the lawfulness of his arrest.        Under Italian law the applicant was subsequently entitled to take proceedings by which the lawfulness of his continued detention was to be decided by a "court". The applicant contends that the decisions in those proceedings were not adopted "speedily". However, he has not indicated the dates on which he introduced his claim for immediate release before the Court of Appeal and his appeal on points of law before the Court of Cassation and has therefore not provided the Commission with all the relevant information. In any case, the Commission observes that the applicant could not have lodged his claim for immediate release, based on non-compliance with the time-limit set forth in the Bilateral Treaty, before 8 January 1996, the date on which the U.S. authorities had requested his extradition. Against this background, it is to be noted that the Rome Court of Appeal and the Court of Cassation adopted their fully reasoned decisions on 2 April and 2 July 1996 respectively.        Accordingly, within a period of little more than seven months from the date of the arrest, two judicial bodies with full jurisdiction reviewed on three occasions the lawfulness of the applicant's detention with a view to extradition. In the light of all the circumstances of the case and having regard to the lack of information concerning the dates of introduction of the applicant's claim and appeal, the Commission cannot conclude that his right to a speedy decision on the lawfulness of his detention was impaired.          It follows that this complaint is manifestly ill-founded and must be rejected under Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, by a majority,        DECLARES THE APPLICATION INADMISSIBLE.     M.F. BUQUICCHIO                         M.P. PELLONPÄÄ      Secretary                                President to the First Chamber                    of the First Chamber