CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 7 octobre 2008

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THE FACTS The applicant, Mr José Monedero Angora, is a Spanish national who was born in 1960 and lives in Alcazar de San Juan. He was represented before the Court by Mr M. Cobo del Rosal, a lawyer practising in Madrid. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. On 18 June 2004 the applicant was arrested in Spain and remanded in custody in execution of a European arrest warrant issued by the French judicial authorities following a judgment by the Pau tribunal de grande instance delivered in his absence on 12 January 1993. In that judgment, the court had sentenced the applicant to five years’ imprisonment for a drug-related offence. On 25 June 2004 central examining magistrate no. 4 referred the case to the Audiencia Nacional for a decision on the merits. However, he considered that the statutory time-limit for surrendering the applicant to the French authorities had not been complied with and that the application to have the applicant surrendered to the French authorities could therefore be rejected, the applicant being opposed to it. On 15 July 2004 the applicant submitted an application for bail, arguing that there was nothing to indicate that he had committed the offence in respect of which the French courts had delivered their judgment in 1993. The Audiencia Nacional dismissed his application by a decision of 20 July 2004. However, on 27 July 2004 the same court ordered the applicant’s release. At the same time, it requested the French authorities to provide the fingerprints of the person who had been detained in France, and asked Interpol for the fingerprints of the person who was the subject of the extradition request. In a decision of 22 December 2004, the Audiencia Nacional agreed to surrender the applicant to the French authorities. It noted that the procedure complied with the conditions laid down in Law 3/2003 of 14 March 2003, which had been enacted in Spain pursuant to the obligations on the State under the framework decision on the European arrest warrant and the surrender procedures between member States adopted by the Council of the European Union on 13 June 2002 (OJEC L 190/1 of 18 July 2002). The decision made the surrender of the applicant to the French authorities conditional on any sentence that might be imposed upon him being executed in Spain, as the judgment convicting him had been delivered in his absence and was therefore subject to appeal. On 30 December 2004 the applicant submitted an application for interpretation ( aclaración ) of that decision. The application concerned, firstly, whether he had been identified and by what means and, secondly, the application to his case of Law 4/1985 of 21 March 1985 on passive extradition and not of the framework decision of the Council of the European Union of 13 June 2002, given that the facts at the origin of the criminal proceedings in France had taken place between February 1991 and January 1992. On 31 January 2005 the Audiencia Nacional dismissed the application, considering that the contested decision did not fall into the category of cases subject to an application for interpretation under section   267 of the Judicature Act. Owing to an error, the applicant was not informed that his application had been dismissed. On the same day, the Audiencia Nacional ordered that the applicant be detained for surrender to the French authorities. An appeal ( recurso de súplica ) lodged against that decision was dismissed on 18 February 2005, as the measure had been adopted for the purposes of surrendering the applicant to the French authorities but the applicant could still serve the final sentence in Spain. Relying on Article 24 (right to a fair trial) in conjunction with Articles 17 (right to freedom) and 25 (principle of legality) of the Constitution, the applicant lodged an amparo appeal (action for infringement of fundamental rights) with the Constitutional Court against the decisions of 22   December 2004 and 31 January and 18 February 2005. The Constitutional Court dismissed the appeal in a judgment delivered on 18   July 2005 and served on 27 July 2005. It dismissed the complaints relating to the decision of 22 December 2004 as they were out of time, and considered that the applicant had not been adversely affected by the failure to notify him of the rejection of his application for interpretation of the decision delivered on 31 January 2005 because that application had clearly been futile. With regard to the decisions of 31 January and 18 February 2005 relating to the detention of the applicant for the purposes of surrendering him to the French authorities, the Constitutional Court noted that the amparo appeal did not contain any complaint about those decisions; the applicant had confined himself to arguing, firstly, that the Audiencia Nacional should have applied the extradition law, which he considered to be of greater relevance to his case, and not Law 3/2003 on the European arrest warrant and, secondly, that the French criminal proceedings resulting in a European arrest warrant being issued against him had related to a statute-barred offence. In that connection, the Constitutional Court observed that it was not its task to reconstruct the reasons given by applicants for lodging an appeal. The applicant then requested that the decision of 31 January 2005 be served on him, which was done on 7 September 2005. On 14 September 2005 he lodged a further amparo appeal with the Constitutional Court. In a decision of 29 September 2005, the court dismissed the appeal, holding that an application for interpretation which artificially extended the proceedings was inadmissible. B.     Relevant domestic law Section 267 of the Judicature Act “1.     The courts cannot amend decisions once they have been signed; however they can interpret obscure concepts and correct clerical errors ...” Law 3/2003 of 14 March 2003 on the European arrest warrant Statement of reasons (extracts) “... The purpose of this Law is to fulfil the obligations which the framework decision creates for the member States, and which consist of replacing extradition procedures with a new procedure for surrender [to the authorities of the applicant State] of persons who are suspected of having committed an offence or who try to escape justice after being convicted by a final decision. ... The application of the principle of mutual recognition requires that, once the competent authority has received the European warrant with a view to its execution, this takes place practically automatically, without the judicial authority that executes the warrant having to examine the application again to verify its conformity with domestic law. Therefore, the reasons enabling the judicial authority to refuse execution are laid down by law, and the nature [of the warrant] allows that authority to make an objective assessment. Thus the usual reasons for refusal in extradition proceedings are eliminated, such as those relating to the non-surrender of nationals or to the fact that certain offences are considered to be political offences. The extremely innovative nature of this procedure is even clearer if we consider that it applies to the long list of categories of offences set out in the framework decision, for which the existence of double criminality can no longer be verified. Accordingly, when the judicial authority receives a European arrest warrant for one of the types of offence listed, and provided that the corresponding sentence exceeds a given threshold, it must proceed with execution, whether or not its criminal legislation provides for such an offence. ...” COMPLAINTS 1.     Relying on Article 5 of the Convention, the applicant complained that he had been deprived of his liberty during the procedure for surrendering him to the French authorities under the European arrest warrant issued against him. 2.     Under Articles 6 and 7 of the Convention, he alleged a violation of the principle of the presumption of innocence and of his right to a fair trial before an independent and impartial court within a reasonable time, in line with the principles of legality and reciprocity. He submitted that Law   3/2003 on the European arrest warrant was not applicable in this case and that the procedure should have complied with Law 4/1985 on passive extradition. He also asserted that he had been unable to defend himself, because of the error which had occurred in serving him with the decision of 31   January 2005, rejecting his application for interpretation of the decision of 22   December 2004, and that the deadlines laid down by Law 3/2003 had been unjustifiably exceeded in the proceedings. 3.     Lastly, relying on Article 13 of the Convention, he complained, firstly, that, despite the fact that he had opposed the application for his surrender to the French authorities, Law 3/2003 did not provide for an appeal against the decision surrendering him to the French authorities adopted by the Audiencia Nacional , and, secondly, that his amparo appeal had been declared inadmissible as out of time, and thus deprived of its effectiveness. THE LAW 1.     Under Article 5 of the Convention, the applicant complained that he had been deprived of his liberty during the procedure for surrendering him to the French authorities. The relevant passages of this provision are worded as follows: Article 5 “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 deportation or extradition. ...” The Court finds that the applicant merely expressed his objections to being deprived of his liberty, without indicating the reasons why this was unlawful, and confined himself to challenging the procedure for his arrest and surrender to the French authorities and the related criminal proceedings. It also notes that the Constitutional Court found that none of the complaints submitted by the applicant in his amparo appeal related to his being deprived of his liberty. It follows that this complaint must be rejected as being manifestly ill-founded, in accordance with Article 35 § 3 of the Convention. 2.     The applicant considered that he was a victim of a violation of the right to a fair trial before an independent and impartial court within a reasonable time, in line with the principles of legality and reciprocity, and a violation of the principle of the presumption of innocence. He relied on Articles 6 and 7 of the Convention, which, in their relevant parts, are worded as follows: Article 6 “1.     In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ... 2.     Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. ...” Article 7 “1.     No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. ...” With regard to the applicant’s complaints under Article 6 of the Convention, the Court reiterates at the outset that the right not to be extradited is not as such one of the rights and freedoms recognised in the Convention and its additional Protocols (see K. and F. v. the Netherlands , no. 12543/86, Commission decision of 2 December 1986, Decisions and Reports 51, p. 272). Furthermore, the extradition procedure does not involve the determination of the applicant’s civil rights and obligations or of a criminal charge against him within the meaning of Article 6 of the Convention (see Peñafiel Salgado v. Spain (dec.), no. 65964/01, 16 April 2002). In view of the extracts from the statement of reasons of Law 3/2003 set out in the “Relevant domestic law” part, the Court notes that the European arrest warrant procedure replaces the standard extradition procedure between member States of the European Union and pursues the same aim, namely the surrender to the authorities of the applicant State of a person who is suspected of having committed an offence or who is trying to escape justice after having been convicted by a final decision. Execution of a European arrest warrant is, in fact, practically automatic; the judicial authority does not carry out a fresh examination of the warrant in order to check that it conforms to its own domestic law, and will only refuse its execution for reasons laid down by the Law. It follows from the above, analysed in the light of the case-law of the Court, that this procedure does not concern the determination of a criminal charge. Accordingly, this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3, and must be rejected pursuant to Article 35 § 4. As regards the complaint under Article 7 of the Convention, the Court observes that this provision is not applicable to the present case, as the surrender of the applicant to the French authorities was not a penalty inflicted on him for committing an offence, but a procedure intended to permit the execution of a judgment given in France. Consequently, this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3, and must be rejected pursuant to Article 35 § 4. 3.     Relying on Article 13 of the Convention, the applicant complained, firstly, that Law 3/2003 did not provide for an appeal against the decision surrendering him to the French authorities adopted by the Audiencia Nacional , and, secondly, that his amparo appeal was declared inadmissible as out of time and was thus deprived of its effectiveness. The Court notes that the effectiveness of an appeal does not depend on the certainty of a favourable outcome (see, among other authorities, Aparicio Benito v. Spain (dec.), no. 36150/03, 4 May 2004). In any event, it observes that even though Law 3/2003 does not provide for an ordinary appeal against a decision to surrender to the applicant authorities, the applicant was able to lodge an amparo appeal against the alleged infringements of his fundamental rights that he considered to have occurred as a result of the decision in question. The fact that he lodged that appeal late cannot in itself constitute a violation of the provision in question. It follows that this part of the application must be rejected as being manifestly ill-founded, in accordance with Article 35 § 3 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.