CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 25 septembre 2012

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ALBANIA   (Application no. 58555/10)             JUDGMENT       STRASBOURG   25 September 2012     FINAL   25/12/2012   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Rrapo v. Albania, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Lech Garlicki, President,   David Thór Björgvinsson,   Päivi Hirvelä,   George Nicolaou,   Ledi Bianku,   Nebojša Vučinić,   Vincent A. De Gaetano, judges and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 4 September 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     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. 2.     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. 3.     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. 4.     On 16 December 2010 the 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 5.     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 police at the request of the United States Embassy. 6.     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. 7.     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. 8.     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 from 2   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. 9.     The applicant appealed to the Supreme Court, which rejected the appeal on 12 November 2010. 10.     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 until 2   November 2010. B.     The extradition proceedings 11 .     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. 12.     On 31 August 2010 the prosecutor’s office requested the District Court to authorise the applicant’s extradition to the United States. 13 .     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. 14.     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). 15.     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.” 16 .     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. 17.     On 1 November 2010 the Minister of Justice ordered that the applicant’s extradition should be effected by 16 November 2010. 18.     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. 19.     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.” 20.     On 9 November 2010 the applicant lodged an appeal with the Supreme Court. He argued, inter alia , that the United States authorities had given no assurances about the non-imposition of the death penalty in breach of Article 21 of the Constitution. 21.     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. 22.     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). 23 .     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. 24 .     On 24 November 2010 the applicant was extradited to the United States. 25 .     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 a United States police officer could not be considered evidence within the meaning of domestic criminal procedure provisions. 26.     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. 27.     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.” 28.     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 the Republic 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 Requesting State to convey such assurances. These assurances as provided in diplomatic note 91, dated November 8, 2010, are entirely dispositive and authoritative.” 29.     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. 30.     The applicant’s appeal appears to be pending before the Court of Appeal. C.     Proceedings before the Court 31 .     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. 32 .     On 2 November 2010, following the Court of Appeal’s decision in favour of the applicant’s extradition as 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. 33.     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.” 34.     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. 35.     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. 36.     On 24 November 2010 the applicant’s lawyer informed the Court that the applicant had been extradited to the United States that 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. 37.     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. 38.     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 Contracting State 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”. 39.     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. 40.     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 2010 the 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 41 .     On 19 July 2011 the 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 a United States judge. The applicant, having received legal advice from his lawyer 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. 42 .     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. 43.     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. 44 .     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 45.     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 46.     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”) 47 .     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). 48 .     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. 49.     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. 50.     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. 51.     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). 52.     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. 53.     An arrest or detention should be validated by the District Court within forty-eight hours (Article 495 §§ 2 and 3). 54.     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 of 3   December 2009 on jurisdiction in criminal matters with foreign authorities) 55.     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”) 56.     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 the State of New York 57.     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. (...)” 58.     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 declaring the 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”. 59.     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”. 60.     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 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 61.     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 2 and 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 62.     The Government submitted that the applicant could not claim to be a victim of a violation of the Convention 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. 63.     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). 64.     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. 65.     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 66.     The applicant maintained that, on the basis of the documents submitted by the United States authorities, there existed the risk that a 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). 67.     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 applied in New York since 1977. 68.     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 69 .     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