CEDH · CASELAW;CLIN;ENG — 26 juin 2012

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San Marino and Italy - 44853/10 Judgment 26.6.2012 [Section III] Article 5 Article 5-1 Lawful arrest or detention Procedure prescribed by law Article 5-1-f Extradition Lack of a sufficiently accessible, precise and foreseeable procedure under San Marino law to avoid arbitrary detention pending extradition: violation   Facts – In August 2009 the Italian authorities sought the applicant’s extradition from San Marino, inter alia , on suspicion of money laundering. The applicant was arrested and placed in preventive detention on the basis of the bilateral Convention on Friendship and Good Neighbourhood between Italy and San Marino of 1939. The Italian Embassy subsequently informed the San Marino authorities that they would follow the procedure laid down by the European Convention on Extradition of 1957, which San Marino had also ratified. The applicant sought to have the arrest warrant set aside on the grounds that there had been no urgent reasons, as required by the 1939 Convention, to justify his preventive detention. The appeal judge dismissed that complaint, finding that the 1957 Convention prevailed over the 1939 Convention under which the extradition process had started. In September 2009 the applicant requested his release because the thirty days stipulated by the 1939 Convention had expired, but his request was rejected, again on the grounds that it was the 1957 Convention which prevailed. An order for the applicant’s extradition was made in September 2009 and he was later extradited to and detained in Italy before being released in February 2010. Law – Article 5 § 1 (f) (a)   Complaint against San Marino – The applicant’s detention amounted to detention with a view to extradition and therefore fell under Article 5 §   1   (f). Both the 1939 Convention and the 1957 Convention were applied at different stages of the extradition procedure, without any clear indication as to which applied to the applicant’s case, that question being left to the discretion of the authorities and to the subsequent, first-time, interpretation of the domestic courts. The uncertainty as to which of the two conventions was applicable made it difficult to accept that the legal system provided a precise and foreseeable application of the law. Moreover, the 1957 Convention on which the Government had relied referred back to domestic law in relation to the rules regulating the extradition procedure and did not itself lay down a comprehensive procedure offering safeguards against arbitrariness in the requested State. The San Marino legislation did not provide such a procedure either. In sum, the domestic law did not lay down a procedure that was sufficiently accessible, precise and foreseeable in its application to avoid the risk of arbitrary detention pending extradition. Accordingly, the applicant’s detention as a result of the extradition order had not complied with a procedure prescribed by law. Conclusion : violation (unanimously). (b)   Complaints against Italy (i)   Detention in Italy : In so far as the applicant had complained that his detention following his transfer to the Italian authorities was unlawful, the Court noted that his detention in Italy had its basis in the order of an Italian court and had the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence (Article 5 §   1   (c)). Conclusion : inadmissible (manifestly ill-founded). (ii)   Detention in San Marino : The Court reiterated that an act instigated by a requesting country on the basis of its own domestic law and followed-up by the requested country in response to its treaty obligations could be attributed to the requesting country. It followed that, as the requesting country, Italy had been under an obligation to ensure that the arrest warrant and extradition request were valid as a matter of Italian law. However, the unlawfulness in the present case had arisen not from a failure to comply with Italian domestic legal requirements, but from the (lack of) quality of San Marino law on the matter. Consequently Italy’s responsibility could not be engaged. Conclusion : inadmissible (incompatible ratione materiae ). Article 41: No claim made in respect of damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes