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
Full & Egal Universal Law Academy