Published on 2 June 2025
FIRST SECTION
Application no. 4130/23
Aris KACI
against Italy
lodged on 17 January 2023
communicated on 13 May 2025
SUBJECT MATTER OF THE CASE
The application concerns the ongoing detention of the applicant in Italy. Sentenced to imprisonment in absentia by the Rome Assize Court of Appeal in January 2002, the applicant was at large until August 2016, when he was apprehended and arrested in Albania by virtue of a European Arrest Warrant (EAW) issued by Italy in 2015, which was extended as an extradition request to countries not members of the European Union (EU).
Following the applicant’s arrest, Italy’s Ministry of Justice, pursuant to Article 2 § 2 of the Additional Agreement between Italy and Albania of 23 April 2002 to the Strasbourg Convention on the Transfer of Sentenced Persons of 21 March 1983 (“the Convention of 1983”), requested Albania to keep the applicant in custody and to enforce the prison sentence in Albania (the “administering State”), the applicant’s home country.
Referring to the Additional Agreement and the Convention of 1983, the Saranda District Court (Albania) recognised the Italian judgment as enforceable in Albania. However, applying Article 68/b of the Albanian Criminal Code, it declared the extinction of the sentence because of the expiry of the statutory limitation and released the applicant. The Albanian authorities officially informed the office of the Prosecutor of the Italian Republic but the Court of Appeal in Rome did not proceed to give the Albanian judgment executive force (exequatur). The EAW against the applicant therefore remained in force.
In November 2020 the applicant was arrested in Greece and, in February 2021, transferred to Italy, where he remains in detention.
Invoking the Convention of 1983, the applicant instituted proceedings at national level to be released. His request as well as his appeals were dismissed at all levels of jurisdictions. In particular, the Rome Assize Court of Appeal found that the Convention of 1983 was not applicable for two reasons: i) for a procedural vice, as in the present case the Italian authorities had failed to request, as required by Article 5, section 1, of Law no. 257 of 1989, a prior favourable decision by the competent Court of Appeal to ascertain whether the sentence could be executed in the “administering State”; and ii) recalling the principle of interpretation in “good faith” in international law, it found that it was evident that if a sentence was not enforceable in the convict’s home country, there would be no sense in activating the conventional procedure in question. This judgment was upheld by the Court of Cassation on 21 September 2022.
The applicant complains under Article 5 § 1 of the Convention that he is currently being detained in Italy without a legal basis considering that Italy requested Albania to enforce his prison sentence, de facto renouncing to exercise its jurisdiction, and he was set free according to Albanian law. He claims to have a legitimate expectation to have served his sentence in view of to the Albanian judgment and the Italian State’s lack of opposition to that judgment at the time. He further complains under Article 5 § 5 of the Convention about the absence of compensation for his unlawful detention.
QUESTIONS TO THE PARTIES
1. Has there been a breach of the applicant’s rights under Article 5 § 1 of the Convention? In particular:
(a) Is the applicant’s continued detention in Italy, after the issuing of the Albanian judgment ordering his release, “in accordance with a procedure prescribed by law” within the meaning of Article 5 § 1 of the Convention (see Saadi v. the United Kingdom [GC], no. 13229/03, § 67, ECHR 2008)?
(b) Can the applicant’s current detention be considered arbitrary in the light of the period of detention served in Albania and the Albanian judgment which declared the sentence time barred (see a contrario, Galeano Peñas v. Spain, no. 48784/20, §§ 71-75, 31 May 2022)?
(c) Did the Italian authorities commit a procedural omission or error when they did not proceed to give executive force (exequatur) to the Albanian judgment, thereby leaving the European Arrest Warrant valid and allowing for the applicant’s current detention?
2. Did the applicant have an effective and enforceable right to compensation for his detention, as required by Article 5 § 5 of the Convention (see, Nolan and K. v. Russia, no. 2512/04, §§ 102-05, 12 February 2009)?