SECOND SECTION
DECISION
Application no. 11200/15
Massimo ROMAGNOLI
against Montenegro
The European Court of Human Rights (Second Section), sitting on 4 September 2018 as a Committee composed of:
Ledi Bianku, President,
Jon Fridrik Kjølbro,
Ivana Jelić, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 23 February 2015,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Massimo Romagnoli, is an Italian national, who was born in 1971 and lives in Glifada (Greece). He was represented before the Court by Mr F. Jovović, a lawyer practising in Podgorica (Montenegro).
2. The Montenegrin Government (“the Government”) were represented by their Agent, Mrs V. Pavličić.
3. Notified under Article 36 § 1 of the Convention and Rule 44 § 1 (a) of the Rules of Court of their right to intervene in the present case, the Italian Government expressed no wish to do so.
A. The circumstances of the case
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. On 4 December 2014 an indictment (optužni predlog) was issued against the applicant by the US District Court, Southern District of New York, for conspiracy to kill officers and employees of the USA, and conspiracy to provide material support or resources to a foreign terrorist organisation.
6. On 16 December 2014 the applicant was arrested in Montenegro pursuant to an international arrest warrant (međunarodna potjenica).
7. On 17 December 2014, during a hearing before an investigating judge of the High Court (Viši sud) in Podgorica, the applicant stated that he wished to cooperate with the US authorities in order to prove his innocence, and that he be extradited in summary proceedings (u skraćenom postupku). The same day an extradition detention was ordered, starting as of 16 December 2014.
8. On 22 December 2014 the US Justice Department sought the applicant’s extradition to the USA. It also submitted the relevant parts of the US legislation.
9. On 20 January 2015 the High Court issued a decision for extradition in summary proceedings (dozvoljava se izručenje u skraćenom postupku). The decision specified that for the first criminal offence that the applicant was indicted for the US legislation provided for a prison sentence of indefinite duration or a life-sentence. For the second one it provided for a prison sentence of up to 15 years, unless the criminal offence resulted in someone’s death, in which case the legislation provided also for a prison sentence of indefinite duration or a life-sentence.
10. On 2 February 2015 the applicant appealed. He submitted, inter alia, that his extradition to the USA would be contrary to Article 3 of the Convention in view of the sanctions he was facing there without a possibility of a conditional release.
11. On 13 February 2015 the Court of Appeal (Apelacioni sud) dismissed the applicant’s appeal relying on the International Legal Assistance in Criminal Matters Act and United Nations Convention against Transnational Organised Crime (see paragraphs 14 and 15 below). The court made no reference to the applicant’s submission related to Article 3 of the Convention and the possible irreducibility of a life-sentence he would be facing in the USA if extradited.
12. On 25 February 2015 the applicant was extradited.
13. On 23 October 2017 the applicant’s complaint under Article 3 was communicated to the respondent Government. In their observations dated 9 February 2018 the Government informed the Court that on 15 September 2016 the applicant had been sentenced to 48 months in prison in the USA, which time included the time he had spent in detention in Montenegro. On 8 September 2017 he had been released.
B. Relevant domestic law
14. Sections 11 and 12 of International Legal Assistance in Criminal Matters Act (Zakon o međunarodnoj pravnoj pomoći u krivičnim stvarima; published in the Official Gazette of Montenegro, nos. 04/08 and 36/13) specified conditions for an extradition and when extradition was not allowed. Section 29 specified extradition in summary proceedings.
C. Relevant international documents
15. Article 16 of the United Nations Convention against Transnational Organised Crime provides details in respect of extradition.
COMPLAINT
16. The applicant complained under Article 3 of the Convention in that he would be facing an irreducible life-sentence if extradited to the USA.
THE LAW
17. The applicant complained under Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
18. The Government contested the applicant’s allegations.
A. The parties’ submissions
19. The Government submitted that the application was inadmissible on various grounds. In particular, the applicant had abused the right of application as he had failed to inform the Court of what was crucial in the present case. Notably after having been extradited to the USA he had been sentenced to 48 months of prison and had been released on 8 September 2017. The Government relied on Bekauri v. Georgia (preliminary objection), no. 14102/02, § 21, 10 April 2012.
20. The applicant submitted that at the time of the submission of the application to the Court he could not have known that he would be sentenced to 48 months.
B. The Court’s assessment
21. The Court reiterates that, in accordance with Rule 47 § 7 of the Rules of Court, applicants shall keep the Court informed of all circumstances relevant to an application. It further reiterates that incomplete and therefore misleading information may also amount to abuse of the right of petition, especially if the information concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information (see Predescu v. Romania, no. 21447/03, §§ 25-26, 2 December 2008). The same applies if new, important developments have occurred during the proceedings before the Court and where, despite being expressly required to do so by Rule 47 § 7 of the Rules of Court, the applicant has failed to disclose that information to the Court, thereby preventing it from ruling on the case in full knowledge of the facts (see, for example, Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014).
22. Turning to the present case, the Court notes that in his application lodged on 23 February 2015 the applicant complained about a violation of Article 3 should he be extradited to the USA given that he was facing an allegedly irreducible life-sentence there. The application reached the Court on 26 February 2015, that is after the applicant had been extradited on 25 February 2015. On 23 October 2017 the Court communicated the applicant’s complaint to the respondent Government. In their observations submitted on 9 February 2018 the Government informed the Court that in the USA the applicant had been sentenced to 48 months in prison, which time included the time he had spent in detention in Montenegro, and that he had been released on 8 September 2017. The applicant omitted to inform the Court of these developments. In his letter of 6 April 2018, sent in response to the Government’s observations, the applicant submitted that at the time when he had lodged the application with the Court he could not have known the outcome of the criminal proceedings in the USA. However, he did not deny the information provided by the Government.
23. The Court notes that the applicant failed to provide the Court with any explanation whatsoever for his failure to disclose the information about the outcome of the criminal proceedings in the USA, notably that he had been sentenced to 48 months in prison, and that he had been released after having served less than 33 months. In the light of the new developments brought to its attention, and given the importance of the information in issue for the proper determination of the present case, the Court considers that the applicant’s conduct was contrary to the purpose of the right of individual petition, as provided for in Article 34 of the Convention (see Margaryan v. Armenia (dec.), no. 72733/10, 4 June 2013 and, mutatis mutandis, Gross, cited above, § 33). Accordingly, it is appropriate to reject the application as a whole as an abuse of the right of petition pursuant to Article 35 §§ 3 and 4 of the Convention (see, mutatis mutandis, Ćalović v. Montenegro (dec.), no. 18667/11, §§ 33-37, 11 July 2017; Pejović v. Montenegro (dec.), no. 22668/08, §§ 28-33, 29 September 2015; Milošević v. Serbia (dec.), no. 20037/07, § 43, 5 July 2011; and Tatalović and Ɖekić v. Serbia (dec.), no. 15433/07, 29 May 2012).
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 27 September 2018.
Hasan BakırcıLedi Bianku
RegistrarPresident
Full & Egal Universal Law Academy