Excessive length of detention in Italy with a view to extradition to Greece
JUDGMENT
Gallardo Sanchez v. Italy 24.03.2015 (no. 11620/07)
SUMMARY:
Extradition procedure to Greece for the purposes of prosecution in the requesting State. Infringement of Article 5 § 1 (f) of the ECHR).
PROVISION:
Article 5
PRINCIPAL FACTS
The applicant, Manuel Rogelio Gallardo Sanchez, is a Venezuelan national who was born in 1965.
On 19 April 2005 Mr Gallardo Sanchez was placed in detention, with a view to his extradition, by the Rome police in execution of an arrest warrant issued by the Greek authorities. On 22 April 2005 the Aquila Court of Appeal confirmed the arrest and ordered Mr Gallardo Sanchez to be kept in detention. The Ministry of Justice, in turn, requested that he be kept in detention. At a hearing on 27 April 2005 Mr Gallardo Sanchez stated that he did not consent to his extradition.
On 21 June 2005 the public prosecutor’s office asked the Court of Appeal to grant the request for extradition that had been submitted by the Greek authorities. The hearing initially listed for 15 December 2005 was adjourned to 12 January 2006. The Court of Appeal then issued an opinion in favour of Mr Gallardo Sanchez’s extradition, which it filed on 30 January 2006.
On 3 March 2006 Mr Gallardo Sanchez appealed to the Court of Cassation, which dismissed his appeal. In the meantime, between June and September 2005, Mr Gallardo Sanchez lodged three applications for release with the Court of Appeal, which rejected his applications on the grounds that there was still a risk that he might abscond and that the State had to comply with its international undertakings.
On 9 October 2006 the Minister for Justice signed the extradition order and on 26 October 2006 Mr Gallardo Sanchez was extradited.
THE DECISION OF THE COURT
Article 5 § 1 (f)
The Court observed at the outset that Mr Gallardo Sanchez’s detention with a view to his extradition had pursued the aim for which it had been imposed and been in conformity with domestic law.
The Court reiterated, however, that deprivation of liberty could be lawful in terms of domestic law but still arbitrary and thus contrary to the Convention. Deprivation of liberty under Article 5 (right to liberty and security) was justified only for as long as extradition proceedings were being conducted and the detention ceased to be justified if the proceedings were not conducted with due diligence.
It was therefore not the Court’s task in the present case to examine whether the length of the extradition proceedings was reasonable overall, but to establish whether the length of the detention had exceeded the reasonable time necessary to achieve the aim pursued. Accordingly, if there had been periods of inactivity on the part of the authorities or a lack of diligence, the detention would cease to be justified.
In order to specify the level of diligence required for each, the Court distinguished between two forms of extradition: extradition for the purposes of enforcing a sentence and extradition enabling the requesting State to try the person concerned. In the latter case, as criminal proceedings were pending, the person subject to extradition was to be presumed innocent. The ability of that person to exercise their defence rights for the purposes of proving their innocence was considerably limited, or even non-existent. The authorities of the requested State were debarred from undertaking any examination of the merits of the case. For all those reasons the requested State had a duty to act with special diligence.
The Court noted that in the present case the detention with a view to extradition had lasted approximately one and a half years. It observed that substantial delays had occurred at the different stages of the extradition proceedings: the first hearing before the Court of Appeal had been listed for 15 December 2005, that is, six months after the request for extradition had been sent by the Greek authorities to the Court of Appeal and eight months after Mr Gallardo Sanchez had been placed in detention with a view to extradition.
The Court then observed that the case had not been complex, since the Court of Appeal’s task had consisted merely of verifying whether the extradition request had been submitted in accordance with the procedures laid down in the European Convention on Extradition, satisfying itself that the principle of the right not to be tried or punished twice and the double criminality principle had been complied with and that the criminal proceedings were not motivated by discriminatory or political reasons.
The Court also stressed the fact that the Court of Cassation, after ruling within two months on Mr Gallardo Sanchez’s appeal, had taken more than four months to file a very brief judgment in which it confined itself to stating that the extradition request had been sent by the requesting State in accordance with the proper procedure and that the Court of Cassation did not itself have jurisdiction to call into question the charges filed against Mr Gallardo Sanchez by the Greek authorities. The Government had not produced any evidence capable of justifying that delay.
The Court acknowledged that Mr Gallardo Sanchez’s objection to his extradition had justified an extension of his detention, but considered that this could not relieve the State of responsibility for the unjustified delays during the judicial phase of the proceedings.
Having regard to the nature of the extradition proceedings and the unjustified delay by the Italian courts, the Court concluded that Mr Gallardo Sanchez’s detention had not been “lawful” within the meaning of Article 5 § 1 (f) of the Convention and that there had therefore been a violation of that provision.
Just satisfaction (Article 41)
The applicant did not submit a request for just satisfaction. Accordingly, the Court considered that there was no call to award him any sum under this head(echrcaselaw.com editing).
