Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23572/94

by Carmine ESPOSITO

against Italy

The European Commission of Human Rights (First Chamber) sitting

in private on 18 October 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

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 29 November 1993

by Carmine ESPOSITO against Italy and registered on 3 March 1994 under

file No. 23572/94;

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, an Italian national born in 1956, is currently

detained in Nuoro.

Before the Commission, he is represented by Mr. Filippo Trofino,

a lawyer practising in Naples.

The facts of the case, as they have been submitted by the

applicant, may be summarised as follows.

By judgment of 29 April 1986, which became final on 6 April 1987,

the Naples Court of Appeal convicted the applicant in absentia for

belonging to a mafia-type organisation and other crimes, and sentenced

him to eight years' imprisonment.

On 12 March 1987 the applicant was arrested in Chicago, where he

was residing at that time, and detained on remand pursuant to an

extradition request filed with the US authorities by the Italian

Ministry of Justice, in pursuance of nine arrest warrants issued on

31 January 1984, 2 February 1984 (three warrants), 3 February 1984,

20 March 1984, 29 March 1984 and 13 June 1985 (two warrants)

respectively by the Public Prosecutor's Offices of Naples and Santa

Maria Capua Vetere in connection with certain criminal proceedings

pending against the applicant mainly on charges of murder. The USA are

bound to Italy by a Convention on Extradition of 13 October 1983.

After two hearings on 22 and 23 April 1987, the US judge

authorised the extradition on 5 June 1987; the applicant then applied

for a writ of habeas corpus. On 12 June 1987, the US Magistrate ordered

that the applicant be extradited to Italy.

On 20 April 1988 and 20 September 1988, the Naples Court of

Appeal and the Santa Maria Capua Vetere Court respectively issued two

orders for the applicant's release from prison ("ordine di

scarcerazione"), the relevant time-limits for his detention on remand

in connection with the pending criminal proceedings having expired.

On 26 September 1988, the applicant applied to the US court of

his place of detention in order to be released from prison on the basis

of the said two Italian orders for release; his request was dismissed

by decision of 5 October 1988.

Meanwhile, on 4 October 1988, an order for imprisonment ("ordine

di carcerazione") was issued by the Public Prosecutor's Office of

Naples in pursuance of the applicant's enforceable conviction by the

Naples Court of Appeal.

By note of 6 October 1988, the Italian Ministry of Justice

informed the US authorities thereof.

On 20 October 1988 the Italian authorities made a second

extradition request against the applicant in connection with the

latter's conviction by the Naples Court of Appeal.

On the 21 October 1988, the US Government started deportation

proceedings against the applicant.

Meanwhile, the Italian authorities withdrew the first extradition

request against the applicant.

On 14 November 1988, the Italian Public Prosecutor appeared

before the US Assistant Attorney in order to support the second

extradition request. Nevertheless, the extradition proceedings were not

pursued.

After a hearing on 26 October 1989, on 14 June 1990 the US

Immigration Magistrate ordered that the applicant be deported to Italy.

On 18 August 1991, in execution of the deportation order the

applicant was transferred to Milan, where he was taken into police

custody and subsequently imprisoned in Busto Arsizio in execution of

his 1986 conviction.

While in prison, the applicant was notified of an order for

release from prison as from 8 January 1998. The calculation of the

length of the sentence to be served had taken into account only the

detention suffered in the USA from 12 March 1987 up to 21 October 1988,

date when the US authorities had started the deportation proceedings

against the applicant: only one year, seven months and nine days had

therefore been deducted from the eight year sentence.

The applicant applied ("incidente di esecuzione") to the Naples

Court of Appeal against the order for release, contending that the

whole period of detention in the USA (namely from 12 March 1987 up to

18 August 1991) should have been deducted from the eight year sentence

pursuant to his conviction by the Naples Court of Appeal, and therefore

his release date had to be adjusted accordingly.

In the course of these proceedings, the applicant requested that

the file concerning the extradition proceedings be obtained from the

Ministry of Justice. The Court of Appeal rejected this request on the

ground that the documents already in its possession were sufficient.

By decision of 16 September 1992, the Court of Appeal rejected

the applicant's appeal. It held, inter alia, that after 21 October 1988

the applicant had been kept in detention with a view to deportation and

not to extradition.

On 30 October 1992, the applicant lodged an appeal on points of

law against this decision, contending that his detention after

21 October 1988 had still been in pursuance of the extradition requests

filed by the Italian authorities.

On 7 April 1993, the Public Prosecutor supported the applicant's

request that the Court of Appeal decision be quashed.

By judgment of 2 June 1993, filed in the Registry on

30 September 1993, the Court of Cassation dismissed the appeal on

points of law as being manifestly ill-founded.

COMPLAINTS

1. The applicant complains that a large part of his detention in the

USA awaiting extradition, namely from 21 October 1988 to

18 August 1991, was not taken into account as part of the eight year

sentence to be served in Italy pursuant to his original conviction. He

further alleges a violation of Article 14 of the Convention, in that

other detainees have benefited from the deduction from their sentence

of the whole period of detention they had suffered awaiting

extradition.

2. In so far as part of the time he spent in prison in the USA has

not been deducted from his sentence, the applicant further maintains

that he is suffering detention in Italy which is not legally justified,

in breach of Article 5 of the Convention.

3. The applicant also complains under Article 6 of the Convention

about the length and fairness of the proceedings before the Naples

Court of Appeal and the Court of Cassation concerning the calculation

of his sentence.

In particular, as to the length, the applicant complains that the

proceedings lasted 21 months, despite the fact that his liberty was at

stake.

As to the fairness, he maintains that his right of defence was

hindered in that the Court of Appeal rejected his request that the file

concerning the extradition proceedings and kept by the Ministry of

Justice be joined to the file in the appeal proceedings.

4. The applicant finally invokes Articles 3 and 7 of the Convention.

THE LAW

1. The applicant complains that a large part of his detention in the

USA was not deducted from the eight year sentence he is currently

serving in Italy. He also maintains that other detainees have benefited

from the deduction of the whole period of detention they had suffered

awaiting extradition from their sentence, and therefore alleges a

violation of Article 14 (Art. 14) of the Convention in this respect.

The Commission first recalls that the Convention does not

guarantee the right for time spent in detention pending extradition to

be counted as part of the sentence (cf. No. 10854/84, Dec. 8.7.85,

D.R. 43, pp. 177 ss.). The Commission further recalls its constant

case-law to the effect that Article 14 (Art. 14) of the Convention only

prohibits discrimination in the enjoyment of the rights and freedoms

guaranteed by the Convention (cf., for example, No. 11278/84,

Dec. 1.7.85, D.R. 43, p. 216).

It follows that these complaints are incompatible ratione

materiae with the provisions of the Convention within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.

2. The applicant further argues that the failure to count three

years of his detention in the USA as part of the eight year sentence

he is serving in Italy rendered his detention in Italy after he had

served five years illegal, in breach of Article 5 (Art. 5) of the

Convention.

Article 5 (Art. 5) of the Convention, in so far as relevant,

provides 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:

a. the lawful detention of a person following conviction

by a competent court (...).

The Commission observes that by judgment of the Naples Court of

Appeal dated 29 April 1986, the applicant had been convicted in

absentia on charges of belonging to a mafia-type organization, and

sentenced to eight years' imprisonment. Following an order for

deportation issued by the US Authorities, on 21 August 1991 the

applicant was conveyed to Milan, where he was taken into police custody

and imprisoned in pursuance of his original conviction. He is currently

serving the eight year sentence.

Therefore the applicant's detention in Italy follows his

conviction by the Naples Court of Appeal and is thus justified under

Article 5 para. 1 (a) (Art. 5-1-a) (cf. Eur Court H.R., Wemhoff

judgment of 27 June 1968, Series A no.7, p. 23, para. 9; No. 20253/92,

G.P. v. Italy, Dec. 6.4.95, unpublished). It follows that this

complaint is manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

3. The applicant complains under Article 6 (Art. 6) of the

Convention about the length and fairness of the proceedings concerning

the calculation of his sentence in respect of the detention already

suffered awaiting extradition. He complains in particular of the fact

that the Court of Appeal rejected his request that the file concerning

his extradition from the USA, kept by the Ministry of Justice, be

enclosed to the file in the appeal proceedings.

Article 6 (Art. 6) of the Convention, in so far as relevant,

reads as follows:

"In the determination of his civil rights and obligations

or of any criminal charge against him, everyone is entitled

to a fair (...) hearing within a reasonable time by an

(...) impartial tribunal established by law (...)."

The Commission recalls that Article 6 (Art. 6) of the Convention

is only applicable where the case concerns the determination of civil

rights and obligations or of a criminal charge.

It is true that according to the Convention organs' constant

case-law the latter concept comprises the determination of the sentence

by the sentencing judge (cf., inter alia, No. 18484/91, Dec. 30.6.93,

unpublished; Eur. Court H.R., Eckle judgment of 28 June 1989,

Series A no. 51, p. 35, para. 77). In the present case, however, the

applicant did not challenge the sentence as such, but only the question

of how many years of detention pending extradition should have been

deducted from the sentence already inflicted on him.

Neither the applicant's civil rights and obligations, nor any

criminal charges against him were thus at stake, but only the means of

execution of a sentence already inflicted; Article 6 is therefore not

applicable in the present case (cf. No. 7034/75, Dec. 12.10.77,

D.R. 10, p. 146; No. 11077/84, Dec. 13.10.86, D.R. 49, p. 170;

No. 21169/92, Dec. 31.8.94, unpublished).

It follows that this complaint is incompatible ratione materiae

with the provisions of the Convention within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

4. As regards the applicant's complaints under Articles 3 and 7

(Art. 3, 7) of the Convention, the Commission has examined these

complaints as they have been submitted by the applicant. It finds

however that they fail to disclose any violation of the provisions of

the Convention invoked by him.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

Menu

ESPOSITO v. ITALY

ESPOSITO v. ITALY

LEXI