FOURTH SECTION

Application no. 58555/10 by Almir RRAPO against Albania lodged on 11 October 2010

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Almir Rrapo, is an Albanian and American national who was born in 1983 . At present he is detained in an unknown prison in the United States of America following his extradition from Albania . He is represented before the Court by Mr A. Visha, a lawyer practising in Tirana.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. The applicant ’ s arrest and detention

On 2 July 2010 the applicant applied for a renewal of his American passport at the Embassy of the United States of America (“the US Embassy”) in Tirana. On the same day, around 2 p.m., he was arrested by the Albanian police, acting on a request by the American authorities, within the compound of the US Embassy.

On 4 July 2010 the Tirana District Court (“the District Court”) authorised the applicant ’ s detention for a period of forty days. The applicant and the prosecutor appealed.

On 22 July 2010 the lawfulness of the applicant ’ s detention was upheld by the Tirana Court of Appeal (“the Court of Appeal”), which extended the period of the applicant ’ s detention to sixty days.

On 31 August 2010 the applicant challenged his continued detention.

On 2 September 2010 the District Court rejected the applicant ’ s action and extended his detention until the lapse of the three-month period prescribed by Article 493 § 4 of the Code of Criminal Procedure (“CCP”).

On 17 September 2010 the Court of Appeal, following the applicant ’ s appeal, upheld his detention.

On an unspecified date at the end of September 2010 the applicant challenged his continued detention.

On 1 October 2010 the District Court dismissed his action and prolonged the applicant ’ s detention by one month.

On 28 October 2010 the Court of Appeal, following the applicant ’ s appeal, upheld his detention.

On an unspecified date in November 2010 the applicant challenged his continued detention.

At a hearing on 12 November 2010, the District Court dismissed the applicant ’ s action. According to the minutes of the hearing, the applicant ’ s representative provided the District Court with a copy of this Court ’ s letters, indicating to the Government of Albania, under Rule 39 of the Rules of Court, that the applicant should not be extradited to the United States of America (see below). The prosecutor stated that he had not been informed of this Court ’ s Rule 39 indications.

To date, no copy of the District Court ’ s decision of 12 November 2010 has been submitted to the Court.

2. The extradition proceedings

On 30 August 2010 the US Embassy addressed a diplomatic note to the Albanian Ministry of Foreign Affairs requesting the applicant ’ s extradition. According to the diplomatic note, the applicant had been charged, along with other co-defendants, with the following eight criminal offences: 1) membership of an organised racketeering enterprise engaged in murder, kidnapping, drug distribution, arson, robbery, extortion and the interstate transportation of stolen goods; 2) conspiracy to engage in a racketeering enterprise; 3) conspiracy to distribute and possession with intent to distribute 100 kilograms and more of marijuana; 4) conspiracy to commit robbery; 5) the possession, use, carrying and brandishing of firearms, including a firearm equipped with a silencer, during, in relation to, and in furtherance of the narcotics offence; 6) kidnapping in aid of racketeering; 7) the possession, use, carrying and brandishing of firearms during, in relation to, and in furtherance of the kidnapping charged in count six; and 8) the murder of E.S in aid of racketeering.

The diplomatic note stated that five charges carried a maximum sentence of life imprisonment (nos. 1-2 and 5-7); one charge carried a maximum penalty of forty years ’ imprisonment (no. 3); one charge carried a maximum sentence of twenty years ’ imprisonment (no. 4); and another charge carried a penalty of either death or life imprisonment (no. 8).

The diplomatic note further stated that an arrest warrant had been issued against the applicant on 19 August 2010 by the District Court for the Southern District of New York.

On 31 August 2010 the prosecutor ’ s office requested the District Court to authorise the applicant ’ s extradition to the United States of America .

On 30 September 2010 the District Court granted the prosecutor ’ s request. The District Court rejected the applicant ’ s objection that the American authorities had not furnished any assurances against the imposition of the death penalty on the grounds that such assurance was not required by law.

On 27 October 2010 the US Embassy sent a diplomatic note to the Albanian Ministry of Foreign Affairs, which, in so far as relevant, read as follows:

“The United States understands that Rrapo has been ruled extraditable and that decision has been appealed to an Albanian appellate court and a complaint has been lodged before the European Court of Human Rights.

The United States requests that, as these proceedings continue, should the Government of Albania require additional information regarding possible future proceedings in the United States , such information should be requested via diplomatic note and should provide a reasonable timeframe for response, as well as instruction on the presentation of such information.

The United States will respond to any such request within a reasonable time period.”

On 1 November 2010 the Tirana Court of Appeal, following the applicant ’ s appeal, found in favour of the applicant ’ s extradition. It rejected the applicant ’ s argument that the American authorities had failed to give assurances against the imposition of capital punishment as unfounded.

On 1 November 2010 the Minister of Justice ordered that the applicant ’ s extradition to the United States should be effected by 16 November 2010.

On an unspecified date in November 2010 the Minister of Justice sent a note verbale to the US Embassy asking whether the applicant would be subjected to capital punishment for the criminal offences with which he had been charged.

On 8 November 2010 the US Embassy sent a diplomatic note to the Albanian Ministry of Foreign Affairs, which, in so far as relevant, read as follows:

“The United States Department of Justice has authorised and directed the United States Attorney for the Southern District of New York not to seek the death penalty against Almir Rrapo. As a result, the Government of the United States hereby assures the Government of Albania that should Mr Rrapo be extradited to stand trial on the charges for which his extradition has been granted, the death penalty will not be sought or imposed against Almir Rrapo upon his extradition to the United States .”

On 9 November 2010 the applicant lodged an appeal with the Supreme Court. He argued inter alia that the American authorities had given no assurances about the non-imposition of the death penalty in breach of Article 21 of the Constitution.

On 9 November 2010 the applicant lodged a further request with the Supreme Court seeking the suspension of his extradition, bringing to that court ’ s attention this Court ’ s indication under Rule 39 of the Rules of Court.

On 15 November 2010 the Minister of Justice extended to 1 December 2010 the time-limit within which the applicant ’ s extradition to the United States of America could take place.

On 24 November 2010 the applicant was extradited to the United States of America .

On 26 November 2010 the applicant informed this Court that on that day the Supreme Court had quashed both lower courts ’ decisions and had decided to remit the case to the District Court for rehearing. To date, the Supreme Court ’ s decision has not yet been submitted to the Court.

3. Proceedings before the Court

On 12 October 2010, while the extradition proceedings were pending before the Court of Appeal, the President of the Fourth Section of the Court to which the case had been allocated decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the Government of Albania, under Rule 39 of the Rules of Court, that the applicant should not be extradited to the United States of America. This measure was to remain in force “until the lapse of ten days following notification of the Court of Appeal ’ s decision to the Court.” The parties were informed of the decision on the same day.

On 2 November 2010, following the Court of Appeal ’ s decision in favour of the applicant ’ s extradition, the President of the Fourth Section of the Court decided to prolong the interim measure initially indicated to the respondent Government under Rule 39 of the Rules of Court, “until the lapse of fifteen days following notification of the Supreme Court ’ s decision to the Court.” The parties were informed of this decision on the same day.

On 4 November 2010 the Registrar of the Fourth Section wrote to the General State Advocate in inter alia the following terms.

“ Under the terms of the interim measure, as decided and prolonged by the President of the Fourth Section, the applicant should not be extradited to the United States of America until fifteen days have elapsed from the date of the notification of the Supreme Court ’ s decision to this Court. This period is intended to allow the Court time to reflect further on the matter in the light of the domestic court ’ s findings .

In this connection, I can only repeat what I said at our meeting, namely that the failure of a Contracting State to comply with a Rule 39 measure may entail a breach of Article 34 of the Convention, which is binding upon your Government as a signatory thereto (see Grori v. Albania , no. 25336/04, §§ 172-195, 7 July 2009). You may wish to stress this point in your discussions with the competent authorities .”

On 10 November 2010 the Minister of Justice informed the General Prosecutor ’ s Office and the National Interpol Office that the applicant should not be extradited to the United States of America in compliance with the Court ’ s Rule 39 measure.

On 15 November 2010 the President of the Fourth Section of the Court decided that, even having regard to the diplomatic assurances given by the US Embassy against the imposition of the death penalty, the Rule 39 indication would remain in force and continue to apply. The parties were informed of the decision on 18 November 2010.

On 24 November 2010 the applicant ’ s legal representative informed the Court that the applicant had been extradited to the United States of America on the morning of the same day, without any prior notice either to the applicant or his representative. By letter of the same day the Government were invited to confirm this information.

On 25 November 2010 the Government confirmed to the Registrar of the Fourth Section of the Court that the applicant had been extradited from Albania on 24 November 2010.

On 25 November 2010 the Registrar of the Court sent the following letter to the Government:

“ The President of the Court ... has instructed me to express on his behalf his profound regret at the decision taken by your authorities to extradite Mr Almir Rrapo to the United States of America in flagrant disrespect of the Court ’ s interim measure adopted under Rule 39 of the Rules of Court.

The President has noted in this connection that on 3 November 2010 your authorities were reminded in clear terms by the Registrar of the Fourth Section that the Rule 39 measure, first applied on 12 October 2010, continued to remain in force. Your Government ’ s attention was drawn to the fact that the failure of a Contracting State to comply with a Rule 39 measure may entail a breach of Article 34 of the Convention. Furthermore, in the Court ’ s most recent letter of 18 November 2010, your Government were informed that the President of the Fourth Section had decided to continue to apply the interim measure. N evertheless, your Government extradited the applicant to the United States of America on 24 November 2010.

The President has instructed me to request your Government to inform the Court of the circumstances in which the extradition was effected and of the reasons why the Rule 39 measure was not complied with . Your Government should submit copies of any relevant documentation.

The President is deeply disturbed at this development and is particularly concerned about its implications for the authority of the Court and the unfortunate message which it sends both to other Contracting States faced with a Rule 39 measure and to applicants and potential applicants liable to extradition or expulsion to countries where they may be exposed to the risk of violation of their rights under Articles 2 and 3 of the Convention. As an indication of the seriousness with which he views this turn of events, the President has asked that the Chairman of the Committee of Ministers, the President of the Parliamentary Assembly, the Commissioner for Human Rights and the Secretary General of the Council of Europe be informed immediately ”.

In a reply dated 30 November 2010 the Government stated that the applicant ’ s extradition was prompted by the assurances given by the US Embassy that the death penalty would neither be sought nor imposed. The letter further indicated that as the applicant ’ s detention would expire on 1 December 2010 and, upon release, his risk of absconding was imminent, the Albanian authorities proceeded with his extradition on 24 November 2010 .

B. Relevant d omestic and international law and practice

1. Constitution of Albania

The Albanian Constitution, in its relevant parts, provides as follows .

Article 4

“1. The law constitutes the basis and the limits of the activity of the State.

2. The Constitution is the supreme law in the Republic of Albania .

3. The provisions of the Constitution are directly applicable, save as otherwise provided by the Constitution.”

Article 5

“The Republic of Albania applies international law that is binding upon it .”

Article 17

“1. The restriction of the rights and freedoms provided for in this Constitution may be laid down only by law in the public interest or for the protection of the rights of others. A restriction shall be proportionate to the situation that has dictated it.

2. These restrictions may not infringe the essence of the rights and freedoms and in no case should exceed the restrictions provided for in the European Convention on Human Rights.”

Article 21

“The life of a person is protected by law.”

Article 116

“The normative acts that apply in the Republic of Albania are:

a) the Constitution;

b) ratified international agreements;

c) laws;

ç) normative acts of the Council of Ministers.”

2. Albanian Code of Criminal Procedure (“CCP”)

Articles 232–239 provide for the imposition of the following coercive restraint measures: a ban on leaving the territory of the country (Article 233); an obligation to report to the judicial police (Article 234); a ban and obligation on staying at a designated place (Article 235); bail (Article 236); house arrest (Article 237); detention on remand (Article 238); and detention in a psychiatric institution (Article 239).

Articles 488 – 503 regulate the extradition procedure to a foreign country. According to Article 489 the extradition request should be addressed to the Ministry of Justice and be accompanied by supporting documents. The extradition request should include inter alia the applicable foreign legal provisions, stating whether the foreign law provides for the imposition of the death penalty concerning the criminal offence for which extradition is sought.

The Ministry of Justice forwards the request to the district prosecutor who, within three months from the submission of the extradition request by the requesting State, lodges an application with the District Court on the basis of Article 492.

Article 493 provides for the imposition of a restraint order against the person to be extradited to avoid his escape. A restraint order is imposed in accordance with the general provisions on restraint orders and shall be revoked within three months from its execution if the proceedings before the court are still pending. The period may be extended by one month at the request of the prosecutor (Article 493 §§ 2 and 4).

In accordance with Article 494, the District Court may impose a provisional restraint order at the request of the prosecutor in the absence of an extradition request. Such a restraint order may be imposed in the event that: a) the requesting State has issued an order on the deprivation of liberty or a sentence of imprisonment against the person concerned, provided that the requesting State intends to submit an extradition request thereafter; b) the requesting State has submitted detailed information about the criminal offence and provided sufficient elements for the identification of the person; c) there is a risk of absconding. A restraint order shall be revoked if, within eighteen days and, in any event, within a maximum period of forty days, no extradition request is deposited with the Ministry of Justice.

An arrest or detention should be validated by the District Court within forty-eight hours (Article 495 §§ 2 and 3).

The Ministry of Justice proceeds with the extradition within thirty days from the date on which the court decision becomes final. On the expiry of this time-limit, the person is released in the event that the Ministry does not proceed with the extradition (Article 499 § 1).

3. The jurisdiction in criminal matters Act (Law no. 10193 of 3 December 2009 on jurisdiction in criminal matters with foreign authorities)

Apart from the conditions provided for in the Criminal Code and the Code of Criminal Procedure, section 32 states that the extradition of a person to a foreign country is allowed, inter alia , when (d) the requesting State gives assurances that it would not impose the death penalty or, in the event of imposition of such sentence, the requesting State shall not execute it.

4. Albanian Constitutional Court ’ s case-law

By a landmark decision no. 65 of 10 December 1999 the Constitutional Court decided to abolish the death penalty in times of peace in all the provisions of the Criminal Code.

5. Treaty of Extradition between the United States of America and the Kingdom of Albania (“The Extradition Treaty”)

The bilateral Extradition Treaty between the United States of America and the then Kingdom of Albania was signed on 1 March 1933. It entered into force on 14 November 1935 and it would appear that it is currently in force. Its relevant provisions read as follows.

Article II

“Persons shall be delivered up according to the provisions of the present Treaty, who shall have been charged with or convicted of any of the following crimes of offences:

1. murder (including crimes designated by the terms parricide, poisoning, and infanticide); manslaughter when voluntary;

(...)”

Article VIII

“Under the stipulations of this Treaty, neither of the High Contracting Parties shall be bound to deliver up its own citizens, except in cases where such citizenship has been obtained after the perpetration of the crime for which extradition is sought. The State appealed to shall decide whether the person claimed is its own citizen.”

Article XI

“ ( ... )

Th e arrest of the fugitive shall be brought about in accordance with the laws of the respective countries (...).

The person provisionally arrested, shall be released, unless within two months from the date of arrest in Albania , or from the date of commitment in the United States , the formal requisition for surrender with the documentary proofs hereinafter prescribed be made as aforesaid by the diplomatic agent of the demanding Government, or, in his absence, by a consular officer thereof.”

6. Relevant Council of Europe, European Union and international texts

The relevant texts of the Council of Europe, the European Union and other international legal texts on the imposition and review of sentences of life imprisonment, including the obligations of Council of Europe member States when extraditing individuals to States where they may face such sentences, are set out in Kafkaris v. Cyprus [GC], no. 21906/04, §§ 68-76, 12 February 2008

COMPLAINTS

1. The applicant complains that there would be a breach of Articles 2 and 3 of the Convention as a result of his extradition to the United States of America , given the risk of the imposition of the death penalty if tried and convicted.

2. He further argues that his detention in Albania was in breach of Article 5 § 1 of the Convention.

3. Finally, the applicant complains that his extradition to the United States of America , in breach of the Court ’ s indication under Rule 39 of the Rules of Court, was contrary to Article 34 of the Convention.

QUESTIONS TO THE PARTIES

1. Did the applicant ’ s extradition to the United States of America give rise to a breach of Articles 2 of the Convention and / or Article 1 of Protocol No. 13 to the Convention? In this connection, did the domestic courts examine a risk to the applicant ’ s life as a result of the possible imposition of the death penalty upon his extradition to the United States of America ? Did the Government consider whether the terms of the diplomatic note of 8 November 2010 of the Embassy of the United States of America in Tirana were sufficient to remove any risk that the District Court for the Southern District of New York would not pronounce the death penalty of its own motion?

2. Did the applicant ’ s extradition to the United States of America give rise to a breach of Article 3 of the Convention (see Saadi v. Italy [GC], no. 37201/06, ECHR 2008 ‑ ...; Al-Saadoon and Mufdhi v. the United Kingdom , no. 61498/08, ECHR 2010 ‑ ...) ? In this connection, did the domestic courts or the Government consider the sentencing practice in the United States of America for the criminal offences with which the applicant was charged? Is there a possibility of the imposition of an irreducible life sentence in the event of the applicant ’ s conviction and, if so, would that be consistent with the requirements of Article 3 of the Convention (see Kafkaris v. Cyprus [GC], no. 21906/04, § ... , ECHR 2008 ‑ ...)? The parties are requested to provide documentary evidence of the relevant sentencing practices of the trial courts in the United States of America in like proceedings.

3. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention from 2 July to 19 August 2010? On which documents did the domestic courts rely to validate the applicant ’ s arrest of 2 July 2010? The Government are requested to submit a complete copy of the prosecution file and of the courts ’ files in respect of the applicant ’ s detention.

4 . Given that the applicant was expelled from Albania notwithstanding an interim measure issued under Rule 39 of the Rules of Court, has his right of individual application, guaranteed by Article 34 of the Convention, been breached (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § § 128-129 , ECHR 2005 ‑ I ) ? Was there an objective impediment which prevented compliance with the Court ’ s Rule 39 measure? Did the Government t a k e all reasonable steps to remove the impediment and to keep the Court informed of the situation (see Paladi v. Moldova [GC], no. 39806/05, § 92 , ECHR 2009 ‑ ...)?