CONCURRING OPINION OF JUDGE ZIEMELE

1. I agree with the Chamber’s finding that there has been a violation of Article 5 § 1 (f) with regard to the circumstances of the applicant’s detention subsequent to the extradition order of 18 September 2009. I do not, however, fully share the Chamber’s reasoning, in particular that in paragraphs 48-50 of the judgment.

2. In the first place, the core of the case can be narrowed down to a simple question regulated by the rules of the international law of treaties. In 1939 San Marino and Italy concluded a Bilateral Convention on Friendship and Good Neighbourhood, Articles 22 and 23 of which set forth the procedure to be followed for extradition requests. In 2009 San Marino ratified the 1957 European Convention on Extradition. Upon accession San Marino submitted a reservation, something that the Extradition Convention allows, in relation to Article 28 of that Convention. Article 28 sets out the general principle that: “This Convention shall, in respect of those countries to which it applies, supersede the provisions of any bilateral treaties, conventions or agreements governing extradition between any two Contracting Parties”. The Convention does not prohibit concluding other conventions if they facilitate the application of the principles of the 1957 Convention.

3. In its reservation San Marino stated that the 1939 Bilateral Convention between San Marino and Italy would continue to apply. Admittedly, this provided for more beneficial provisions to individuals subject to extradition requests. In any event, and apart from any analysis of the substance of the Bilateral Convention and the compatibility of San Marino’s reservation with the object and purpose of the 1957 Convention, the preliminary question to be answered by the domestic authorities in San Marino in this case was whether the 1939 Convention applied in relation to the applicant following San Marino’s reservation to the 1957 Convention? The 1969 Vienna Convention on the Law of Treaties contains the main rules concerning reservations to treaties and objections thereto. The main relevant rule is set forth in Article 21, which provides: “When a State objecting to a reservation has not opposed the entry into force of the treaty between itself and the reserving State, the provisions to which the reservation relates do not apply as between the two States to the extent of the reservation”. Recently the International Law Commission adopted a Guide to Practice on Reservations to Treaties , in which the following definition is provided:

“‘Objection’ means a unilateral statement, however phrased or named, made by a State or an international organization in response to a reservation formulated by another State or international organization, whereby the former State or organization purports to preclude the reservation from having its intended effects or otherwise opposes the reservation (see Yearbook of the International Law Commission , 2011, vol. II, Part Two).”

It is important to know whether Italy has formally objected to San Marino’s reservation. It appears from the information available on the website of the Council of Europe Treaty Office that Italy has not objected to the reservation. This means that Article 28 applies in relations between San Marino and Italy as amended by San Marino’s reservation. In other words, the 1939 Convention applies to relations between those two countries in addition to the 1957 Convention.

4. I consider, therefore, that it would have been more appropriate to draw attention in the judgment to San Marino’s obligation to establish clearly the scope of its international obligations in respect of extradition. Certainly, the relevant authorities should be aware of the State’s practice in international relations and in such an important matter as reservations to treaties. It is also difficult to understand why, in their submissions to the Court, the Government are not clear on where they stand in relation to their own reservation to the 1957 Convention. That in itself is sufficient to find problems in the application of Article 5.

5. I do not, however, consider the entirety of the available international and domestic law provisions regulating extradition in San Marino to be problematic. Nevertheless, it is true that if there is a problem at a national level with the direct application of international law, States tend to adopt a comprehensive domestic statute instead. However, San Marino needs to settle the question of whether it wishes to maintain its reservation to Article 28 of the 1957 Convention, since this remains an important ground for legal uncertainty.