NIVETTE v. FRANCE
Inadmissible
The applicant, Mr James Dewayne Nivette, is an American national, born in 1942 and currently in custody in Strasbourg-Elsau Prison. He was represented before the Court by Mr D.S. Bergmann, of the Colmar Bar. The facts of the case, as submitted by the parties, may be summarised as follows. On 18 November 1997 the Sacramento Municipal Court (California) issued an international warrant for the arrest of the applicant, who was suspected of having murdered his girlfriend on 16 November 1997. On 20 November 1997 the applicant was arrested at Munster (France) and taken into custody pending extradition proceedings. On 22 December 1997 the United States authorities filed an extradition request with the French Ministry of Foreign Affairs. On 29 January 1998 the Indictment Division of the Colmar Court of Appeal ruled in favour of extraditing the applicant provided that the United States authorities gave the French government an assurance that they would neither seek nor apply the death penalty. It referred expressly to the terms of a written declaration made by the Sacramento County District Attorney on 27 January 1998, which stated: “... under California law ..., I have the exclusive right to determine whether criminal charges will be filed against any particular defendant, and ... what the charges will be. ... ... In the case of James Dewayne Nivette, I have been advised by my deputies and agree that no ‘special circumstance’ is applicable ... This affidavit may be deemed a commitment by my office to not seek the death penalty against James Dewayne Nivette.” The Indictment Division of the Colmar Court of Appeal pointed out that, while the application of the death penalty to a person whose extradition had been granted by the French government would be contrary to French public policy under the Law of 9 October 1981 abolishing the death penalty and Protocol No. 6 to the European Convention on Human Rights, the same was not true of life imprisonment without the possibility of parole. The court also found that the question whether a limitation period applied to the crime (crime) committed did not arise because, even in France, the ten-year period had only just begun. Lastly, it found that, although the applicant had claimed to be a French national at the hearing, it could not be seriously disputed that he had American nationality only and so it declined to seek a preliminary ruling on that issue. On 12 May 1998 the Criminal Division of the Court of Cassation dismissed the applicant’s appeal on points of law against the Court of Appeal’s decision. It held that the ruling in favour of extradition, together with its proviso, was in accordance with domestic law. It declined, however, to rule on the grounds of appeal relating to nationality and the death-row phenomenon, taking the view that they amounted to criticisms of some of the reasons given in the Court of Appeal’s judgment and were therefore inadmissible. On 25 September 1998 the applicant applied to the Colmar District Court for a declaration of nationality. On 7 September 1999, at the French government’s request, further guarantees were provided by the Sacramento County District Attorney, who stated that: (a) as District Attorney, she was authorised by law to bind the State of California by her decisions and so the undertaking she had given was binding both on her successors and on the State of California; (b) her declaration amounted to a commitment and an assurance by the State of California that the death penalty would not be sought or applied against Mr Nivette at any stage in the prosecution or the criminal proceedings instituted against him; (c) under section 190.2 of the California Penal Code a death sentence for murder could be passed only if at least one of twenty-one special circumstances listed in the section applied; (d) the laws of the State of California made it legally impossible for the death penalty to be imposed unless a special circumstance was charged by the prosecuting authorities and upheld by the trial court; (e) the District Attorney alone was entitled to charge a special circumstance; no special circumstance would be charged in this case and therefore no court would be able to impose the death penalty on Mr Nivette; (f) even if the understanding of the facts in the case were to change in the future, her decision not to seek the death penalty was irrevocable. Even where a special circumstance existed, the District Attorney had a legal right not to charge it and she would not do so in this case even if a special circumstance became apparent at a later stage; it was consequently impossible for the death penalty to be imposed. That declaration was made “under penalty of perjury”. On 17 December 1998 the United States embassy in Paris forwarded to the French government assurances made by the federal government. On 21 October 1999 the French Prime Minister issued an extradition order; the applicant appealed to the Conseil d’Etat. On 6 November 2000 the Conseil d’Etat held as follows: “The death penalty was abolished in France by the Law of 9 October 1981. Under Article 1 of Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms, which was incorporated into the domestic legal order following its ratification ..., ‘The death penalty shall be abolished. No one shall be condemned to such penalty or executed’. Applying the death penalty to a person whose extradition has been granted by the French government would contravene French public policy. Consequently, if any of the crimes for which extradition is sought from the French authorities is punishable by death under the law of the requesting State, extradition in respect of that crime may legally be granted only on condition that the requesting State gives sufficient assurances that the death penalty will not be imposed or will not be executed. On the other hand, extradition of a person liable to serve a life sentence without any possibility of early release is not contrary to French public policy or Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The government of the United States’ request for the extradition of Mr Nivette is based on an act of murder. Under the criminal-law provisions that apply in California, which is the State whose courts have jurisdiction in the case, an accused found guilty of murder is liable to the death penalty. On 29 January 1998 the Indictment Division of the Colmar Court of Appeal ruled in favour of Mr Nivette’s extradition provided that the relevant United States authorities gave assurances to the French government that, even if the death penalty was imposed, it would not be sought or applied. Under the impugned order of 21 October 1999, the French government acceded to the American authorities’ request for the applicant’s extradition provided that the death penalty was not sought, imposed or executed. In a diplomatic note of 17 December 1998, the United States embassy made known to the French government the United States government’s assurance that, if Mr Nivette’s extradition was granted, the death penalty would not be imposed or carried out. The United States authorities also conveyed to the French authorities the undertaking made on behalf of the State of California by the District Attorney of Sacramento County – where Mr Nivette would stand trial – that the relevant prosecuting authority would not apply for the death penalty to be imposed on the applicant, even if new facts were uncovered that could amount to special circumstances. In an affidavit the Sacramento County District Attorney gave a formal assurance that the death penalty could not be imposed unless a special circumstance was charged by the prosecuting authorities. Under these circumstances, the applicant is not justified in maintaining that the impugned order is not attended by adequate safeguards and that his extradition would contravene French public policy. Contrary to the applicant’s allegations, the United States’ legal system respects individuals’ fundamental rights and freedoms as required by the general principles of extradition law. The impugned order is therefore not in breach of Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Mr Nivette maintained that he was a French national but provided no evidence to support that assertion. In the absence of any serious dispute on this subject, there is no reason to seek a preliminary ruling from the court competent to determine nationality issues. It follows that Mr Nivette is not justified in seeking to have the impugned order quashed ...”