CASE OF SARDINAS ALBO v. ITALY
Preliminary objections rejected (non-exhaustion of domestic remedies, victim);Violation of Art. 5-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses (Convention proceedings) - claim dismissed
Christos Rozakis
9. The applicant was born in 1948 and is currently detained in Voghera. 10. On 6 August 1996 the applicant, accused of international drugtrafficking, was arrested in Milan. He was in possession of a false passport in the name of José Luis Troccoli Perdomo. 11. On 7 August 1996 the applicant was questioned by the Milan Public Prosecutor. Criminal proceedings were instituted against José Luis Troccoli Perdomo. 12. By an order of 9 August 1996, the Milan investigating judge remanded the applicant in custody. He observed that there was strong evidence of guilt against the applicant, who was in possession of documents showing that he was in contact with persons connected to drug-trafficking. Given the amount of cocaine (104 kilograms) imported by those persons and the fact that they were probably part of a major criminal organisation, the investigating judge considered that there was a serious risk of re-offending and a risk of tampering with evidence. Moreover, the applicant had declared that he was a tourist and that he had no links whatsoever to Italy. It was therefore reasonable to believe that he would try to abscond in order to avoid the consequences of the legal proceedings commenced against him. 13. The applicant challenged the order before the Milan District Court, which dismissed his appeal on 23 September 1996. The District Court observed that new evidence had emerged against the applicant, who had been recognised as the person who had rented a deposit box in which the cocaine had been found, had helped to move a container into the deposit box and was facing another set of proceedings for drug-trafficking pending in Bassano del Grappa. The Milan District Court held that there was a serious risk of his re-offending, as evidenced by the fact that the applicant was part of a powerful criminal organisation. Moreover, if he were released, the applicant might try to get in touch with the other members of the organisation in order to tell them about the investigations with a view to tampering with the evidence. Finally, there was a risk of his absconding, confirmed by the fact that the applicant had given a different name to the Bassano del Grappa judicial authorities. 14. The applicant did not appeal on points of law to the Court of Cassation against the order of 23 September 1996. 15. On 27 May 1997 the Milan Public Prosecutor’s Office requested that the applicant and twelve other persons be committed for trial. The preliminary hearing was scheduled for 23 June 1997, on which date the applicant was committed for trial, to begin on 2 April 1998 before the Milan District Court. 16. In a judgment of 22 April 1998, filed with the registry on 27 April 1998, the Milan District Court declared that the case was outside its jurisdiction ratione loci and ordered the transmission of the case-file to the Genoa Public Prosecutor’s Office. 17. In a decision of 8 May 1998 the Genoa investigating judge extended the applicant’s detention on remand. After confirming the observations made in the orders of 9 August and 23 September 1996, he noted that further investigation had revealed that the applicant had played an active role in renting the deposit box where the cocaine had been found and in sending the container in which it was concealed and had kept in contact with the other defendants who had been caught by the police in the act of removing the cocaine from the container. The investigating judge considered moreover that there was a risk of his re-offending and absconding after having committed the offence. He noted in that respect that another set of criminal proceedings had been instituted against the applicant in Bassano del Grappa, and that the accused had tried to abscond, producing false identification papers. 18. The applicant did not appeal against the decision of 8 May 1998. 19. On 4 November 1998 the Public Prosecutor attached to the Genoa District Court forwarded the case-file to the Como Public Prosecutor’s Office. 20. In a judgment of 7 October 1999, filed with the registry on 28 October 1999, the Como District Court found the applicant guilty of the charges against him and sentenced him to fifteen years’ imprisonment and imposed a fine of 130,000,000 Italian lire (ITL). The applicant’s name was established as being in reality Horacio Sardinas Albo. 21. On 20 December 1999 the applicant appealed against that judgment. He challenged, in particular, the jurisdiction of the Como District Court. 22. The hearing was scheduled for 16 March 2000. On that date, the applicant concluded a plea bargain (applicazione della pena su richiesta delle parti) with the Public Prosecutor attached to the Milan Court of Appeal. The applicant agreed to withdraw his appeal in return for a reduction in his sentence. 23. In a judgment of 16 March 2000, the Milan Court of Appeal recognized the agreement reached by the parties and reduced the applicant’s sentence to eleven years’ imprisonment and a fine of ITL 100,000,000. 24. The applicant’s appeal on points of law was declared inadmissible by the Court of Cassation in a judgment of 2 February 2001. 25. Meanwhile, on 14 May 1998, the Ministry of Justice had requested that the applicant be placed in detention with a view to his extradition to the United States. In an order of 15 May 1998 the Brescia Court of Appeal had provisionally granted the request. 26. On 22 May 1998 the applicant was interviewed by the President of the Brescia Court of Appeal. He declared that he did not agree to be extradited since the absence of diplomatic relations between Cuba and the United States could result in his being detained for an indefinite period of time (a situation commonly known as “limbo incarceration”). 27. On 22 May 1998 the applicant challenged the order of 15 May 1998. He contested in particular the authorities’ assumption that it was necessary to prevent him from absconding before the extradition decision could be enforced. By an order of 26 May 1998 the Brescia Court of Appeal rejected his claim. The applicant’s appeal on points of law was declared inadmissible. 28. On 22 June 1998 the United States authorities requested the applicant’s extradition for offences related to drug-trafficking (importation and possession of 425 kilograms of cocaine). 29. On 25 August 1998 the Brescia Public Prosecutor’s Office requested that extradition be granted. It was noted that an arrest warrant had been issued against the applicant on 9 June 1993 by the Porto Rico District Court and that in the light of the evidence produced by the United States authorities it was reasonable to believe that the applicant was guilty of the offences with which he had been charged. 30. In a judgment of 2 October 1998, filed with the registry on 6 October 1998, the Brescia Court of Appeal ruled in favour of extradition. 31. On 27 October 1998 the applicant appealed on points of law. He submitted that Cuban nationals incurred a serious risk of indefinite detention in the United States. 32. By a judgment of 29 January 1999, filed with the registry on 29 March 1999, the Court of Cassation dismissed the applicant’s appeal. 33. On 12 May 1999 the Ministry of Justice granted the extradition request. However, noting that criminal proceedings against the applicant were then pending before the Como District Court, the Ministry decided, according to Article 709 of the Code of Criminal Procedure (hereinafter, the “CCP”), to suspend the enforcement of the extradition. 34. Meanwhile the United States authorities had once again requested the applicant’s extradition in relation to a charge of false statements. The applicant had allegedly declared that his name was Gilberto Ramos in order to obtain a United States passport and had produced evidence corroborating the assertion. 35. By an order of 4 June 1999 the Brescia Court of Appeal decided that the applicant should be detained with a view to extradition. It noted, in particular, that the applicant had already left the jurisdiction of the Florida courts and that there was a specific risk of his absconding. The order indicated that the applicant was a Cuban citizen who, in February 1973, had obtained a permanent residence permit in the United States. 36. On 8 July 1999 the applicant appealed on points of law against the order of 4 June 1999. 37. By a judgment of 19 August 1999, filed with the registry on 1 September 1999, the Court of Cassation declared the applicant’s appeal inadmissible because it had been lodged out of time. 38. By a judgment of 9 March 2000, filed with the registry on 21 March 2000, the Brescia Court of Appeal ruled in favour of extradition. 39. The applicant appealed on points of law. By a judgment of 19 September 2000, filed with the registry on 30 October 2000, the Court of Cassation, considering that the Court of Appeal had duly given reasons for its decision, dismissed the applicant’s appeal. 40. By an order of 3 November 2000 the Ministry of Justice granted the extradition request. However, noting that criminal proceedings against the applicant were still pending, the Ministry decided to suspend enforcement of the extradition. 41. The first paragraph of Article 273 of the CCP provides that “no one shall be detained pending trial unless there is serious evidence of his guilt”. 42. Article 274 CCP goes on to provide that detention pending trial may be ordered: “(a) if detention is demanded by special and unavoidable requirements of the inquiry into the facts under investigation concerning a genuine and present danger for the production or authenticity of evidence ...; (b) if the accused has absconded or there is a real danger of his absconding, provided that the court considers that, if convicted, he will be liable to a prison sentence of more than two years; and (c) where, given the specific nature and circumstances of the offence and having regard to the character of the suspect or the accused as shown by his conduct, acts or criminal record, there is a genuine risk that he will commit a serious offence involving the use of weapons or other violent means against the person or an offence against the constitutional order or an offence relating to organised crime or a further offence of the same kind as that of which he is suspected or accused ...” 43. Under Article 275 of the CCP, precautionary measures should be adapted, in each individual case, to the nature and degree of the conditions set out in Article 274; they must be proportionate to the seriousness of the offence and to the sanction which is likely to be applied. Detention pending trial may be ordered only if all other precautionary measures appear to be inadequate. 44. Article 292 CCP provides inter alia that a detention order must contain an explanation of the actual grounds for the precautionary measure and of the specific evidence of guilt, including the factual elements on which the evidence is based and the grounds for its relevance, and must also take into account the time elapsed since the offence was committed. 45. According to the Court of Cassation’s case-law, the existence of evidence of guilt and of the reasons for detention set out in Article 274 of the CCP should be re-examined in the light of any new relevant facts, such as the time elapsed since the beginning of the enforcement of the precautionary measure (see the Fourth Section’s judgment no. 2395 of 16 October 1997 in the case of Luise). 46. Article 303 CCP lays down the maximum permitted periods of detention pending trial which vary according to the stage reached in the proceedings and according to the seriousness of the offences with which the accused is charged. 47. In 1989 the Court of Cassation held that the Convention provisions were applicable in Italy, provided that they were drafted in sufficiently precise terms (see the Plenary Court’s judgment no. 15 of 8 May 1989 in the case of Polo Castro). According to the Constitutional Court, the Convention is a special source of law which cannot be modified by ordinary law (judgment no. 10 of 19 January 1993). 48. However, in more recent decisions, the Court of Cassation has held that Article 5 § 3 of the Convention is not directly applicable in Italy, by reason of its general and indeterminate character (natura programmatica see, in particular, the following judgments: no. 2549 of 28 May 1996 (First Section) in the case of Persico; no. 2550 of 31 May 1997 (First Section) in the case of Esposito; no. 1439 of 21 May 1998 (Fourth Section) in the case of Scattolin). 49. According to Article 709 of the CCP “The enforcement of extradition shall be suspended if the person to be extradited ought to be judged [in Italy] or must serve [in Italy] a sentence imposed on him or her for offences committed before or after the offence in respect of which the extradition has been granted ...”.