Risk of being sentenced to death
II. RELEVANT DOMESTIC LAW AND PRACTICE A. Constitution of Albania 45. 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 “ 1. 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. ( ... ) Article 122 1. Any ratified international agreement is a constituent part of the domestic juridical system following its publication in the Official Journal of the Republic of Albania. It is directly applicable, except for cases when it is not self-executing and its implementation requires the adoption of a law. ( ... ) ” Constitutional Court ’ s case-law 46. By a landmark decision no. 65 of 10 December 1999 the Constitutional Court, relying heavily on the Convention, decided to abolish the death penalty in times of peace in all the provisions of the Criminal Code and in two provisions of the Military Criminal Code. B. Code of Criminal Procedure (“CCP”) 47. Articles 232 - 239 provide for the imposition of the following coercive security 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). 48. Article 266 § 1 provides that, in the event of the expiry of the period of detention and, if there still exist the grounds for which detention was ordered, the court may impose another security measure if warranted by the circumstances of the case. 49. 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. 50. 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. 51. Article 493 provides for the imposition of a coercive security order against the person to be extradited to avoid absconding from justice. A security order is imposed in accordance with the general provisions on security 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). 52. In accordance with Article 494, the District Court may impose a provisional security order at the request of the prosecutor in the absence of an extradition request. Such a security 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. 53. An arrest or detention should be validated by the District Court within forty-eight hours (Article 495 §§ 2 and 3). 54. 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). C. The jurisdiction in criminal matters Act (Law no. 10193 of 3 December 2009 on jurisdiction in criminal matters with foreign authorities) 55. 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. D. Treaty of Extradition between the United States and the Kingdom of Albania (“The Extradition Treaty”) 56. The bilateral Extradition Treaty between the United States and the then Kingdom of Albania was signed on 1 March 1933. It entered into force on 14 November 1935 and 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 “ ( ... ) The 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. ( ... ) III. RELEVANT INTERNATIONAL LAW AND PRACTICE The law and practice of the State of New York 57. The Government submitted that section 400.27 of the New York ’ s Criminal Procedure Law (“CPL”) stipulated the procedure for determining sentence upon conviction for the offence of murder in the first degree. Paragraph 10 of the above section, referred to as the jury deadlock instruction, read as follows: “At the conclusion of all the evidence, the people and the defendant may present argument in summation for or against the sentence sought by the people. The people may deliver the first summation and the defendant may then deliver the last summation. Thereafter, the court shall deliver a charge to the jury on any matters appropriate in the circumstances. In its charge, the court must instruct the jury that with respect to each count of murder in the first degree the jury should consider whether or not a sentence of death should be imposed and whether or not a sentence of life imprisonment without parole should be imposed, and that the jury must be unanimous with respect to either sentence. The court must also instruct the jury that in the event the jury fails to reach unanimous agreement with respect to the sentence, the court will sentence the defendant to a term of imprisonment with a minimum term of between twenty and twenty-five years and a maximum term of life. Following the court ’ s charge, the jury shall retire to consider the sentence to be imposed. ( ... ) ” 58. In People v. LaValle [ 3 NY3d88 (2004) ] the New York Court of Appeals set aside the death penalty sentencing statute ( section 400.27 (10) above) by declaring the jury deadlock instruction unconstitutional with the State Constitution. The court struck down the deadlock instruction because “it creates the substantial risk of coercing jurors into sentencing a defendant to death in violation of ... [the] Due Process Clause”. 59. In People v. Taylor [9 NYrd 129 (2007)] the New York Court of Appeals reconfirmed that the death penalty sentencing statute was unconstitutional as decided in LaValle. It stated, inter alia, that: “Like LaValle, our holding here is grounded in the irrevocable nature of capital punishment as well as ‘ the concomitant need for greater certainty in the outcome of capital jury sentences ’ (reference omitted). We do not agree that the Court erred in LaValle, or that our holdings were dicta, and thus we are ultimately left exactly where we were three years ago: the death penalty sentencing statute is unconstitutional on its face and it is not within our power to save the statute. LaValle is thus entitled to full precedential value. The Legislature, mindful of our State ’ s due process protections, may re-enact a sentencing statute that is free of coercion and cognizant of a jury ’ s need to know the consequences of its choice”. 60. To date, it would appear that the State legislature has not re-enacted any statute on the imposition of the death penalty. It would further appear that the capital penalty has not been imposed on any defendant. THE LAW I. ALLEGED VIOLATIONS OF ARTICLES 2 AND 3 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 13 ARISING FROM THE RISK OF THE IMPOSITION OF THE DEATH PENALTY 61. The applicant complained that his extradition to the United States, and the risk of being subjected to the death penalty, gave rise to a breach of Articles 2 and 3 of the Convention and Article 1 of Protocol No. 13, which read as follows: “ Article 2: Right to life “1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection. Article 3: Prohibition of torture “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 1 of Protocol 13: Abolition of the death penalty “ The death penalty shall be abolished. No one shall be condemned to such penalty or executed .” A. Admissibility 62. The Government submitted that the applicant could not claim to be a victim of a violation of the Convention having regard to the Supreme Court ’ s decision of 26 November 2010 which had quashed the lower courts ’ decision and had remitted the case for reconsideration to the District Court. 63. The Court reiterates that a decision or measure favourable to an applicant is not, in principle, sufficient to deprive the individual of his or her status as “victim”, unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, mutatis mutandis, Mishgjoni v. Albania, no. 18381/05, § 42, 7 December 2010). 64. In the present case, the Court notes that the Supreme Court ’ s decision was adopted subsequent to the applicant ’ s extradition. While it acknowledged breaches of a number of legal provisions by the lower courts and remitted the case for reconsideration, it was not capable of reversing the applicant ’ s extradition which had already taken place. In such circumstances, the applicant can continue to claim to be a “victim” of a violation of his Convention rights as regards that extradition. The Court therefore rejects this objection. 65. The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further finds that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions 66. The applicant maintained that, on the basis of the documents submitted by the United States authorities, there existed the risk that a capital sentence would be imposed on him. He argued that this consideration was entirely overlooked by the District Court and the Court of Appeal which authorised his extradition. This was further reinforced by the Supreme Court ’ s decision of 26 November 2010. He also questioned the quality of the assurances given by the United States authorities by way of diplomatic notes : the only responsible authority for giving such assurances should have been the Attorney General. The applicant invited the Court to disregard the New York Court of Appeals ’ judgments since the crimes with which he was charged were federal crimes and that case-law did not therefore apply. The applicant ’ s lawyer asked the Court to disregard the hearing record of 19 July 2011 as having been extracted under violence and ill-treatment (see paragraph 41 above). 67. The Government submitted that the domestic courts had reasonably considered and rejected the applicant ’ s arguments about the death penalty. The United States authorities, by way of diplomatic notes no. 91 of 8 November 2010 and no. 22 of 24 February 2011, had given assurances to the Albanian authorities that the death penalty would neither be sought nor imposed on the applicant. The Government further relied on the New York Court of Appeals ’ case-law which declared the death penalty to be unconstitutional. Moreover, according to the Government, the death penalty has not been applied in New York since 1977. 68. The Government also relied on the waiver of indictment that the applicant had signed of his own volition, with the assistance of his lawyer (see paragraph 41 above). According to the Government, the possibility of being subjected to the death penalty was not mentioned at that hearing and there existed no risk of the death penalty being imposed in this case. 2. The Court ’ s assessment (a) General principles 69. The Court refers to the general principles as laid down in its judgment in the case of Al-Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, § § 115- 12 7, ECHR 2010 (extracts), particularly: “118. ( ... ) in respect of those States which are bound by it, the right under Article 1 of Protocol No. 13 not to be subjected to the death penalty, which admits of no derogation and applies in all circumstances, ranks along with the rights in Articles 2 and 3 as a fundamental right, enshrining one of the basic values of the democratic societies making up the Council of Europe. As such, its provisions must be strictly construed (references omitted). ... 120. ( ... ) These figures, together with consistent State practice in observing the moratorium on capital punishment, are strongly indicative that Article 2 has been amended so as to prohibit the death penalty in all circumstances. Against this background, the Court does not consider that the wording of the second sentence of Article 2 § 1 continues to act as a bar to its interpreting the words “inhuman or degrading treatment or punishment” in Article 3 as including the death penalty (reference omitted). ... 122. Article 3, which prohibits in absolute terms torture and inhuman or degrading treatment or punishment, enshrines one of the fundamental values of democratic societies. It makes no provision for exceptions and no derogation from it is permissible under Article 15, even in the event of a public emergency threatening the life of the nation. As the prohibition of torture and of inhuman or degrading treatment or punishment is absolute, irrespective of the victim ’ s conduct, the nature of any offence allegedly committed by the applicant is therefore irrelevant for the purposes of Article 3 (reference omitted). 123. The Court further reiterates that expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case Article 3 implies an obligation not to deport the person in question to that country (reference omitted). Similarly, Article 2 of the Convention and Article 1 of Protocol No. 13 prohibit the extradition or deportation of an individual to another State where substantial grounds have been shown for believing that he or she would face a real risk of being subjected to the death penalty there (references omitted). 124. In this type of case the Court is therefore called upon to assess the situation in the receiving country in the light of the requirements of the above Articles. Nonetheless, there is no question of adjudicating on or establishing the responsibility of the receiving country, whether under general international law, under the Convention or otherwise. In so far as any liability under the Convention is or may be incurred, it is liability incurred by the Contracting State, by reason of its having taken action which has as a direct consequence the exposure of an individual to the risk of proscribed ill-treatment (reference omitted). ... 127. The Court must in addition have regard to the special character of the Convention as a treaty for the collective enforcement of human rights and fundamental freedoms. Its approach must be guided by the fact that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective (references omitted). 128. It has been accepted that a Contracting Party is responsible under Article 1 of the Convention for all acts and omissions of its organs regardless of whether the act or omission in question was a consequence of domestic law or of the necessity to comply with international legal obligations. Article 1 makes no distinction as to the type of rule or measure concerned and does not exclude any part of a Contracting Party ’ s “jurisdiction” from scrutiny under the Convention (reference omitted). The State is considered to retain Convention liability in respect of treaty commitments subsequent to the entry into force of the Convention (reference omitted). For example, in Soering (reference omitted) ... the obligation under Article 3 of the Convention not to surrender a fugitive to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture or inhuman or degrading treatment or punishment was held to override the United Kingdom ’ s obligations under the Extradition Treaty it had concluded with the United States in 1972”. (b) Application of the above principles to the present case 70. In the instant case, the applicant was arrested with a view to his extradition to the United States. On 30 August 2010 the United States authorities officially requested his extradition on, inter alia, a capital charge. On 30 September 2010 and 1 November 2010 the District Court and the Court of Appeal, respectively, ruled in favour of the applicant ’ s extradition. It is a matter of profound regret that the lower courts were willing to allow the applicant ’ s extradition without examining the reality of the risk alleged by the applicant. It is striking that the lower courts never sought assurances from the requesting Government that the death penalty would not be imposed in the event of the applicant ’ s conviction (see paragraphs 13 and 16 above). This matter only became a live issue in the proceedings before the Supreme Court, by which stage, regrettably, the applicant had already been extradited (see paragraphs 24 and 25 above). In this connection, the Court recalls that Protocol No. 13, which came into force in respect of Albania on 1 June 2007, taken together with the respondent State ’ s obligations under Articles 1, 2 and 3 of the Convention, dictated that, for whatever reason, it should not detain individuals with a view to extraditing them to stand trial on capital charges or in any other way subjecting individuals within its jurisdiction to a real risk of being sentenced to the death penalty and executed (see, mutatis mutandis, Al-Saadoon and Mufdhi, cited above, § 137), unless sufficient and binding assurances were sought and obtained from the responsible authorities of the requesting State. 71. However, prior to the applicant ’ s extradition on 24 November 2010, and, in response to the Albanian Minister of Justice ’ s request for assurances against the imposition of the death penalty, on 8 November 2001 the United States Embassy, by way of a diplomatic note, stated that “the death penalty will not be sought or imposed against [the applicant] upon his extradition to the United States.” 72. The Court recognises that, in extradition matters, diplomatic notes are a standard means for the requesting State to provide any assurances which the requested State considers necessary for its consent to extradition. It also recognises that, in international relations, diplomatic notes carry a presumption of good faith. The Court considers that, in extradition cases, it is appropriate that that presumption be applied to a requesting State which has a long history of respect for democracy, human rights and the rule of law, and which has longstanding extradition arrangements with Contracting States (see Babar Ahmad and Others v. the United Kingdom (dec.) nos. 24027/07, 11949/08 and 36742/08, § 10 5, 6 July 2010). Consequently, the Court will assess the quality of assurances given and whether in light of the requesting State ’ s practices they can be relied upon. 73. The Court finds nothing in the materials before it that could cast doubts as to the credibility of the assurances that capital punishment would not be sought or imposed in respect of the applicant by the requesting State. The assurances given by the United States Government were specific, clear and unequivocal. As was later confirmed in another diplomatic note of the United States Embassy on 24 February 2011, “these assurances are binding upon the United States Department of Justice.” The Court must further attach importance to the fact that, in the context of an extradition request, there have been no reported breaches of an assurance given by the United States Government to a Contracting State. The United States long-term interest in honouring its extradition commitments alone would be sufficient to give rise to a presumption of good faith against any risk of a breach of those assurances (see Babar Ahmad and Others (dec.), cited above, §§ 107-8). Lastly, as is evidenced by the record of the hearing of 19 July 2011, in which the applicant pleaded guilty to the charges, no mention was made by the United States judge of any risk for the applicant of facing the death penalty. 74. In the light of the above circumstances, the Court finds that the applicant ’ s extradition to the United States did not give rise to a breach of Articles 2 and 3 of the Convention and Article 1 of Protocol No. 13 on account of a risk of the death penalty being imposed. II. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION 75. The applicant complained that his extradition to the US, in breach of the Court ’ s indication under Rule 39 of the Rules of Court, gave rise to a violation of Article 34 of the Convention, which provides : “The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” A. Admissibility 76. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions 77. The applicant maintained that there had been a breach of Article 34 of the Convention as a result of the non-compliance by the Albanian authorities with the Court ’ s interim measure. He argued that compliance with the wishes of a foreign embassy is against the spirit of the Convention ’ s supremacy in the domestic legal order. 78. As to any objective obstacles for compliance with the Rule 39 interim measure, the applicant argued that, in accordance with Article 266 § 1 of the CCP, measures other than detention were available to the authorities. Furthermore, the Government did not attempt to inform the Court of the existence of any objective obstacles prior to the applicant ’ s extradition. 79. The Government submitted that it was not the authorities ’ intention to disregard the obligations arising from the Court ’ s Rule 39 interim measure. Having regard to the highly complex nature of the applicant ’ s case, the societal risk he posed and the obligations stemming from other international commitments, the authorities attempted to find the best solution. The Government requested the Court, in view of the exceptional circumstances of the case, to be flexible in the assessment of the facts which prompted the applicant ’ s extradition. 80. The Government argued that the applicant ’ s extradition was ordered by the Court of Appeal ’ s decision of 1 November 2010, which was final and had acquired the force of res judicata. In their view, Article 499 § 1 of the CCP provided for the applicant ’ s release if the Ministry of Justice did not order the applicant ’ s extradition within a month from the date of the Court of Appeal ’ s decision, despite the fact that the applicant ’ s appeal was pending before the Supreme Court. The Government further clarified that domestic law did not envisage the continuation of detention in the event of a remittal of a case by the Supreme Court. Consequently, in so far as the law did not stipulate the continuation of a defendant ’ s arrest, the legal interpretation was to be in favour of the defendant, which would result in his subsequent release. In the present case, had the authorities released the applicant, the Government would have been in breach of the Extradition Treaty provisions. If the authorities had not extradited the applicant by 1 December 2010, they would have had to release him in accordance with Article 499 § 1 of the CCP. Consequently, the Minister of Justice was faced with an objective impediment to compliance with the Court ’ s interim measure. 2. The Court ’ s assessment (a) General principles 81. Interim measures under Rule 39 of the Rules of Court are indicated only in limited spheres. In practice, the Court will make such an indication only if there is an imminent risk of irreparable damage. While there is no specific provision in the Convention concerning the domains in which Rule 39 will apply, requests for its application usually concern the right to life (Article 2), the right not to be subjected to torture or inhuman treatment (Article 3) and, exceptionally, the right to respect for private and family life (Article 8) or other rights guaranteed by the Convention (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 104, ECHR 2005 ‑ I ). Under the Convention system, interim measures play a vital role in avoiding irreversible situations that would prevent the Court from properly examining the application and, where appropriate, securing to the applicant the practical and effective benefit of the Convention rights asserted. Accordingly, in these conditions a failure by a respondent State to comply with interim measures will undermine the effectiveness of the right of individual application guaranteed by Article 34 and the State ’ s formal undertaking in Article 1 to protect the rights and freedoms set forth in the Convention ( Mamatkulov, cited above, § 125). 82. Article 34 will be breached if the authorities of a Contracting State fail to take all steps which could reasonably have been taken in order to comply with the interim measure indicated by the Court ( Paladi v. Moldova [GC], no. 39806/05, § 88, 10 March 2009 ). In examining a complaint under Article 34 concerning the alleged failure of a Contracting State to comply with an interim measure, the Court will not re-examine whether its decision to apply interim measures was correct. It is for the respondent Government to demonstrate to the Court that the interim measure was complied with or, in an exceptional case, that there was an objective impediment which prevented compliance and that the Government took all reasonable steps to remove the impediment and to keep the Court informed about the situation ( Paladi, cited above, § 92; Grori v. Albania, no. 25336/04, § 184, 7 July 2009; and Al-Saadoon and Mufdhi, cited above, § 161 ). (b) Application of the above principles to the present case 83. The Court notes that the respondent Government were initially informed, by way of a facsimile and mail, of the interim measure under Rule 39 on 12 October 2010, according to which the applicant was not to be extradited “until the lapse of ten days following notification of the Court of Appeal ’ s decision to the Court”. The prolongation of the application of the interim measure, “until the lapse of fifteen days following notification of the Supreme Court ’ s decision to the Court”, was communicated, by way of a facsimile and mail, to the respondent Government on 2 November 2010. Despite the diplomatic assurances given by the United States Government, on 18 November 2010 the Government were informed that the interim measure continued to apply. However, the applicant was extradited on 24 November 2010. The interim measure was evidently not complied with. 84. The Court will therefore determine whether there were objective impediments which prevented the Government ’ s compliance and whether they took all reasonable steps to remove the impediment and to keep the Court informed about the situation (see Grori, cited above, § 188). 85. In the first place, the Court does not accept the Government ’ s argument that, in extraditing the applicant, they complied with the final Court of Appeal ’ s judgment of 1 November 2010. For the purposes of the Convention, a final judgment which has become res judicata is a judgment which may not be subject to control by a higher instance court and, eventually, quashed (see, mutatis mutandis, Gjyli v. Albania, no. 32907/07, § § 33-34, 29 September 2009 ), whereas the present Court of Appeal ’ s judgment was lawfully quashed by the Supreme Court ’ s judgment of 26 November 2010 and those proceedings are still pending. 86. The Court cannot accept the Government ’ s argument that the failure to extradite the applicant would have interfered with Albania ’ s international obligations under the 1935 Extradition Treaty. In this respect the Court refers to its case-law as summarised in the Al-Saadoon and Mufdhi judgment to the effect that the Convention is intended to safeguard rights that are “practical and effective” and that a respondent State is considered to retain Convention liability in respect of treaty commitment prior to or subsequent to the entry into force of the Convention (see, for example, paragraph 69 above). Moreover, in the Al-Saadoon and Mufdhi judgment the Court further held that “ it is not open to a Contracting State to enter into an agreement with another State which conflicts with its obligations under the Convention. This principle carries all the more force ... given the absolute and fundamental nature of the right not to be subjected to the death penalty and the grave and irreversible harm” risked by the applicant (see paragraph 138 of the said judgment). The fact that the harm which an interim measure was designed to prevent subsequently does not materialise, despite a State ’ s failure to act in full compliance with the interim measure, is equally irrelevant for the assessment of whether the respondent State has fulfilled its obligations under Article 34 (see Grori, cited above, § 194; and, Paladi, cited above, § 89). 87. Finally, the Court rejects the Government ’ s argument that the applicant ’ s extradition was unavoidable given the imminent expiry of his period of detention and the absence of any alternative to his release. In the first place, there was no legal basis for the applicant ’ s extradition after the Supreme Court ’ s judgment of 26 November 2010. Furthermore, the Court notes that although the time-limit for the applicant ’ s extradition was extended to 1 December 2010 (see paragraph 23 above), he was physically removed on 24 November 2010, that is just two days prior to the Supreme Court ’ s decision. Secondly, neither the existing state of national law expounded by the Government, notably the alleged legal vacuum concerning the continuation of detention beyond the time-limit provided for in Article 499 of the CCP, nor deficiencies in the national judicial system and the difficulties encountered by the authorities in seeking to achieve their legislative and regulatory objectives, can be relied upon to the applicant ’ s detriment, in the absence of a final domestic court judgment authorising his extradition, or avoid or negate the respondent State ’ s obligations under the Convention (see, mutatis mutandis, M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 321, ECHR 2011; Abdolkhani and Karimnia v. Turkey, no. 30471/08, §§ 113-117, 22 September 2009; Čonka v. Belgium, no. 51564/99, § 84, ECHR 2002 ‑ I; Jabari v. Turkey, no. 40035/98, §§ 49 ‑ 50, ECHR 2000 ‑ VIII ). Thirdly, there is no indication that the authorities considered the possibility of taking any steps to remove the risk of the applicant ’ s flight in the event of his release, by, for example, the imposition of other coercive forms of security measures provided for under the CCP (see paragraphs 47 and 48 above). Fourthly, the authorities did not inform the Court, prior to the extradition, of the difficulties encountered by them in complying with the interim measure. 88. In these circumstances, the Court concludes that the domestic authorities ’ non-compliance with the interim measure at issue, in the absence of any objective justification, constitutes a violation of Article 34 of the Convention. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 89. The applicant complained of a breach of Article 3 of the Convention on account of the imposition of a life sentence without parole by the United States courts. The Government contended that the applicant had not raised this complaint before domestic courts. 90. The Court recalls that the imposition of a life sentence on an adult offender is not, in itself, prohibited by Article 3 or any other provision of the Convention or incompatible therewith (see, among many other authorities, Bamber v. the United Kingdom, no. 13183/87, Commission decision of 14 December 1988, and Sawoniuk v. the United Kingdom (dec.), no. 63716/00, ECHR 2001-VI). It is only in very exceptional cases that an applicant will be able to demonstrate that the sentence he or she would face in a non-Contracting State would be grossly disproportionate and thus contrary to Article 3 at the moment of its imposition (see Harkins and Edwards v. the United Kingdom, nos. 9146/07 and 32650/07, § 134, 17 January 2012). In the absence of any such gross disproportionality, an Article 3 issue will arise for a mandatory sentence of life imprisonment without the possibility of parole in the same way as for a discretionary life sentence, when it can be shown : (i) that the applicant ’ s continued imprisonment can no longer be justified on any legitimate penological grounds; and (ii) that the sentence is irreducible de facto and de iure (see Harkins and Edwards, cited above, § 138; and, Kafkaris v. Cyprus [GC], no. 21906/04, § 98, ECHR 2008). 91. In the circumstances of the present case, the Court considers that it is not necessary to examine the question of exhaustion of domestic remedies by the applicant, because this complaint is in any event manifestly ill ‑ founded for the following reasons. At the time of the submission of this complaint, the applicant had not yet been convicted, still less begun to serve his sentence. Had the applicant been sentenced, the Court does not find that the likely sentence to be imposed would have been grossly disproportionate, having regard to the counts with which he was charged and the plea bargain he has voluntarily and knowingly made. Moreover, the applicant did not show that, upon extradition, his incarceration in the United States would not serve any legitimate penological purpose. Indeed, if he had been given a mandatory life sentence, it may well have been that the point at which his continued incarceration would no longer serve any purpose would never have arisen. Lastly, the Court notes that the applicant was, in fact, sentenced by the United States court to 80 months ’ imprisonment (see paragraph 44 above) The Court therefore considers that this complaint is manifestly ill ‑ founded and should be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 92. The applicant further complained that his initial arrest and continued detention were in breach of Article 5 § 1 of the Convention. The Government submitted that there was a legal basis under domestic law for the applicant ’ s initial custody and his continued detention. 93. The Court notes that the applicant was detained as a person “against whom action is being taken with a view to ... extradition” and this detention fell under Article 5 § 1 (f). The parties dispute, however, whether this detention was “lawful” within the meaning of Article 5 § 1 of the Convention. 94. Where the “lawfulness” of detention is in issue, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof. Compliance with national law is not, however, sufficient. Article 5 § 1 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness (see, for example, Saadi v. the United Kingdom [GC], no. 13229/03, § 67, ECHR 2008 ). 95. In the instant case, the applicant was remanded in custody on 2 July 2010. His custody was validated in accordance with the law by the domestic courts, which relied on an international wanted notice and Article XI of the Extradition Treaty. The Court notes that the Extradition Treaty allows for a two-month custodial detention pending receipt of the official request for extradition from the requesting State. The period that elapsed between the date of the applicant ’ s arrest and the date of the United States request for extradition ( 2 July and 30 August 2010 ), amounts to less than two months. The Court has no grounds upon which to conclude that the applicant ’ s detention, prior to receipt of the United States official request for his extradition, was “unlawful” merely because of the lack of an official request for extradition (see Khodzhayev v. Russia, no. 52466/08, § 137, 12 May 2010 ). 96. As to the compliance of the applicant ’ s continued detention with national law, the Court observes that the domestic courts, in extending his detention, acted in accordance with Article 493 of the CCP. The extension of his detention was based on judicial decisions. Furthermore, the length of the overall detention, that is four months and twenty-two days, was not excessively long and was justified by the conduct of the extradition proceedings. Moreover, the Court does not consider that the domestic courts lacked any due diligence in examining the applicant ’ s case ( see Quinn v. France, 22 March 1995, § 48, Series A no. 311 ). 97. The Court therefore considers that this complaint is manifestly ill ‑ founded and should be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 98. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 99. The applicant submitted that, while it was difficult to calculate his precise pecuniary damage, it should not be less than 18,000 euros (EUR). This included his salary, his education fees and the amount concerning the alleged unjust deprivation of liberty. He further claimed EUR 30,000 in respect of non-pecuniary damage. 100. The Government objected to the applicant ’ s claims arguing that they were excessive and unreasonable. 101. In the present case, the Court has found a violation of Article 34 of the Convention. The Court does not discern any causal link between the violations found and the pecuniary damage alleged. As regards the award for non-pecuniary damage, the Court considers that the finding that there was a breach of Article 34 of the Convention constitutes of itself sufficient just satisfaction (see, for example, Al-Saadoon and Mufdhi, cited above, § 174). B. Costs and expenses 102. The applicant also claimed 2,465,743 Albanian leks (ALL) for the costs and expenses incurred before the domestic courts and those incurred before this Court. He further claimed 238,498.1 United States Dollars (USD) for the costs and expenses incurred before the United States courts. He submitted detailed invoices. 103. The Government rejected the applicant ’ s claims. 104. The Court reiterates that only legal costs and expenses found to have been actually and necessarily incurred (in the case of domestic proceedings, in seeking redress for the violations of the Convention found or preventing a violation occurring) and which are reasonable as to quantum are recoverable under Article 41 of the Convention (see, for example, Nikolova v. Bulgaria [GC], no. 31195/96, § 79, ECHR 1999-II; Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 28, ECHR 1999-VI; and Roche v. the United Kingdom [GC], no. 32555/96, § 182, ECHR 2005-X). 105. The Court considers that the applicant ’ s lawyers ’ fees incurred in the domestic proceedings do not constitute expenses incurred in seeking redress for the violations of the Convention found in the present case. However, having regard to the detailed supporting documents submitted and, making its assessment on an equitable basis, the Court awards the applicant EUR 1, 5 00 in respect of the Strasbourg proceedings. C. Default interest 106. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
Concerning the alleged risk of the death penalty being imposed, the Court found that the applicant’s extradition to the United States had not given rise to a breach of Articles (right to life) 2 and 3 (prohibition of inhuman or degrading treatment) of the Convention and Article 1 (abolition of the death penalty) of Protocol No. 13 to the Convention. There was nothing in the materials before the Court that could cast doubts as to the credibility of the assurances that capital punishment would not be sought or imposed in respect of the applicant by the United States. In this case the Court further held that there had been a violation of Article 34 (right to individual application) of the Convention, because the applicant had been extradited to the United States in breach of the Court’s indication to the Albanian Government, under Rule 39 (interim measures) of the Rules of Court, not to extradite him.