In light of the declared risk of inhuman or degrading treatment, under Italian extradition law the executing State in extradition or European Arrest Warrant proceedings cannot rely solely on the assurances or treaty commitments of the requesting State.
Instead, it must base its assessment on objective, reliable, specific, and up-to-date information, including decisions of international courts such as the ECtHR and reports by Council of Europe or UN bodies.
Given Turkey’s long-standing and systematic violations of human rights, particularly toward prisoners, opposition members, and ethnic Kurds, extradition authorities must obtain clear and individualized evidence to exclude the risk.
In Italian extyratidionm proceedings, the status of the requested person must be evaluated exclusively on the basis of the documentation submitted by the requesting State, without reference to domestic judicial measures in Italy unrelated to the extradition case.
(unofficial machine translation)
SUPREME COURT OF CASSATION
SIXTH CRIMINAL SECTION
(hearing date 12/03/2025) 16/04/2025, no. 15109
JUDGMENT
on the appeal lodged by
A.A., alias (Omissis), born in T on (Omissis) (CUI (Omissis))
against the judgment handed down on 21/12/2024 by the Court of Appeal of Rome;
having examined the documents, the contested judgment and the appeal;
having heard the report by Councilor Paola Di Nicola Travaglini,
having heard the closing arguments of the Public Prosecutor, in the person of Deputy Attorney General Mariella De Masellis, who concluded for annulment with referral limited to the ground of appeal relating to prison conditions in T;
having heard the lawyers FC and AF, on behalf of A.A., who insisted on the acceptance of the appeals.
In fact
1. With the above judgment, the Court of Appeal of Rome declared that the conditions for granting the extradition request submitted by the Turkish authorities to execute four arrest warrants issued by the Criminal Court of Istanbul against A. A., who was under investigation in several criminal proceedings in the requesting State for common crimes (criminal association, voluntary manslaughter, armed robbery) committed in T in 2022 and 2023.
The contested judgment referred, first of all, to the previous refusal to extradite A.A., ordered by judgment of March 21, 2023, of the Court of Appeal of Bologna and confirmed by judgment of the Sixth Criminal Section No. 31588 of 2023, based on three different grounds: the insufficient description of the crimes attributed to the appellant; the personal circumstances of A.A., who belongs to the Kurdish ethnic group and is affiliated with a pro-Kurdish party, such that it cannot be ruled out that the crimes of common criminality actually concealed intentions of political persecution; the situation in Turkish prisons, which poses a serious risk of inhuman and degrading treatment.
The contested ruling considered all the issues raised by the aforementioned judgment of the Court of Cassation to have been overcome, since on July 12, 2024, the Court of Milan had issued a precautionary detention order (acquired by the Court) against A.A. and others, accusing the appellant of being the leader of an armed criminal organization, with branches organized in other European countries - engaged in international trafficking of arms and drugs, aiding and abetting illegal immigration, murder and massacres, money laundering, document forgery, receiving stolen goods and self-laundering, etc., a provisional charge considered similar to that brought by the Turkish judicial authorities.
Furthermore, the Court of Appeal of Rome upheld the decree of October 25, 2022, rejecting the application for international protection (appealed and not yet decided) issued by the Territorial Commission of Bologna due to lack of evidence that A.A. belonged to the Kurdish ethnic group, the Alevite Islamic religion, or the Kurdish HDP party, such that there were no grounds for persecution.
Finally, with regard to prison treatment, the contested judgment noted that a meeting was held in Italy on May 2, 2024, with Turkish representatives for the handover of the applicant, at which the Italian Ministry of Justice requested more detailed information on A.A.'s future detention conditions. The response received indicates that he would be placed in maximum security in prison D, where the international standards laid down by the ECHR are respected and, in any case, Turkish law does not allow discrimination on the basis of ethnic origin.
2. A.A. lodged two appeals against the judgment of the Court of Appeal of Rome, signed by his defense counsel, with the grounds set out below, within the limits strictly necessary pursuant to Article 173 of the Code of Criminal Procedure.
The appeals allege misapplication of Article 705(1) of the Code of Criminal Procedure in that the contested measure, without taking into account the defense arguments, based the existence of the conditions for surrender not on the circumstantial evidence in the Turkish criminal proceedings, in which the witness statements were all retracted or refuted with regard to the appellant's responsibility, but on the basis of the alleged crimes, also committed in Italy, and the investigative activity underlying the precautionary order issued by the Court of Milan. The latter, moreover, was based solely on wiretaps, to which the applicant was not a party, and investigations in which the Turkish police cooperated by influencing witnesses to make statements against A.A., confirming that the request for extradition by T for common crimes conceals a clear intention to persecute the applicant for his political activism as a Kurdish independence activist.
Furthermore, A.A.'s affiliation to the Kurdish ethnic group and its political parties, which oppose the current Turkish regime, is documented: by his place of birth, as confirmed on page 5 of the judgment of the Court of Cassation No. 31588 of 2023; by his membership of the Kurdish HDP party, as a result of which he has been threatened, and by his funding of the PKK (Kurdish Workers' Party); by the newspapers in which he is mentioned as belonging to that ethnic group; by his knowledge of the Kurdish language and the language of the Zaza, an ethnic group that considers itself Kurdish; by the attack he suffered on March 18, 2024, while under house arrest in C, in which an article in an Italian newspaper (attached) suggests the involvement of the Turkish secret services.
A.A.'s membership of the Alevi religion is also evident from the tattoo of its symbols on his left arm.
Finally, with regard to the prison treatment at the prison in D, the contested judgment limited itself to a purely formal check of compliance with the parameters required to avoid a violation of Article 3 of the ECHR, without taking into account the well-known conditions in Turkish prisons.
Nor can it be considered sufficient to ascertain the restoration of the protection of fundamental rights by the notification of the withdrawal of the suspension of the application of the European Convention on Human Rights, which took place by letter from the Secretary General of the Council of Europe on August 8, 2018, precisely in light of the reports by Amnesty International and Human Rights Watch.
3. In a subsequent brief, the applicant's counsel, Attorney FC, filed additional documents demonstrating A.A.'s membership of the Kurdish ethnic group and the persecution he suffered, his status as an Alevite Muslim, and his political activism, as well as the 2024 reports of the Lawyers for Freedom Association and the European Commission on prison conditions in T and two judgments issued respectively by the Court of Appeal of Milan and the Court of Appeal of L'Aquila, rejecting the request for extradition to T of two co-defendants of the appellant.
Reasons for the decision
1. The appeal is well founded.
2. Given that the procedure in question is governed by the provisions of the European Convention on Extradition of 1957, ratified and implemented in Italy by Law No. 30 of January 30, 1963, 300, with regard to the issue raised in the appeal concerning the seriousness of the evidence of the crimes for which extradition has been requested, the established interpretative approach of this Court must be reiterated, according to which, in extradition proceedings, the Italian judicial authority, while having to make a summary assessment, pursuant to Article 705 of the Code of Criminal Procedure, of the reasons why it was considered probable, on the basis of the documents produced and the content of the extradition request itself, that there are elements against the person sought in relation to the offences alleged, it must in any case assess the specificity of the allegations and the sources of evidence (Section 6, No. 31588 of 14/06/2023, A.A., Rv. 285088; Section 6, no. 8636 of 30/01/2024, Aleyenik Danyl Sergeevich, Rv. 286074; Section 6, no. 18492 of 26/02/2020, Flosi, Rv. 279308; Section 6, no. 40552 of 25/09/2019, Trandate, Rv. 277560).
2.1. In the present case, the extradition request submitted by Turkey concerns the execution of four arrest warrants, three of which were issued on January 25, 2024, by the Istanbul Criminal Court of Peace for the crimes of “forming an organization with the aim of committing a crime,” “intentional homicide,” and “armed robbery by multiple persons,” committed on August 31, 2022; the fourth is an arrest warrant issued on February 28, 2023, by the 18th Criminal Court of Istanbul for “robbery in association with several persons, with weapons and exploiting the intimidating power created by the organization and with the aim of promoting the criminal organization” committed in Istanbul in 2022.
2.2. Regardless of the significant discrepancy between the date of commission of the offenses reported in the arrest warrants and that contained in the extradition request and in the review report of the Istanbul Public Prosecutor's Office (see in this regard the note of the Attorney General of the Republic of Rome of May 14, 2024), the Turkish judicial authority has indicated a series of acts, mainly homicides, actually committed by persons other than the applicant, which have been attributed to him on the basis of statements made by other co-defendants who had identified him as the leader of the association that ordered the acts.
The contested measure, on pages 11-14, reproduced verbatim the content of the investigations carried out by the Turkish Public Prosecutor following the attack of November 15, 2023, and the murder of September 19, 2023, which lack a compelling link with the crimes for which extradition is sought, given the purely assertive nature of the conclusions reached by the requesting authority.
2.3. It cannot be considered that the crimes alleged in this case can be proven by the investigative activities carried out by the Milan Public Prosecutor's Office, which led to the application by the Court of the precautionary measure of detention in prison on July 12, 2024, against A.A. and others for the crime of aggravated criminal association, also involved in international trafficking of arms, drugs, murder, and mass killings, with branches in several European countries, not only because, even in fact, the provisional charge (set out on pages 3-6 for count A) does not appear to be at all similar or analogous to that formulated by the Turkish judicial authority, contrary to the findings of the contested measure, but above all because the serious indications of guilt, for obvious reasons, including systematic ones, can only be assessed on the basis of the activities carried out by the requesting State.
2.4. It follows that the criminal capacity of A.A., as assessed by the Court of Appeal of Rome on the basis of the measures issued by the Italian judicial authority, in relation to conduct also established in our country (pages 19-24, where A.A. is strongly suspected of being the instigator of murders and attacks committed with weapons of war, mainly abroad), is irrelevant in this case as it is unrelated to the subject matter of the present judgment, which is based solely on the examination of the evidence submitted by the requesting country in support of the extradition request.
3. With regard to A.A.'s membership of ethnic, religious, and political groups such as to make it likely that extradition to Turkey would result in the violation of his fundamental rights, the contested measure suggests that the person sought is exploiting these conditions, which are considered unproven in light of the rejection of the application for international protection issued by the Territorial Commission of Bologna and the content of the investigation carried out in the aforementioned criminal proceedings in Milan (pages 18-21 and pages 24-25).
3.1. The Court of Merit ruled out that the appellant is Kurdish and an Alevite Muslim because, during the interview before the Territorial Commission, he used the Zaza language without providing adequate reasons for his inability to communicate in the language of his ethnic group, he was unable to answer specific questions about his religion and had produced tweets from his social media profile from 2022, which were likely managed by others, given his detention at the time, with content relating to the PKK party and not the HDP party (page 20).
3.2. These are arguments, mainly the first one, which, by merely endorsing those of the Bologna Territorial Commission and in the absence of independent and targeted investigations, did not address the extensive documentation provided by the defense to prove the contrary, starting with the fact that A.A. was born in a Kurdish city, like his parents; that the Zaza belong to the same ethnic group as the Kurds; the various newspaper articles attached to the case file always refer to the person to be extradited as a Kurd; his membership of the pro-Kurdish HDP party and, in any case, his membership of the PKK (Kurdish Workers' Party), which, as is well known, are parties opposed to the current government of Turkey.
In addition, the aforementioned decision rejecting A.A.'s application for international protection has been challenged by him, with the same arguments also put forward here, before the Civil Court - and is still pending - as indicated in the contested measure itself (page 17), so that it cannot be considered definitively decided, even with regard to its findings, despite the absence of any prejudicial effect on the extradition proceedings.
3.3. In light of the above arguments, the extradition request in question requires the Court of Appeal of Rome to carry out further in-depth checks to rule out that this is a discriminatory act, disguised as a request for surrender in order to achieve persecutory aims on grounds of ethnic, religious, or political affiliation, which are relevant under the European Convention on Extradition.
4. The ground of appeal criticizing the respect for the fundamental rights of the person to be extradited in T and the full compliance with international standards of prison treatment to which he will actually be subjected at the prison in D is also well founded.
4.1. Numerous national and supranational authorities have, to date, dealt with the application of the Convention for the Protection of Human Rights in Turkish prisons and the conditions of detention of persons awaiting extradition in that country.
In particular, the Court of Cassation has already examined the question raised by the applicant (Section 6, No. 31588 of June 14, 2023, A.A., Rv. 285088) and other similar questions (Section 6, No. 54467 of November 15, 2016, Resneli, Rv. 268931), clarifying that, with regard to passive extradition to T, the detention conditions that will be ensured to the requested person must be assessed in concrete terms, pursuant to Article 705, paragraph 2, of the Code of Criminal Procedure.
In fact, since the attempted coup d'état of July 15, 2016, the application of the Convention for the Protection of Human Rights has been formally suspended in that State because the Government of Turkey, on July 21, 2016, in an official statement to the Council of Europe, declared that it would avail itself of the derogation provided for in Article Furthermore, arbitrary detention and widespread torture practices have subsequently been found within prison facilities, resulting in a high risk of inhuman and degrading treatment. Furthermore, arbitrary detentions and widespread torture practices have subsequently been found within prison facilities, resulting in a high risk of inhuman and degrading treatment, not only for political prisoners, with drastic restrictions on a number of the defendant's rights of defense in criminal proceedings and a significant increase in police powers (see Section 6, No. 26742 of 20/04/2021, Akdag, Rv. 281820).
This situation has been confirmed:
- by the European Parliament Resolution of February 8, 2018, on the human rights situation in T, paragraph 6 of which expresses deep concern “about reports of serious ill-treatment and torture of prisoners and calls on the Turkish authorities to conduct a thorough investigation into these allegations; reiterates its call for the publication of the report of the Council of Europe Committee for the Prevention of Torture (CPT)”;
- the European Commission's Communication on the European Union's enlargement policy in 2020, which highlights that T has further distanced itself from the EU due to its significant backsliding on democratic rules, the rule of law, fundamental rights and the independence of the judiciary, and expresses concern about the large number of opposition leaders, human rights activists, journalists, civil society representatives and academics arrested and detained under anti-terrorism legislation;
- the European Commission's report on Turkey of October 30, 2024, which in paragraph 2.2.1 (Chapter 23: Judiciary and fundamental rights) acknowledged that the 2019-2023 Judicial Reform Strategy and the 2021 Action Plan on Human Rights do not fully address the serious shortcomings of the judicial system, the lack of independence and impartiality of the judiciary from the executive branch, and the lack of the right to a fair trial, as highlighted in previous reports by the same Commission.
Furthermore, supranational institutions have reported a lack of progress in the field of human rights and the application of the ECHR, as further confirmed by the publication on March 20, 2021, of Presidential Decree No. 3781 declaring T's withdrawal from the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention), without parliamentary approval, which led to strong statements from the United Nations and the Office of the High Commissioner, as well as the Council of Europe. Of particular relevance to the assessments in question was also the failure to implement the judgments of the European Court of Human Rights finding violations of the right to respect for private and family life and the right to a fair trial, excessive use of force, and unjustified detention, to the extent that, in June 2024, the Committee of Ministers of the Council of Europe reiterated its calls on the Turkish government to comply with them, noting that there are 185 cases against Turkey subject to enhanced supervision by the Committee.
Further confirmation of the serious and persistent decline in fundamental rights in the requesting country can be found, most recently, in the judgment of June 18, 2024, of the Grand Chamber, Generalstaatsanwaltschaft Hamm v. Turkey, C-352/22 - concerning the extradition to Turkey of a citizen of Kurdish ethnicity who was a member of the PKK and had already been granted refugee status in another Member State - in which, in so far as is relevant here, reference is made to Article 19(2) of the Charter of Fundamental Rights of the European Union, which absolutely prohibits the removal of a person to a State where there is a serious risk of being subjected to the death penalty, torture or other inhuman or degrading treatment or punishment (see, to that effect, judgment of July 6, 2023, Bundesamt fur Fremdenwesen und Asyl (Refugee who committed a serious crime), C-663/21, EU:C:2023:540, paragraph 36 and the case law cited therein), establishing that Member States, in exercising their powers, must verify, before proceeding with any extradition, that the latter will not prejudice compliance with the principle of non-refoulement on the basis of objective, reliable, precise and sufficiently recent information.
4.2. In addition to these interventions by supranational institutional bodies, which demonstrate that no significance should be attached to Turkey's notification of the withdrawal of the suspension of the application of the ECHR, there are further elements to be taken into account regarding the systemic nature of serious human rights violations in prison treatment in that country and the state of fundamental rights in the judicial sphere, such as:
a) the report by Amnesty International—a non-governmental organization whose reliability is generally recognized at the international level—for the year 2022-2023, which revealed credible allegations of torture and ill-treatment of prisoners, preceded by another report of the same tenor (2019-2020), which allow us to conclude that this is a widespread and not isolated situation;
b) the reports of the Council of Europe's Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), which, following visits to Turkey in 2017 (periodic visit) and 2019 (ad hoc visit), confirmed both the existence of inhuman and degrading treatment of a large number of prisoners, and the very serious problem of prison overcrowding, which has a negative impact on many aspects of the lives of those detained (paragraph 84 on the visit carried out in 2017);
c) the Arrested Lawyers Initiative report on the repression of lawyers in Turkey, published by the National Bar Council in 2021; the document Platform for an Independent Judiciary in Turkey of December 29, 2022; the reported death in prison, after 238 days of hunger strike, of the Turkish lawyer of Kurdish origin, B. B., who was demanding a fair trial from the authorities; the 2024 and 2025 reports of the International Observatory of Lawyers (OIAD), all documents that have established and drawn the attention of the international community to the mass arrests and summary trials of Turkish lawyers;
d) the resolution of February 17, 2021, of the Superior Council of the Judiciary, which acknowledged the monitoring conducted by the ENCJ (European Network of Councils for the Judiciary), expressing concern about the undermining of the independence and autonomy of the Turkish judiciary, with reference to the statement of December 8, 2020, of the Executive Committee of the in which it renewed its solidarity with judges and prosecutors detained or sentenced without a fair trial and without just cause;
e) the conviction of the President of the now dissolved Association for the Union of Turkish Judges and Prosecutors and the classification of the International Association of Judges (EAJ) in Turkish criminal proceedings as a terrorist organization.
With specific reference to prison conditions, human rights violations, torture, and ill-treatment were reported, aggravated by widespread impunity for the officials responsible, as well as use of disproportionate force by security officers, the different treatment of political prisoners and the prohibition of contact with their lawyers and relatives for years, the arbitrary delay by the prison administration and the observation commissions in granting conditional release to prisoners, and the application of preventive detention even for crimes related to freedom of expression.
4.3. The European Commission's report of October 30, 2024, with specific reference to the Kurdish question, acknowledged: reports of human rights violations by security forces against Kurds; strong judicial pressure on journalists, political opponents, legal associations, and human rights defenders involved in their defense; the closure since 2016 of media outlets and institutions using the Kurdish language; the conviction, in the Kobane trial in May 2024, of 24 Kurdish politicians from the former pro-Kurdish HDP party; the failure to release the former co-chair of the HDP despite two rulings by the European Court of Human Rights calling for his immediate release.
4.4. Despite this picture, which can be obtained from open sources and institutional websites, the Court of Appeal in Rome ruled out that the person being extradited runs a real risk of inhuman treatment at the D prison, giving weight to the information provided by the Turkish government about the regime to which A.A. will be subjected in that facility, which is not in that facility, which were not outweighed by equally detailed and specific evidence to the contrary from international bodies and associations relating to that prison (pages 15 and 26).
These conclusions cannot be shared in light of the principles set out by the Court of Justice and, most recently, by the Grand Chamber in its judgment of June 18, 2024, cited above, which, in paragraph 63, with specific reference to Turkey, that the Member State, in the face of a declared risk of inhuman or degrading treatment, “cannot confine itself to taking into consideration only the statements of the requesting third country or the latter's acceptance of international treaties which guarantee, in principle, respect for fundamental rights. The competent authority of the requested Member State must base itself, for the purposes of that assessment, on objective, reliable, precise and sufficiently recent information, which may, in particular, be derived from international judicial decisions, such as judgments of the European Court of Human Rights, judicial decisions of the requesting third State, as well as decisions, reports and other documents produced by the organs of the Council of or bodies of the United Nations system (judgments of 6 September 2016, Petruhhin, C-182/15, EU:C:2016:630, paragraphs 55 to 59, and of 2 April 2020, Ruska Federacija, C-897/19 PPU, EU:C:2020: 262, paragraph 65).
Precisely in light of Turkey's systematic violation, for years, of human rights and fundamental freedoms, as established by independent institutional and non-institutional authorities in the terms indicated above, not only for prisoners but also for those belonging to the Kurdish ethnic group or opposition parties, it is necessary for the Court of Appeal of Rome to acquire clear evidence on both counts with regard to the current appellant.
5. It follows that the contested judgment must be set aside and referred back to another section of the Court of Appeal of Rome for a new judgment, so that it may fill the gaps in the evidence with regard to all the issues raised in the appeal.
P.Q.M.
The contested judgment is annulled and referred back for a new judgment to another section of the Court of Appeal of Rome.
The case is referred to the Registry for the formalities required by Article 203 of the Code of Criminal Procedure.
So decided in Rome on March 12, 2025. Filed with the Registry on April 16, 2025.