Firm profile
Firm profile


Defendant must raise inhuman detention conditions in first instance (Cass. 47148/23)

23 November 2023, Corte di Cassazione

Except when  a systemic, serious and current situation of risk for the extradited person has been already ascertained, under Italian law it must be considered necessary for the defendant to introduce in the first instance judgment  not only the subject of prison conditions in the requesting State but, in order to avoid following up mere conjecture or dilatory and exploratory questions, also elements that "dress" the prospected inhuman detention conditions with actuality and concreteness.

(Nicola Canestrini  was appointed as defense attorney after the first instance ruling; case is pending before the ECtHR)

unofficial machine translation 

Italian Supreme Court

Sec. 6 No. 47148 Year 2023


Hearing Date: 19/10/2023 - filed 23/11/2023


On the appeal brought by.
AS, born in ** on **/1977
against the judgment of 22/06/2023 of the Court of Appeal of Trento, dist. sec. of Bolzano
Having regard to the acts, the measure complained of and the appeal;
Hearing the report delivered by Councilor Ersilia Calvanese;
heard the requests of the Public Prosecutor, in the person of Deputy Prosecutor General Silvia Salvadori, who concluded by requesting that the appeal be granted with the annulment with referral of the judgment under appeal;
Hearing defense counsel Nicola Canestrini, who concluded by requesting that the grounds of appeal be upheld.

1. With the judgment indicated in the epigraph, the Court of Appeal of Trento, dist. sec. of Bolzano, declared the existence of the conditions for the acceptance of the extradition request made by the Government of Montenegro against AS for the purpose of his criminal prosecution for the crime of "creating a criminal organization."

2. The interested party appealed against the aforementioned judgment in cassation, denouncing, through counsel, the grounds for annulment, as summarized in accordance with the provisions of Article 173 disp. att. cod. proc. pen.

2.1. Violation of the law in relation to Articles 698, 705 of the Criminal Code, 117 Const., 3 ECHR and the concrete risk that the applicant will be subjected in Montenegro to inhuman and degrading prison treatment.
The defense points out that it was only after the delivery of the contested judgment that a report on the prison situation in Montenegro was published by the European Committee for the Prevention of Torture, in which important factors are highlighted that lead to the belief that the applicant will be subjected to treatment in prison that does not meet the minimum standards imposed by the ECHR.
In particular, that Report reported numerous very serious incidents of physical and psychological violence (actual torture) suffered by persons in pre-trial detention at the hands of the police, including for the purpose of forcing them to confess or cooperate with the investigation. The Committee stigmatized the fact that the Montenegrin authorities, although faced with complaints, did not initiate investigations to prevent or counter such violence (prison doctors allegedly concealed and did not document signs of such violence, preventing the investigation of crimes).
Other shortcomings were reported by the Committee regarding the fundamental rights of persons deprived of their liberty (contact with family, access to defense and medical care), especially if they are foreigners, and the material conditions of detention (high rate of overcrowding in connection with a potentially long duration of pre-trial detention; lack of minimum supplies for hygiene and maintenance of personal dignity).
The Committee noted how these violations of Article 3 ECHR-which have led to convictions by the EDU Court-have worsened or otherwise remained unchanged since the last visit in 2017.
Other bodies have reported the same torture suffered by people in pre-trial detention (Amnesty in March 2023; United Nations in August 2020).
It is therefore necessary to verify guaitesiano the specific conditions of custody guaranteed to the applicant once he is handed over for extradition.

2.2. Violation of the law and failure to state reasons in relation to the bilateral agreement on extradition between Italy and Montenegro of July 25, 2013, and the possibility of conditioning surrender on the execution in Italy of any sentence imposed in Montenegro.

 The Court of Appeals completely failed to consider the possibility of making the surrender conditional on the execution in Italy of any sentence imposed in Montenegro under the aforementioned treaty.
The appellant as an Italian citizen was not required to provide any additional factual element.

4. In a memorandum filed in view of the in camera hearing, the appellant's defense pointed out that the protection of human rights vis-à-vis the extradited person cannot be subordinated to any requirement even of a procedural order.
Along these lines is the most recent orientation of the Court of Cassation in considering it the duty of the court of appeals to verify ex officio the protection of the fundamental rights of the surrendered and in particular the prison conditions of the state applicant, particularly in the presence of Reports of the Committee for the Prevention of Torture.

In the case at hand, in addition to the Report on Montenegro already cited in the appeal, there were other "supervening" sources-attached-that demonstrated an endemic weakness of that state to fight crime and thus tolerate torture conditions in which detainees live.


1. The appeal is unfounded for the following reasons.
2. With reference to the first plea and to the brief filed, the legal question concerning the possibility of raising for the first time, with the appeal in cassation against the judgment declaring the existence of the conditions for extradition, the violation of Article 705, paragraph 1, lett. c), of the Code of Criminal Procedure with reference to the prison treatment to which the extradite will be subjected in the requesting State, must be addressed preliminarily.

2.1. First of all, it must be ruled out that it is up to the Court of Cassation to examine this point ex officio, since it involves evaluations and assessments of merit that must necessarily be carried out by the court of appeal.
It should be pointed out in this regard that the extension also "on the merits" of the cassation appeal provided for by Article 706 of the Code of Criminal Procedure against judgments deciding on extradition has only the function of submitting to the Court of Cassation grounds that also involve "the merits" of the assessments made by the court of appeal, so as to guarantee the parties a full double judgment.

 As the Supreme Court has repeatedly clarified, the review of the Court of Cassation is in any case limited to the "cartular" examination of information, as it stands, "already acquired" (Sec. 6, No. 25264 of 17/05/2018, Rv. 273418).

2.2. It remains to be seen, therefore, whether there is an obligation on the court of appeals to ascertain ex officio the prison conditions of the requesting state (so that the interested party can p point out the omission with the cassation appeal).

The jurisprudence of this Court appears to be absolutely homogeneous in holding that it is the burden of the interested party to allege in the judgment before the court of appeal pursuant to Article 704 of the Code of Criminal Procedure the existence of the risk of inhuman and degrading treatment (among many others, Sec. 6, No. 11492 of 14/02/2019, Rv. 275166; Sec. 6, No. 22827 of 26/04/2016, Rv. 267066; as well as many recent ones, including, Sec. 6, No. 22265 of 16/07/2020).

It should be pointed out in this regard that the maxims invoked by the appellant as an expression of a different orientation in reality do not appear faithful to the procedural events and principles affirmed by the Court of Cassation.

In particular, in the decision Sez. 6, no. 22818 of 23/07/2020, Rv. 279567, the Court of Cassation reaffirmed the existence on the extradite of a burden of allegation with reference to the hostile condition under consideration (in fact, Sez. 6, no. 38850 of 18/09/2008, Rv. 241261, in which the court had affirmed the need for the interested party to introduce into the proceedings useful elements regarding the existence of obstructive conditions not emerging from the documents), stigmatizing rather that the court of appeals had not followed up on the question introduced by the defense, deeming the sources cited in the appeal unreliable.

As for the decision Sez. 6, No. 18044 of 03/30/2022, Rv. 283157, the Court of Cassation merely quoted the maxim of the aforementioned judgment in a case in which the defense had raised before the court of appeals the issue of prison treatment in the requesting state.

Rather, this Court has held in some cases that review by the court of appeals was due, even in the absence of defense allegations, when the serious systemic situation of prisons in the requesting state was already found by several recent judgments of legitimacy (this is the case of Romania after Sez. 6, no. 23277 of 01/06/2016, Barbu, Rv. 267296)(on the subject of nn.a.e., Sez. 6, no. 51499 of 06/11/2017, in reasons).

In this vein stands the ruling icited by the appellant in the statement of defense / in which the Court of Cassation valued the circumstance that the same Court had had the opportunity "already ... repeatedly to highlight the critical aspects that characterize[va]no the prison system in Greece" (on the subject of EAW, Sec. 6, no. 30578 of 12/07/2023).

 Therefore, except for the hypotheses now examined in which a systemic, serious and current situation of risk for the extradited person has been ascertained, it must be considered necessary for the interested party to introduce in the judgment pursuant to Article 704 of the Code of Criminal Procedure not only the subject of prison conditions in the requesting State but, in order to avoid following up mere conjecture or dilatory and exploratory questions, also elements that "dress" the prospected violation of Article 705, paragraph 1, letter c) of the Code of Criminal Procedure with actuality and concreteness.

This exegetical solution is in line with the indications coming from the Court of Justice, in the Petruhhin judgment, Grand Chamber, 6/9/2016, C-182/15 on the subject of extradition to third countries. The Court of Justice, recalling the principles expressed in the Aranyosi-Càldàraru judgment (Grand Chamber, 5/4/2016, C-404/15; C-659/15 PPU) on the subject of the European arrest warrant, specified that the judicial authority of the requested state is obliged to assess the existence of the risk of inhuman or degrading treatment of detainees in the issuing state , when deciding on the surrender "when it has" elements attesting to the existence of such a risk in terms of concreteness. Elements that must be - taking the words of the aforementioned judgment - "objective, reliable, precise and appropriately updated on the conditions of detention in force" in the requesting State and "proving the presence of deficiencies either systemic or generalized, either affecting certain groups of persons, or affecting certain detention centers."

It should be noted for the sake of completeness that from the EDU Court's information page on the situation of individual member states only an isolated conviction of Montenegro in 2015 in relation to Article 3 ECHR for an incident of violence that occurred in 2009 by prison officers during a cell search, which was not adequately assessed by the competent authorities.

3. In light of the above, the other profile raised by the defense with the first ground of appeal, namely that of the "novelty" of the issue that would not have allowed the defense to deduce it therefore before the Court of alp ello, should be examined.

On this point, it is sufficient to note that it is the appellant himself who points out in the appeal that ultimately what was reported in the report of the European Committee for the Prevention of Torture of June 22, 2023 was not really "new; both because the same deficiencies had already been found in the past and because other bodies had reported similar violations also in recent times but in any case prior to the ruling of the court of appeals.
Thus, regardless of the content of the 2023 Report, according to the defense, both the European Committee for the Prevention of Torture and other international bodies in even recent times (but prior to the contested ruling) had raised certain critical issues about Montenegrin prisons.

4. The second ground is also unfounded.

The Bilateral Agreement of July 25, 2013 that supplemented the European Convention on Extradition, which entered into force between the Parties on August 9, 2015, to facilitate the extradition of nationals stipulates that trial-type surrender "may" be subject to the condition of resentencing to serve in the requested state the restrictive measure of personal liberty that may have been pronounced.
The rule is grafted into the Italian procedural system in which the decision on the extradition of the citizen is the sole responsibility of the Minister of Justice and to whom, therefore, it is up to, at the outcome of the citizen's deemed extraditable, the discretionary decision to attach the aforementioned condition.
5. In conclusion, on the basis of the foregoing, the appeal must be dismissed, with the appellant being ordered to pay the costs of the proceedings.
The Clerk's Office will make the necessary notifications.

Dismisses the appeal and orders the appellant to pay the court costs.
Directs the Clerk's Office to make the arrangements required by Article 203 disp. att. cod. proc. pen.