When the person subject to extradition ois able to evidence objective, precise, reliable and up-to-date elements,
regarding the detention conditions in the requesting state, capable of justifying the fear that her extradition preludes to treatment incompatible with the fundamental rights of the person, they cannot be not overcome by the generic reference of "reassuring information" received from the Russian judicial authority.
These assessments prove to be even more pregnant with reference to the recent dramatic developments of the war events in Ukraine.
If requesting state provides informs the requested state that an alternative to imprisonment prison sentence is possibile, beyond the Italian translation of its denomination ("hard labor" - "forced labour"), the judge has to assess if it refers to inhuman and degrading treatment.
Court of Cassation
VI Criminal Chamber
No. 10656 Year 2022
President: DI STEFANO PIERLUIGI
Rapporteur: GIORGI MARIA SILVIA
Hearing date: 01/03/2022
JUDGEMENT
on the appeal brought by
SA, born in Russia on **/1973
against the sentence of 16/12/2021 of the Court of Appeal of Milan.
Having regard to the deeds, the contested measure and the appeal;
having heard the report of Counselor Maria Silvia Giorgi;
having read the written indictment issued by the Public Prosecutor, in the person of the Substitute
Attorney General Pietro Molino, who concluded by requesting that the contested sentence be annulled
with referral of the contested sentence.
FACTS
1. With the appeled sentence the Court of Appeal of Milan declared that the conditions for the acceptance of the extradition request made by the Russian formulated by the Russian Confederation with regard to AS, reached
by an arrest warrant issued on February 11, 2021 by the Court of M in respect of the crime of "production, sale, storage or sale of products, performance of works or provision of services that do not meet safety requirements" committed in Russia from 8 to 23 April 2018.
In execution of this warrant, ** was arrested on June 4, 2021; the following day the arrest was validated and, considering the existence of the danger of escape, the Territorial Court ordered pretrial detention in prison, which was then replaced by house arrest on June 22, 2021, and finally (January 31, 2022) further weakened by the obligation to report to the Judicial Police. The extradited denied consent to extradition and did not waive the principle of specialty.
The Ministry of Justice asked for custody to be maintained and forwarded the extradition request submitted by the Government of the Russian Federation to the Prosecutor. At the hearing held on November 2, 2021, the Court of Appeals forwarded through the Ministry a request for information to the requesting state about prison conditions in Russia, which was followed by the transmission of a report by the Russian Federal Prosecutor's Office.
The S reiterated refused again to extradition.
The Court has represented the existence of the requirements for the extradition, pointing out the precautionary title issued by the requesting Authority, the "double criminality" and the the "double criminality" and the absence of obstacles to the title of the crime, being a common crime. The person to be extradited is in fact charged within the framework of an investigation for multiple culpable homicide in conspiracy with other subjects, in relation to deaths occurred in a private clinic, as a result of operations in which they were drugs harmful to health, purchased by the administrative department where S worked as an official, were used. In particular, S must answer for the crime of violation of the regulations on the production, sale storage or sale of products, performance of work or provision of services that do not meet the safety requirements of Article 238 of the Russian Federal Criminal Code.
The Territorial Court also found that there was no danger of persecutory or discriminatory acts and that the conditions of detention in the requesting country were satisfactory, as guaranteed by the note from the Russian Federal Prosecutor's Office forwarded by the Ministry of Justice.
Federal Prosecutor's Office sent by the Russian Ministry of Foreign Affairs on January 10, 2021, evaluating as generic the defense's deductions, including those on the health conditions of the extradited woman which, according to what has been stated, would not allow to be adequately treated. Not even the statement filed by the defense invalidated such conclusions, since the treatment indicated is a mere prospect, since it has not even begun, and is to be carried out in a private institution. Also with regard to the defensive indication about possible persecution or retaliation to which the extradited woman could be exposed as a former member of the KGB, these statements are not supported by concrete elements.
2. S has appealed against the above judgment, reporting, through her lawyer, with multiple and articulated grounds, violation of law and failure to state reasons with regard to:
2.1. the erroneous assessment of the existence of the conditions for extradition. The Territorial Court has committed a distortion of the fact, representing to have verified the existence of the conditions for the conditions for the acceptance of extradition with reference to a hypothetical illegal act different from the one alleged by the Russian Judicial Authority. The requesting authority does not not represent at all the connection between the death of patients of the clinic and the use of adulterated drugs; it does not appear that S has held administrative functions in the health institution administrative functions in the health institution, nor that she was deputed. It does not appear that S has held administrative functions in the healthcare institution, nor that she has been responsible for the purchase of harmful drugs; in fact, she is a partner and employer of M s.r.l. -operating at the clinic, together with another company, without, however, holding other operative, managerial or decision-making roles;
2.2. the failure to ascertain, in spite of the defence's allegations on this specific point, that the extradited woman was subject to criminal proceedings conducted in violation of the fundamental rights of defense and the right to a fair trial. Despite the fact that S has appointed three defenders in successive moments, the same was sent for trial without the same and his lawyers received no information, nor was her residence and actual abode verified.
She was then entered on the wanted list in the constant absence of her defense counsel.
The extradited woman did not have the opportunity to choose a lawyer in a delicate phase delicate phase such as the hearing for the application of pre-trial detention, given the participation of a public defender, although in the presence of a regular appointment of trust, with violation of the principles established by the ECHR;
2.3. the risk of being subjected to acts of persecution and / or discrimination because of political motivations, since it is a dispute of a common offense promoted, however, for essentially political purposes, since the extraditee -already a member of the Russian security services- has recently conducted a private a private investigation that would have uncovered serious activities of counterfeiting and illegal distribution and illicit distribution in Russian territory of an anesthetic drug, supported by high Russian high Russian authorities, so much so that in March 2021 the S has requested international protection protection from the Italian State in March 2021;
2.4. the prison conditions in the requesting state, which were devalued by the territorial court that did not evaluate the documentation submitted by the defense. The Russian authority, when asked for information, has represented the absence of deficiencies in its prison system and the respect for the rights of detainees, in contrast with numerous reports of non-governmental associations. The annual criminal statistics of the Council of Europe for the year 2020 also show that Russia is the European country with the largest number of prisoners in absolute terms.
There are also numerous procedures activated at the European level against Russia for the poor conditions in its prisons and allegations of torture, inhuman treatment and violations of fundamental rights, which have also resulted in sentences for violation of art. 3 ECHR. With particular reference to the two penitentiary institutions indicated by the Russian Authority where the applicant should be confinement (SIZO-1 and correctional colony 1K-1 in case of conviction) the defense has deposited copious documentation proving the very poor conditions, ignored by the brief pronunciation of the territorial Court;
2.5. the lack of importance of the deduction according to which the S, if imprisoned with ordinary detainees, could be subjected to inhuman or degrading treatment, because of of his past membership in the KGB, which should have
should have led to the identification of a prison -or at least of a block within the same - separate from ordinary prisoners, which does not appear to be present in the two institutes identified by the Russian Authority;
2.6. to the punishment to which the person to be extradited could be subjected with regard to the envisaged punishment of hard labour for up to five years provided for by provided by art. 238, paragraph 3 of the Russian Criminal Code as an alternative to imprisonment up to ten years. imprisonment of up to ten years. This is contrary to Article 4(2) of the ECHR and to Article 5, paragraph 2, of the Charter of Fundamental Rights of the European Union, as well as to evoke an inhuman treatment capable of determining a clear violation of of the fundamental rights of the person, which the Court of Appeal should have to ascertain;
2.7. the failure to take into account the precarious health conditions of the extradited woman, suffering from multiple sclerosis. The Court made a generic request to the Russian authorities a generic request about the "respect for health", without reference to the the health care that would actually be provided to the extradited woman in relation to the specific in relation to the specific pathology from which she is affected; under a different profile the
Territorial Court has not adequately assessed the compatibility of the health conditions of the health conditions with the same extradition procedure, with particular reference to the consequences of the transfer and the potential
particular reference to the consequences of the transfer and the potential interruption of therapeutic interventions that could not be postponed, especially in the light of the medical certification medical certification of December 15, 2021 from which it is clear that the treatment has not only been recommended, as stated in the judgment under appeal, but prescribed and represented as necessary.
3. On February 22, 2022, the defense of the extradited woman filed a statement (with attachments) with which it reiterates the proposed reasons, with particular reference to the risk of degrading treatment to which the applicant would be subjected and the health conditions that would not receive adequate attention in the Russian system.
Russian system.
4. The appeal was processed, pursuant to Article 23, paragraphs 8 and 9, dl. 28 October 2020, no. 137, without the intervention of the parties.
IN LAW
1. The appeal is founded in the terms described below.
2. The first ground of appeal is unfounded: the Court of Appeal has not made no confusion with regard to the crime ascribed to the extradited woman, stating that the in stating that she is charged "as part" of an investigation for manslaughter, whereas the specific the specific charge against the applicant is that of purchasing harmful drugs in violation of in violation of the legislation of the requesting State relating to product safety products, provided for and punished by Article 238 of the Russian Federal Criminal Code. Under different aspect, as to the administrative function allegedly held by the applicant, this is a question of merit, not open to review in the court of legitimacy.
3. As for the second and third reasons - which for the close connection are examined together- arguments are proposed relating to the political motive that would support the criminal proceedings opened, in the requesting State, against S, against S. Given that political persecution disguised in the form of criminal form of criminal prosecution for a common crime constitutes for our legal system - pursuant to Articles 3 and 13 of the Constitution and Articles 5 and 14 of the ECHR A - a mandatory ground for the rejection of an extradition request, in relations
relations that take place on a conventional basis, the requested party has the option of refuse extradition only if it has serious reasons to believe that there is a "disguised" extradition.
Therefore, where the content of the request do not show any grounds for believing that this danger is well-founded, there is a for the extraditee a burden of allegation of elements and circumstances suitable to founded on the fear that extradition in itself configures the violation of one of the fundamental rights of the person. In the light of these considerations, in view of the opinion expressed by the Court of Appeal - according to which in this case there is no evidence in this regard - the grounds of appeal are limited to re-propose the arguments offered in support of the "political motive" that however however, remain at the level of mere affirmation, without in particular indicating at what moment the when the territorial court would have failed to assess, or assessed in a manifestly illogical way, evidence manifestly illogical, evidentiary elements or at least seriously circumstantial of the plausibility of the persecution thesis. Hence the groundlessness of the complaints.
4. The fourth, fifth and sixth grounds of appeal are instead well-founded. The complaint of lack of motivation in order to exclude the danger of prison treatment in violation of prison treatment in violation of fundamental rights appears well-founded, not having not having been adequately confronted by the Court of Appeal with the allegations defense that, on this specific point, were supported by documentation needing verification.
The motivational commitment is not in this case is not limited, in order to The motivational effort is not in this case limited, in order to exclude its relevance, to the mere generic reference to the ministerial report.
The extradited woman has in fact fulfilled her duty to attach objective, precise, reliable and up-to-date elements,
precise, reliable and up-to-date information regarding the conditions of detention in force in the in force in the requesting state, capable of justifying the fear that her extradition preludes to treatment incompatible with the fundamental rights of the person (Sez. 6, no. 11492 of 14/02/2019, Lia, Rv. 275166) not overcome by the generic reference contained in the contested judgment to the "reassuring information" received from the Russian judicial authority.
These assessments prove to be even more pregnant with reference to the recent dramatic developments of the war events in Ukraine.
From a different point of view, it should be noted that in the field of extradition for foreign purposes of ascertaining the hostile condition provided for by art. 698, paragraph 1, cod. proc. pen., the Court of Appeal is required to verify whether the penalty provided by the legislation of the legislation of the requesting State, beyond its formal name,
actually consists in a treatment that violates the fundamental rights of the person (Sez. 6, no. 6, no. 7).
person (Sect. 6, no. 8616 of 30/01/2020, Smyshlyaev, Rv. 278459).
In this sense, the verification carried out by the Court of Appeal with regard to the
type of punishment provided for the offense subject to extradition trial
is deficient. The note sent to the requesting state by the Italian Ministry of Justice
The note sent to the requesting state by the Italian Ministry of Justice only had as its object supplementary information relating to the prison treatment reserved to the extradited woman. Instead, it had to be ascertained by
the Court of Appeal whether the penalty provided for by the Russian Criminal Code as an alternative to imprisonment prison sentence - beyond the Italian translation of its denomination, ("hard labor
("forced labour"), which seems to evoke an inhuman and degrading treatment, actually consists in inhuman and
inhuman and degrading treatment - actually consists of a treatment that violates the
fundamental rights of the person, as such hostile to extradition on the basis of art.
698, paragraph 1, code of criminal procedure and 705, paragraph 2, letter c) code of criminal procedure.
5. Finally, the remaining objections concerning the compatibility of the extradition request with the
compatibility of the request for extradition with the health conditions of the applicant's health conditions, in the light of the clinical documentation attached by the defense, to which the Territorial Court responded with inadequate reasoning, simply referring to the experimental nature of the treatment and referring to the experimental character of the treatments and their hypothetical nature, in the face of serious certification issued by a medical specialist operating at the Hospital San Raffaele Hospital in Milan, which also provides a precise schedule of the therapies to be therapies to be carried out as soon as the results of the examinations already prescribed are received.
The jurisprudence of legitimacy has been able to clarify, on the subject of extradition for foreign countries, that the Court of Appeal must evaluate, also through the the request for additional information, the circumstances alleged by the interested party regarding the risk of being subjected to inhuman or degrading treatment acquiring "individualized" information on the detention regime that will be the extradited person, assessing, in addition to the general conditions of detention existing in the prisons of the requesting state, the health and age of the extradited person in relation to age of the extradited person in relation to the specific conditions of detention, and if necessary, requesting guarantees regarding the possibility that the person concerned
can continue to be treated in the prison facilities of the requesting state. (Sez. 6, no. 8078 of 09/02/2021, Olgesashvili, Rv. 280709).
6. In the light of the foregoing considerations, the judgment appealed should be
therefore annulled with referral to a different section of the Court of Appeal of Milan
for a new judgment with regard to the points relating to prison treatment and health conditions.
health conditions.
P.Q.M.
Annul the appealed sentence and refer the case back to a different section of the Court of Appeal of Milan for a new judgment.
Instructs the Clerk of the Court to carry out the formalities pursuant to art. 203 of the Code of Criminal Procedure.
penal code.
Thus decided on 01/03/2022 - (24) March 2022