The judicial authority of the requested State must be able to verify, on the basis of precise and detailed information regarding the connotations of the re-educational path followed in the penitentiary institutions where the extradited person will be received, the reliability of the guarantee coming from the requesting State regarding the observance of the conventional standards provided for the purpose of respecting the principles established by art. 3 ECHR.
Court of Cassation
Section VI Criminal No. 9680 Year 2022
President: DI STEFANO PIERLUIGI
Rapporteur: DE AMICIS GAETANO
Date of Hearing: 26/01/2022 - filing 21/03/2022
on the appeal brought by
PP, born on **/1993 in Moldova
against the sentence of 21/10/2021 of the Court of Appeal of Milan
having regard to the deeds, the contested measure and the appeal;
having heard the report of Justice Gaetano De Amicis;
having read the conclusions of the Public Prosecutor, in the person of the Deputy Public Prosecutor General, Tonnaso Epidendio, who requested that the appeal be declared inadmissible.
1. With judgment of October 21, 2021, the Court of Appeal of Milan declared the existence of the conditions for extradition of PP, sent by the Ministry of Justice of the Republic of Moldova in execution of the international arrest warrant issued by the Court of E. on December 30, 2020 for the crime of murder committed in Donduseni, between December 18 and 19, 2020, against RR.
2. P's lawyer has appealed against this decision, claiming the erroneous application of art. 705, paragraph 2, letter c), code of criminal procedure, in relation to the risk that the extradited person will be subjected to inhuman or degrading treatment due to the prison conditions of the requesting State, having regard to the specific content of the documentation produced before the Court of Appeal (consisting of a report of the Association "Antigone" in 2015 and an opinion issued by the Committee for the Prevention of Torture of the Council of Europe in 2020), which attested to the actual conditions of the prison institution of Chisinau No. 13, indicated as a place of detention to which the applicant would be assigned in case of granting of extradition.
It is assumed, in this regard, that the documentation submitted by the Moldovan government in a note dated October 5, 2021 on the state of its prison system is erroneous in its assessment of greater reliability, since the information is devoid of external evidence, is only general and does not correspond to the real and concrete situation of the penitentiary institutions, compared to what actually emerged from the cited report of the Council of Europe of 2020. It cannot be excluded, according to the applicant, that in those institutes there are far more detainees than the indicated capacity and that the detainees do not receive any health care.
3. With an indictment sent to the Chancellery of this Supreme Court on January 10, 2022, the Attorney General concluded by requesting the declaration of inadmissibility of the appeal.
1. The appeal is well-founded and must be accepted in the terms and for the effects set out and specified below.
2. With regard to the content of the above-mentioned reasons for complaint, this Supreme Court has ruled in general terms, establishing the principle according to which, for the purposes of ascertaining the extradition ban provided for by art. 698, paragraph 1, of the Code of Criminal Procedure, it is necessary to establish that the condition as provided for by art. 698, paragraph 1, of the Code of Criminal Procedure, is not applicable to the accused.
At this regard, it is necessary to assess whether there is a general risk of inhuman or degrading treatment in the requesting country, using, to this end, objective, reliable, precise and appropriately updated elements on the conditions of detention in force there and, having verified the existence of such a risk, must carry out a targeted investigation, including through the request for additional information, in order to ascertain whether, in the concrete case, the person concerned by the delivery will be subjected, or not, to inhuman or degrading treatment (cfr. Sez. 6, no. 28822 of 28/06/2016, Diuligher, Rv. 268109).
It was also specified - with reference to a case concerning an extradition requested by the Republic of Moldova following the UN report of 21 December 2017 on the issue of prison overcrowding and the reports of 30 June 2016 and 13 December 2018 of the European Committee for the
prevention of torture of the Council of Europe, relating to that State - that, on the subject of extradition to foreign countries, in the presence of a situation of risk of being subjected to inhuman or degrading treatment attested by reliable international sources, it is the duty of the court of appeal, for the purposes of ascertaining the hostile condition provided for by art. 698, paragraph 1, cod. proc. pen, to request additional information aimed at knowing the prison treatment to which the extradited person will actually be subjected, pursuant to art. 13 of the European Convention on Extradition, even in the absence of defensive allegations in this regard (Sez. 6, no. 22818 of 23/07/2020, Balcan, Rv. 279567).
Similar principles were subsequently reaffirmed (Sect. 6, no. 31257 of October 6, 2020, Nastas) in the light of the most recent conclusions reached by the Committee for the Prevention of Torture (C.P.T.) of the Council of Europe in a report of 27th July 2020 published on 15 September 2020, which
the overall state of detention conditions in the requesting country, including those of the detention in the requesting country, including those relating to Prison No. 13 in Chisinau, on the basis of a monitoring visit carried out from 28 January to 7 February 2020.
In this regard, in particular, this Court observed, in the last-mentioned pronouncement, that, while acknowledging the achievement of concrete progress in certain areas of intervention already subjected to previous inspections by the
Committee, the aforementioned report expressed concern that several longstanding recommendations, in particular those focusing on violence and acts of intimidation among detainees, the regime applied to both persons in pre-trial detention and sentenced persons, and on the shortage of staff (health and supervisory) working in the prisons, were not taken into account, highlighting the unsatisfactory conditions in which, in general, the Chisinàu penitentiary institution finds itself in terms of repair, hygiene, ventilation, access to natural light and overcrowding in some cells, where an irregular distribution of prisoners was verified.
3. In examining the grounds for complaint formulated by the defense, the District Court complied with the above-mentioned principles, insofar as it ordered the acquisition, through the Ministry of Justice, of updated information from the competent authorities of the requesting state, so as to verify the current conditions of treatment in the relevant penal institutions.
From the reply note sent by the Ministry of Justice on October 5, 2021, in which the reply received from the Moldovan authorities was transmitted, it emerges that, for the first period of detention, scheduled in one of the cells of penitentiary no. 13 in Chisinau, specially prepared for Moldovan citizens extradited there, there is certainty of adequate detention treatment, since the living spaces are completely sheltered and have a minimum surface of four square meters per prisoner.
After the first period of 15 days from the arrival of the extradited person, which may be extended on the basis of circumstances not fully indicated, a transfer is foreseen - at the request of the person concerned or at the disposition of the same Penitentiary Administration - to another, unspecified, penitentiary institution, with a generic reference to the forms and modalities of restriction in a security structure which will have to respect the criteria of separate detention and those arising from the contingent of prisoners who will be jointly detained there, without however specifying how and to what extent.
The judicial authority of the requested state must be able to verify, on the basis of precise and detailed information regarding the features of the re-educational path followed in the penitentiary institutions where the extradited person will be received, the reliability of the guarantee given by the requesting state regarding compliance with the conventional standards laid down for the purpose of respecting the principles established by Article 3 ECHR, as interpreted in the case law of the European Court of Human Rights (cf, in motivation, the precedents referred to by Sez. U, no. 6551 of 24/09/2020, dep. 2021, Ministry of Justice - Department of the Penitentiary Administration, Rv. 280433).
On the basis of the conclusions recently reached by the C.P.T. In the light of the conclusions recently reached by the C.P.T. in the above-mentioned report, as well as of any further supplementary information focusing on the type of prison treatment that, specifically and concretely, should be reserved for the extradited person, the Court of Appeal will therefore have to re-examine the issues raised in the above-mentioned ground of appeal, taking as a parameter of assessment not only the aspect of overcrowding within the single cell intended for his reception, but all the critical profiles that have been the subject of the renewed recommendations addressed to the requesting State by the Committee for the Prevention of Torture of the Council of Europe.
4. On the basis of the above considerations, it is necessary, in conclusion, to annul the appealed judgment, limited to the assessment of the detention treatment reserved to the applicant by the competent authorities of the requesting State, with reference for a new judgment on this point to another Section of the Court of Appeal indicated above.
The Clerk's Office will carry out the formalities pursuant to art. 203 of the Code of Criminal Procedure.
Annuls the contested sentence with reference to another section of the Court of Appeal of Milan.
It is sent to the Clerk of the Court for completion of the tasks pursuant to Art. 203 of the Penal Procedure Code.
Thus decided on January 26, 2022 - lodged March 21, 2022