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Disproportionate and risk for fundamental rights: EAW rejected (Milan Court, 2023)

28 March 2024, Milan Court of Appeal

The principle of proportionality, protected by Articles 6, 7 and 52 of the Charter of Fundamental Rights of the European Union as well as Articles 5, 8 of the ECHR, as applied to the European Arrest Warrant provides for a balance between the need for security and punishability and the protection of fundamental rights including that of the coercive restriction of liberty, in this one in prison under potentially risky condition.

In the face of the allegation of legitimate concerns of possible violations of fundamental rights, the judicial authority of the executing state has, inter alia, the tasks, not alternative but cumulative, of both appreciating the merits of the concerns about the risks of deprivation of fundamental rights of the person concerned, and of cooperating loyally in order to determine whether other instruments of judicial cooperation in criminal matters, alternative to the European Arrest Warrant, are applicable.

Additional generic information, even if declarative of the compliance  of domestic provisions regarding prison treatment, cannot supplant the concrete verification of the material conditions of detention specifically provided for the requested person.

(non official machine translation)

Court of Appeals of Milan
JUDGMENT 155/23 dd. March 28, 2024

In proceedings for the surrender of:

1.    XXX, born in MILAN on **.2000, unique identification code ***,

in custody from 21 to 22.11.2023 in the Milan San Vittore Francesco Di Cataldo District House, since then in detention for these proceedings under house arrest in MILAN, XXX; present;

-  with domicile declared in MILAN XXX, just record of the hearing of 21.11.2023, until then condominium elected at his own defense below, just record of identification on the same date;

- defended in confidence by Attorneys Mauro STRAINI and and Attorney Eugenio LOSCO, just appointed on 21.11.2023, present;

                11.2023 issued by BUDAl KOZPONTI KERULETI BiR6SAG, for three


committed on I0.02.2023 in Budapest, of attempted life-threatening bodily injury under Article 164 Hungarian Criminal Code, committed as part of a criminal organization under Article 459 Hungarian Criminal Code.

As a result of today's in camera hearing, having heard the Magistrate Rapporteur Dr. Stefano Caramellino, noting the absence of statements from the interested party present, having heard the Prosecutor General Dr. Cuno Jakob TARFUSSER, having heard the defense, the parties CONCLUDE as follows:

Prosecutor requests: non-surrender.

Defense of the requested person requests: non delivery.

Conduct of the trial.

I. The requested person, who is an Italian citizen, was identified by means of an Italian identity card and therein stated that she resided in MILAN *** (record of identification 21.11.2023).

Ella never requested to be admitted to legal aid.

The requested person was arrested on 21.11.2023 because, while she was staying at her home, the alert present against her in the international police cooperation system Sirene (police record, arrest report) was followed up. An arrest warrant issued on Oct. 30, 2023 by the Republic of Hungary exists against him.

His arrest was validated in relation to each of the crimes listed in the heading of this judgment, with simultaneous application in relation to it of the precautionary measure of house arrest, with prohibitions on communication, in order to cope with the alleged danger of flight (orders that are embodied in the record of the hearing 22.11.2023). In the course of the execution of this measure, the personarichiesta's personal and telephone contacts, by voice and by text message, with his parents, who are not cohabitants, were permanently authorized (order 05.12.2023); the remaining communication prohibitions were confirmed by order dated 18.01.2024, in rejection of a defense petition aimed at their removal.

The arrestee stated that he did not consent to surrender and did not waive the principle of specialty (minutes of the identification hearing).

The European Arrest Warrant was received with its Italian translation on 11/24/2023.

The. Having heard the parties at the hearing on 05.12.2023, set on the fifteenth day after the arrest, in light of the defense productions and the hearing schedule the Court extended the time limit for the decision under Article 17 Law 69/2005 updating its decision to 12.12.2023, when by reasoned order under Article 16 same law it asked the issuing state for the following information:

1)  the legal deadline, if any, the deadline usually ordered by the courts and the de facto deadline observed by the interpreters for the delivery of the translation of the basic procedural documents to the European citizen defendant who does not speak, read or understand the Hungarian language, but another language of the European Union;

2)  the legal regulation of interviews with close relatives of detainees and correspondence;

3)  the legal regulation of the mercede and peculium of prisoners and their admission to work programs, including within the prison establishment;



5)    the penitentiary or penitentiary establishments in which the person requested to be surrendered may be detained, if surrendered; in particular, whether he/she may be held in BUDAPEST Prison II, located at GYORSKOCSJ UTCA, 25; whether and from when and until when he may be placed in an establishment qualified by the CPT of the Council of Europe as a "remand prison"; the contingent of prison personnel present on duty today in each of the penitentiary establishments in which the person requested to be surrendered may be held, if surrendered;

6)  the actual factual conditions regarding the amount of space available per inmate, as of today's date, and the ratio of detention capacity to actual inmates, in each of the institutions referred to in item 5 above



8)    whether there are any ongoing projects or specific initiatives or activities of the Prison Administration on the health of inmates, including food, and hygiene in detention spaces, as well as for the conduct of educational or communicative activities while in detention;

9)    whether and what initiatives have been/are taken at the national level to guarantee or promote the independence of the judiciary, due process including the presumption of innocence and fundamental rights after the adoption of the European Parliament Resolutions 2018/0902R (NLE) of 09/15/2022, 2023/2691 (RSP) of 06/01/2023.

he deadline for sending the requested information was set on 11.01.2024, in view of the hearing on I6.0I.2024 set within the sixty-day time limit pursuant to Article 17 (3) Framework Decision2002/584/JHA. At that hearing, the requested information not having been received, this deadline was extended to30.01.2024, in granting a request by the issuing state in turn motivated by the need ditranslate from the Hungarian language the information collected; the reasoned extension order in turn took into account the 9-day extension by which the Ministry of Justice had transmitted the English translation of the order issued by this Court on 12.12.2024. With the extension orderthis Court immediately informed the Minister of Justice of the deferment and the reasons for it, pursuant to Article 22-bis Law 69/2005; also for precautionary purposes, it ordered the extension of the time limit for the completion of the proceedings by 30 days, pursuant to Article 17 (4)Framework Decision 2002/584/JHA.

The issuing state submitted two separate responses to the request for information, one relating to matters within the jurisdiction of the prison administration, the other relating to any other aspect requested. Having read the additional defense briefs and heard the parties at the hearing on 13.02.2024, this Court issued a second reasoned order under Article 16 Law 69/2005, asking the issuing State "to determine whether other instruments of judicial cooperation in criminal matters, other than the European Arrest Warrant, are applicable, which are suitable to ensure the exercise of prosecution by you, with the necessary investigative acts, and to meet the requirements of precautionary measures"; it made explicit reference to Council Framework Decision 2009/829/JHA of 23. 10.10.2009 "on the application between the Member States of the European Union of the principle of mutual recognition to decisions on alternative measures to pre-trial detention". With the further rulings, this Court has fulfilled the requirements of Article 22-bis, paragraph 2 Law 69/2005, also in matters of precautionary detention.

On 04.03.2024, the response of the issuing state's prosecuting judicial authority was received, well before the final deadline specified by this Court for the receipt of the requested determinations and any intervening information. On Saturday, 03/23/2024, within the prescribed time limit, the defense filed a brief. On Monday, 25.03.2024, the Ministry of Justice executed the communication to Eurojust (m_dg.DAG.25/03/***.U). Eurojust opened the cooperation procedure "ID ** AI SM: Ref. Min. 33***23 El dated 25.03.2024."

Reasons of fact and law

I. It considers its territorial jurisdiction under Article 5, paragraph 2 Law 69/2005, since the arrested person has in this District his residence in MILAN,**.

II. The person drawn by the European Arrest Warrant is not protected by any immunity, pursuant to Article 17, Paragraph 3 Law 69/2005.

III. Having regard to the information referred to in Article 6, Paragraph I Law 69/2005, this is a procedural European Arrest Warrant, since the detention title is given by an arrest warrant, issued on the day 30.10.2023 by the Metropolitan Public Prosecutor's Office of BUDAPEST in the proceeding with identification number NF.*** (letter C). The requested person is an Italian national (letter A). Eachreaction to which the European Arrest Warrant relates is outlined, as to its nature and legal qualification, in the terms indicated in the header of this judgment (letter D).

The time, place, degree of participation of the requested person and the circumstances of the three offenses committed, to the detriment of as many distinct offenders, are described in the European Arrest Warrant (Letter E), to the reading of which we refer, consistent with what was translated to the requested person during the interrogation prior to the validation of his arrest on the basis of the most concise indications contained in the form used for the purposes of police cooperation, which is reproduced here:

"the 2017 JG and his companion LE established an organization in L with /a purpose of attacking and assaulting people, those who are of the far-right propaganda and who also support fascist militants or of Nazi ideology, this organization with the use of tools suitable to cause danger of life practiced together its strategy of attack. Members of this organization together with members of 1111 anarchist movement from Milan who arrived in Budapest on 10/02/2023 organized the attack to target the far-right people who were members of the Day of Honour (Tag der Ehre) and the siege of Budapest on 11/02/1945. on 10/02/2023 at 11:55 a.m. WP and 7 others of this group saw the victim in Budapest, observed the victim's clothes and backpack, they were certain that the victim is sympathizing with the far-right ideology. They started to follow him. An accomplice asked the victim if he had organized areie de 'hike organized in memory of the fall of German and Hungarian soldiers who had been killed by the Soviets. The victim rfapted that he could not go however some friends would go there. Then the group decided to auach the victim. One of them hit him from behind the victim at the tesla with a telescopic rod as many as 4 times. The victim tried to escape however he fell down. The group circled him and started hitting and kicking him. Some members of the group kept pushing the villima to the ground, so he was unable to get up. The attack lasted about 30 seconds. One of them sprayed the victim with tear gas and ran away. The victim hariported serious injuries with breaking 3 ribs and also had several bruises on his torso and head. The gas injured the cornea. Considering the time of the assault and the method of the assault, it was only by chance that the vi/lima did not suffer any life-threatening injuries, especially taking into account the injuries on her head. The victim's phone was damaged.

On the same day around 10 p.m., WP and 1O members of the organization (with founder JGn) were in a pub for a private event of far-right sympathizers. Around 11 p.m., the group split into 2 small groups. WP and 5 members begin to follow 2 German citizens from the pub to their home. While the victims were looking for the codes to open the gate the group attacked them and started beating the victims with a telescopic pole and rubber hammer aiming at the tesla and legs. After 30 seconds, the perpetrators sprayed the victim with tear gas, then fled. The victims sustained several bruises on their heads and legs. These injuries were light regarding the method. The tools were used by the perpetrators targeted on body parts, were directed to be harmful to cause serious injury or danger to life."

The expected edictal penalty in the Issuing State ranges from an unspecified minimum to 16 years' imprisonment (letter F), as the Issuing State's law provides a specific incriminatory case for "life-threatening injuries."


IV.I. Each fact to which the detention order covered by the European arrest warrant refers is

provided for as a crime also in the Italian legal system.

Malicious crimes of bodily injury are provided for and punished in Italy by Article 582 of the Criminal Code, with an edict of 6 months to 3 years' imprisonment, and in the issuing state by Article 164, paragraph 8, subsection I of the Criminal Code, with a term of imprisonment of not less than, in its maximum, 12 months, but rather between a minimum edictal sentence of 2 years and a maximum edictal sentence of 8 years' imprisonment. In fact, Article IO Hungarian Criminal Code provides for attempted crimes the same penalty as the corresponding consummated crimes. The prosecutability on complaint by the offended person, which is provided for in Italy for injuries with an illness not exceeding 40 days, does not invalidate the configurability of double criminality, a notion that has regard to the legal indictment and not to punishability in concreto.

Participation in a criminal organization entails in the system of the issuing state, pursuant to Article 91, paragraph 1 of the Criminal Code, the doubling of the maximum sentence, which thus rises to 16 years' imprisonment, subject to the minimum sentence of 2 years' imprisonment. The notion of criminal organization in the system of the issuing state is therein outlined by Article 459, Paragraph I point I of the Criminal Code, which defines criminal organization as "a group consisting of at least three persons, hierarchically organized, for a fairly long period, functioning in a conspiratorial manner, the purpose of which is the commission of intentional crimes for which the penalty is imprisonment of five or more years." This definition has significant adherence to that of the criminal association outlined in Article 416 of the Criminal Code. This Italian incriminating case also provides for a legal number of three persons, an organizational element, a finalization for the commission of crimes, as well as connotations of group stability and indeterminacy of the criminal project, which present logical-legal similarities with the descriptive notes of "conspiratorial operation" and "rather long period" present in the Hungarian incriminating provision.

TV.2 In addition, since in the issuing state crimes are prosecuted punishable by deprivation of liberty for a term whose maximum sentence is not less than 3 years, it is relevant to note that the incriminating cases charged in the European arrest warrant of a procedural nature against the requested person fall within the catalog of Article 2 (2) Framework Decision 2002/584/JHA, referred to by Article 8 (1) Law 69/2005.

Ln particular, the above-mentioned notion of "criminal organization" referred to in Article 459, paragraph 1 point 1 Hungarian Criminal Code falls under the category of "participation in a criminal organization," referred to in the first introductory paragraph of the aforementioned catalog.

The fourteenth alinea of that catalog, which provides not only for voluntary manslaughter, but also for "grievous bodily harm," certainly includes the incriminating provision charged against the requested person, which consists of the general definition of the crime of injury as an offense "to the physical integrity or health of a person," pursuant to Hungarian Criminal Code Article 164(1), and the qualifying note of the "potentially lethal" character of the bodily injury.

The requested person is an Italian citizen, but it does not appear that he was blamelessly ignorant of each normative provision of the issuing state: these are in fact basic normative provisions, corresponding to elementary rules of coexistence.

Consequently, the prerequisites for surrender, which are provided, moreover, even in an alternative way, by Article 7 and Article 8 Law 69/2005, are jointly met.

V. The hypotheses of refusal of surrender provided for by Article 18-bis, paragraph 2 and Article 18-ter Law 69/2005, to be read in conjunction with Article 6, paragraph I-bis the same law, are excluded, since the European arrest warrant is not executive in nature, but procedural, in the sense that against the person requested for the facts covered by the European arrest warrant there is not an executive judgment, but a domestic arrest warrant issued by a judicial authority of the issuing state pursuant to Article I, paragraph 3 Law 69/2005.

There is no ground for refusal to execute the European arrest warrant, neither mandatory nor optional, under Articles 18, 18-bis, letters A, B Law 69/2005.

In fact, there are no amnesty laws applicable to the three facts of malicious injury committed on 10.02.2023; with respect to the requested person, who was of age at the time of the facts, no irrevocable criminal judgments or decrees have been issued in Italy, nor judgments of non-suitability no longer subject to appeal. There are no judgments issued against the requested person, even for the same facts, in another member state of the European Union.

There is no lis pendens and the European Arrest Warrant concerns offenses that even by Italian law are considered totally outside its territory and places assimilated to its territory, since they are on the contrary crimes committed in the territory of the issuing state.

VI.I. Pursuant to Article I, paragraph 3-bis Law 69/2005, there is no record that with respect to the issuing State the Council of the European Union has suspended the implementation of the mechanism of the European arrest warrant for serious and persistent violation of the principles enshrined in Article 6(1) of the Treaty on European Union within the meaning of point (10) of the recitals of the preamble to the Framework Decision. Therefore, the prohibition of the execution of the European Arrest Warrant dictated by Article 1, paragraph 3-ter Law 69/2005 does not apply.

Nevertheless, the Court is officiated to apply Article 2 Law 69/2005, which in its text as amended by Article 2, Paragraph I of Legislative Decree 10/2021, in force as of 05.02.2021, reads as follows: "The execution of the European Arrest Warrant may not, under any circumstances, entail a violation of the supreme principles of the constitutional order of the State or of the inalienable rights of the person recognized by the Constitution, of the fundamental rights and fundamental legal principles enshrined in Article 6 of the Treaty on European Union or of the fundamental rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on November 4, 1950, made enforceable by Law No. 848 of August 4, 1955, and the Additional Protocols thereto." This provision is in regulatory continuity with the former Article 18, paragraph 1, letter H of the same Law No. 69 of April 22, 2005, which was repealed by Article 12 of Legislative Decree No. 1O of February 2, 2021. Like that earlier and more specific provision, still the amended Art. 2 of the aforementioned law entails the dutiful "refusal of surrender where there is a risk of subjecting the surrenderee to inhuman or degrading treatment," if that risk has not been dissipated by the "supplementary investigations aimed at verifying the conditions of detention" (Cass. 14/04/2021 Cc. - dep.15/04/2021, no. 14220). The refusal, where pronounced, must be understood to be "in the state of the record" (Cass. 08/11/2023 Cc. - dep. 09/11/2023, no. 45291).

This state norm, in its cited and unambiguous interpretations by the Supreme Court cli Cassation, transposes and transposes into domestic law, as a parameter of judgment, the fundamental rights as interpreted by the jurisprudence of the European Court of Human Rights. On the other hand, the executing state has a duty, not only to the European Union under Articles 1, 4 Charter of Fundamental Rights, but also to the additional states party to the European Convention on Human Rights under its Article 3, to ensure that the person targeted by the European Arrest Warrant will not be subjected to either torture, inhuman treatment, or degrading treatment, as these prohibitions are absolute in nature on an internationalpublic basis (Court of Justice of the European Union, Decisions C-220/18 PPU ML (168), C- 128/18 Dumitru-Tudor Dorobantu (169), C 220/18PPU, ECLI: EU:C:2018:589).

The rejection of the surrender can, however, take place only in the coexistence of two prerequisites: the existence of proven critical issues in the prison system of the issuing state, giving rise to a real risk of inhuman or degrading treatment or serious prejudice to other fundamental rights; the existence of a proven potential impact of these critical issues on the situation of the requested person, specifically (Court of Justice of the European Union, Grand Chamber, April 5, 2016, Joined Cases C-404/15 and C-659/15, Pal Aranyosi and Robert Càldararu; Court of Justice of the European Union, Grand Chamber, April 18, 2023, Case C-699/21 EDL). This twofold assessment must be carried out bearing in mind that in principle it is the duty of the judicial authority of the executing state, pursuant to Article 1 Framework Decision 2002/584/JHA, to execute any European arrest warrant on the basis of the principle of mutual recognition where the conditions outlined in that Framework Decision are met; that general principle is fundamental to the realization of a common European area of freedom, security and justice under Article 3 Treaty on European Union; whereby the interpretation of the relevant rules cannot have as its effect the systematic creation on a pretextual basis of areas of substantial impunity within the Borders of the European Union, let alone on a national basis.

In the face of the allegation of legitimate concerns of possible violations of fundamental rights, the judicial authority of the executing state has, inter alia, the tasks, not alternative but cumulative, of both appreciating the well-foundedness of the concerns about the risks of deprivation of the person concerned of fundamental rights, and of cooperating loyally under Article 4 (3) of the Treaty of the European Union with the authorities of the issuing state (Court of Justice of the European Union, Decision C-158/21 Puig Gordi and Others, ECLI: EU:C:2023:57), in order to determine whether other instruments of judicial cooperation in criminal matters, alternatives to the European Arrest Warrant, are applicable (European Commission, Handbook on the issuance and execution of a European Arrest Warrant, 17. 11.2023, C(2023) 7782 final, chapters 4.4., 5.7, 5.8).

VI.2 . With the order 12.12.2023, summarized above in the exposition of the course of the trial, this Court fulfilled what the national jurisprudence of legitimacy has defined as the "burden of requesting supplementary information from the issuing State, aimed at knowing the prison treatment to which the surrendered person will be concretely subjected," a burden that arises "in the presence of a situation of risk of being subjected to inhuman or degrading treatment during the detention regime, attested by reliable international sources" (Cass. 16/11/2022 Cc. - dep. 18/11/2022, no. 44015).

In the second interlocutory order, this Court indicated a deadline not only for the communication of the judicial authority of the issuing state's determinations regarding the possibility of resorting to different and less intensively restrictive instruments of cooperation than the European Arrest Warrant, but also for the receipt of any possible further information.

At the time of holding this council chamber, 2 p.m. today 28.03.2024, the report of the Commission for the Prevention for Torture of theCouncil of Europe of the periodic visit to the detention facilities of Hungary, which took place from 16/05/2023 to 26/05/2023, has not yet been published.

The term of 180 days from the arrest, of the maximum total duration of the precautionary measure functional to ensure the surrender, if due, implies the impossibility of suspending laconsignation, what would lead to a deferment of the procedure, but not its definition.

All that remains, then, is to appreciate on the merits, in light of the information provided by the issuing state in the face of the defensive arguments and productions, the merits of the fears of real risks of deprivation of the person concerned of fundamental rights, according to the interpretative coordinates outlined in the above-mentioned judgments (henceforth, by antonomasia, "the risk"). In carrying out such an assessment, account must be taken of the temporal perspective implicit in the system of the procedural European arrest warrant, which allows the executing state for its own citizens and residents over five years old, hence precisely this Court in the case under consideration today, to make the execution of the European arrest warrant  "to the condition that the person, after having undergone the trial, be returned to the Italian State to serve the sentence or security measure deprivation of liberty that may have been applied against him in the issuing Member State" (Article 19, paragraph 2 Law 69/2005). In essence, the assessment of the risk under consideration must be parameterized to the prospect of a surrender for only the duration of the degrees of judgment necessary and sufficient for the formation of the judgement, in the prospet1ve of a subsequent return of the surrendered person to Italy for the execution of the sentence in his homeland, or of the obvious recovery of freedom of movement in the event of an acquittal.

In short, it is basically a question of assessing whether today the surrender to Hungary of the requested person, with the specificities that characterize him also in relation to the criminal acts ascribed to him, would entail in the time necessary to reach a verdict the exposure of him to a real risk of violation of his fundamental rights. Such must be understood to mean both the risk of inhuman or degrading treatment and the risk of a significant reduction in his life expectancy or a rapid, significant and irreparable deterioration in his state of health (Court of Justice of the European Union, Grand Chamber, April 18, 2023, Case C-699/21 EDL, Const. Court 177/2023, para. 5.5.3).

Vl.3. The reliability of international sources affirming the existence of the risks under consideration cannot be doubted.

By Resolution (2024/2512(RSP) dated 16/1/2024, the European Parliament renewed its concern about the deterioration of the rule of law and fundamental rights situation in Hungary. It considered the failure to respect the values enshrined in Article 2 TEU as established with particular reference to minorities, vulnerable groups and independent opponents.

Additionally, regarding the situations in Hungarian prisons, the documentation filed by the defendants includes up-to-date information compiled by the nongovernmental organization for the protection of human rights Hungarian Helsinki Committee, as well as reference to the many convictions of the European Court of Human Rights related to cases of detention in various Hungarian penal institutions, and againthe most recent published report of the Council of Europe's Committee for the Prevention of Torture (henceforth referred to by its notorious acronym, CPT), concerning its visit from November 20-29, 2018 to prisons in Budapest and Szeged.

Vl.4. Overcrowding in Hungarian prisons was noted by the CPT in its 2018 visit and reported as a problematic element.

The Report indicates that Hungarian authorities appear to have taken action to address the long-standing issue of prison overcrowding and its negative impact on the daily lives of inmates. The issue has been examined by other bodies in recent years and in particular by the European Court of Human Rights. Although this problem was not the subject of attention during the periodic visit in 2018, Hungarian government representatives and prison directors met with the delegation showing a strong determination to achieve the goal of "zero crowding" in prisons in the future, since at the same time it attests to the existence of the problem at the time of the last CPT visit whose report is public. The executing judicial authority, moreover, cannot exclude the existence of a real risk of inhuman or degrading treatment merely because there are legislative or structural measures in the issuing state designed to strengthen the control of detention conditions (see European Commission, Handbook on the Issuance and Execution of a European Arrest Warrant, 17.11.2023, C(2023) 7782 final, chapter; a similar consideration cannot but be made with respect to the prospect of future structural improvements.

li figure of overcrowding noted by the CPT in 2018 is particularly significant at a time when Hungary still emerges among the countries with the highest rate of prisoners in relation to population (see University of Lausanne, Prisons and Prlsoners in Europe 2022: Key Findings ofthe SPACE I survey, sponsored by the Council of Europe, updated 6/26/2023).

According to the nongovernmental organization Hungarian Helsinki Committee for Human Rights, in a recent report sent to the Council of Europe, the condition of prison overcrowding and prisons in Hungary remains alarming despite numerous condemnations by the European Court of Human Rights (Hungarian Helsinki Commillee - communication dated 12/17/2023).

Vl.5. Other major deficiencies found by the 2018 visit such as the support of medical staff and the administration of instrumental examinations, particularly after incidents of violence between inmates or by prison staff (p. 49).

In the cases dealt with by the European Court of Human Rights (as an example Court EDU Cases: Tamàsi et al. v. Hungary 7/1/2016; Balogh et al. v. Hungary, 10/12/2015; Polàr et al. v. Hungary 10/12/2015; Varga et al. v. Hungary, 10/3/2015; Ligeti et al. v. Hungary 10/12/2015), the conditions in the various Hungarian penitentiary institutions showed significant deficiencies in essential services.

Just to mention a few paradigmatic elements: latrine not separated from the cell (appellant Balogh), insect infestation and only cold water (appellant Toth), shower only once a week, insufficient natural light (r. Pataki), bedbugs (r. Nagy), insufficient number of beds per cell (r. Zuchlag).

The systemic deficiency under consideration here is particularly impactful in the actual case in light of the personological characteristics of the subject requested to be surrendered.

This is a young man with a fixed abode, a regularly employed worker, totally unknown to Italian penitentiaries and who does not appear to have had not only previous prison experience but also previous problems with the justice system; his incensorship is positively apparent. He has always appeared in court in good order, very punctual and with a reserved and courteous demeanor.

In the light of the conditions in which he has always presented himself to the judicial authority, there is reason to believe that a placement of the requested person in a living environment, even if temporary, characterized by noticeably deficient hygienic conditions would be perceived by him as particularly degrading and would entail a real risk of appreciable impact on his mental condition.

Vl.6. As for language, moreover, the requested person does not speak any language other than Italian (see identification report of 21/11/2023).

He would face serious communication deficits with other inmates and prison staff, with the serious consequence of not being able to deal with even basic needs of daily life. In fact, no indication emerges from the issuing state's information about the training and local language opportunities offered to inmates, nor any help for this purpose as provided in points 7 and 8 of Recommendation CM/Rec(2012)12 of the Committee of Ministers to Member States on Foreign Prisoners.

Vl.7. Additionally, in the isolation that the surrendering person would therefore de facto face, it is necessary to assess the possible risk of violation of Article 8 of the European Charter of Fundamental Rights.

In this case, first of all, no regulations regarding the certainty of access to family visits and interviews, as well as the guarantee of non-interference in family life, appear in the information rendered by the issuing state.

Secondly, the remoteness and segregation of the person concerned in a place distant from the place of entrenchment, without certainty of regular possibility of at least family visits, could prospect grave prejudice to the privacy and development of the personality of the surrendered person.

YI.8. Nor do the issuing state's information show the actual precautionary measures of violence within the prison between inmates and the capacity of their management.

On the basis of the same procedural emergencies and in particular the character of the crimes of which the requested person is suspected, one cannot escape the observation that the surrendering person could be perceived, at least on the level of appearance, as part of a minority of opinion affected by particularly intense conflicts, as emerges from the cases of reported criminal activities related to hate crimes and violent and intimidating actions of extremist groups of opposite sign (European Parliament, Study on Right-wings extremism in EU, May 2022). In this respect, too, therefore,a particular vulnerability of the requested person emerges in the event that he or she is handed over to the issuing state, even on a temporary basis and for a trial of reasonable duration.

Yl.9. In the face of all the above, the conscious choice of the issuing state not to provide information on the penal institution in which the suspect would be held is not reassuring.

Following the indications of the Court of Justice of the European Union (CJEU, Grand Chamber, Case C-220/18, 25/7/2018) on the subject of the execution of the European Arrest Warrant, the executing judicial authority, if it has evidence of the existence of systemic ogeneralized deficiencies in the detention conditions within the prison institutions of the issuing member state, of which it is up to the referring court to verify the accuracy taking into account all available up-to-date data:

-    the executing judicial authority cannot exclude the existence of a real risk that the person concerned by a European arrest warrant issued for the purposes of the execution of a custodial sentence will be subjected to inhuman or degrading treatment, on the sole ground that that person has, in the issuing Member State, a means of redress enabling him or her to challenge his or her conditions of detention, although the existence of such a means of redress may be taken into account by the same authority in order to take a decision on the surrender of the person concerned;

-       the executing judicial authority is only required to examine the conditions of detention in the penal institutions in which it is likely, according to the information available to it, that the said person will be detained, even on a temporary or transitional basis;

-     the executing judicial authority must ascertain, for this purpose, only the concrete and precise conditions of detention of the person concerned that are relevant for the purpose of determining whether he or she will run a real risk of inhuman or degrading treatment.

In the face of the need for such individualized assessment, the Hungarian Prison Administration has affirmed the irrelevance of identifying the institution, or prison institutions, where the requested person might be imprisoned pending the resolution of the criminal case. Indeed, it stated, "it is not possible to clearly predict in which Hungarian penitentiary institution the surrendered prisoner will be placed for the first time, lullavia, taking the above into account, is also irrelevant. [. ] In case of execution of a prison sentence it will be possible to place the detainee according to the capacity of the available places", as the issuing state adheres to and incorporates into the national forecasts the  "European Convention on Human Rights, by the recommendation of theUnitedNations on the minimum guidelines for the humane treatment of arrested persons, as well as Recommendation No. R/200612 of the Council of Europe on European Prison Rules".

Such provisions, although declarative of the confom1ity of domestic provisions regarding prison treatment, cannot supplant the concrete verification of the material conditions of detention specifically provided for the requested person.

In short, there is a lack of individualized indication of the places where the requested person, if surrendered, could be detained pending criminal adjudication, and this prevents the Court from making the necessary concrete and current critical assessment, on the basis of the remaining sources of evidence acquired at trial, of the information rendered by the issuing state about the conditions of detention that would individually affect the requested person, if surrendered.

Nor can it be postulated, in the systematics of the European Arrest Warrant, that the information rendered by the issuing State is removed from the judicial review of the executing State: unlike the distinct instrument of cooperation given by extradition, in which the requesting State provides guarantees or assurances, in the European Arrest Warrant the issuing State provides precisely "information," as well as apot communicating its possible determinations regarding the revocation of the European Arrest Warrant with recourse to another instrument of cooperation, less intensan1vely limiting personal freedom.

VI. The seriousness of the risks illustrated should be appreciated in light of the potential non-short duration of the trial of the requested person.

The facts are described as relatively complex, both because of the peculiarities of the ecircumstantial contextual elements, abstractly liable to have to be ascertained for sentencing purposes, and even before that because of the complexity of the findings necessary to subsume the suspect's conduct as a direct participatory contribution, as a ca-author of the crime, or as complicity, in the various forms that moral complicity may take.

It is therefore reasonable to assume that the various levels of trial necessary to reach a verdict in a system marked by the principle of due process are, while of reasonable duration, anything but short, at any rate in the overall order of magnitude of one or more years.

Therefore, it cannot be held that the imposition of the condition set forth in Article 19, Paragraph 2 Law 69/2005 is likely to prevent, or diminish below the threshold relevant for the present purposes, the real risk that the person requested to be surrendered will, if surrendered, be harmed in one or more of his fundamental rights. In fact, more competing reasons lead to the conclusion that there is a serious and real risk that a measure of deprivation of liberty and executed in an unspecified prison in the issuing state, a state other than that of the requested person's residence and nationality, could result in degrading treatment of him or could harm his life and mental health in view of his ability, if convicted, to resocialize .

VII.  Nor can the recurrence of proportionality to the use of the European Arrest Warrant be positively assessed in the present case.

Under Article 5 of the Human Rights Convention and the provisions of the Court of Luxembourg, read in the light of the principle of proportionality (ex multis, Court of Justice of the European Union, Butkevicius v. Lithuania judgment of 23.6.2002; fd, Stasaitis v. Lithuania judgment, dated21.3.2002,) it is necessary that the precautionary measure be weighed against the criteria of degree and intensity considering, for example, the duration and the effects that such restriction of freedom produces or may produce (Court of Justice of the European Union 6.11.1980, Guizzardi v. Italy).

As illustrated, the requested subject is incensed and of young age; in the not very brief course of these proceedings, now pending for 129 days, he has behaved probly and loyally, as is evident from the propriety of the execution of the house arrest and the prohibitions imposed by this Court, albeit very restrictive of his freedom of communication because of the obvious need to prevent any danger of escape.

On the other hand, the imprisonment of the requested person, in a foreign state, for a duration that may extend by His Law up to three years, as described above could therefore burden the surrenderer's life with serious prejudice.

In this specific regard, this Court has questioned the proceeding judicial authority in the issuing state, with express mention of Framework Decision 2009/829/JHA in its order of 13-2-2024. In fact, it is in accordance with the interpretative criterion of the progressiveness and non-discontinuity of the instruments of European criminal judicial cooperation that the interpretative guideline stating that "the pre-trial supervision measure of house arrest can be executed in the European Union Member State of residence of the person concerned, because it falls within the scope of Council Framework Decision 2009/829/JHA of October 23, 2009 on the application, between the Member States of the European Union, of the principle of mutual recognition of decisions on 'alternative measures to pre-trial detention'' and d. Legislative Decree No. 36 of February 15, 2016, containing provisions to bring domestic law into line with that decision, since it is a measure that falls within the cases referred to in Article 4(C) of the aforementioned Legislative Decree, since it imposes an obligation to remain in a specific place" (Cass. 03/02/2022 Cc. - dep. 16/03/2022, no. 8864, Cass. 15/09/2021 Cc. - dep. 20/10/2021, no. 37739, contra Cass. 29/04/2021 Cc. - dep. 08/07/2021, no. 2601O).

In Note No. XX-XXX/2024, the General Prosecutor's Office of Budapest Capital, Investigation Supervision Section, responded by arguing the continuing need for the application of the coercive measure as well as the execution of the European Arrest Warrant, in order to bring the surrenderer to trial.

It is worth noting that the principle of proportionality, protected by Articles 6, 7 and 52 of the Charter of Fundamental Rights of the European Union as well as Articles 5, 8 of the ECHR, as applied to the European Arrest Warrant provides for a balance between the need for security and punishability and the protection of fundamental rights including that of the coercive restriction of liberty, in this one in prison under potentially risky conditions. The European Commission's own Communication C/2023/1270 of 15.12.2023, on the issuance of the European Arrest Warrant, recalled what are the alternative instruments to the non-executive European Arrest Warrant.

The Foreign Response, when asked on the issue, denied any possibility of less afflictive coercive measures, verbatim stating that "given the highly organized conspiratorial circumstances of the execution and preparations of the crime, it does not expect from XXX the spontaneous compliance with the rules that would be a fundamental condition for the application of a less severe coercive measure than arrest." Underlying this assessment, as such unreviewable by the executing state, however, one reads factual statements of which the same interlocutory order adopted by this Court had, indeed, made clear the impracticality. We refer in particular to the qualification of the requested person as a person of unknown residence and domicile, whose sources of subsistence and mode of living are notconstant.

On the contrary, as clarified in the records of the proceeding and in the interlocutory order of 13.2.2024, the requested person resides and dwells in MILAN, in a residential property equipped with services and utilities and regularly and lawfully detained, located at the address of execution of house arrest, where he had been easily found by the judicial police on the night of the arrest at the origin of the present proceeding and where no violations of the measure applied to him have ever been reported. Far from living by gimmicks or lucrative illicit trade, he is incensed and has linearly declared himself devoted to regular construction executive duties as a masonry worker (minutes of the hearing of Nov. 22, 2023).

The residual proportionality scrutiny, therefore, also weighs against the execution of the European arrest warrant under consideration.

The refusal of surrender is followed by the ex officio revocation of the precautionary measure, due to the loss of its title.


Having regard to Articles 2, 17 Law 69/2005,

Dismisses the request to surrender Gabriele XXX to Hungary in execution of the European Arrest Warrant with Schengen Identification H***00001 dated 08.11.2023 issued by BUDAI K6ZPONTI KEROLETI BiRÒSÀG.

Revokes all precautionary measures taken against him and orders his immediate release if not detained or restricted for other cause.

Orders the communication of this judgment, upon its irrevocability, to the Ministry of Justice,also for the follow-ups of its competence towards the authorities of the issuing state.

Indicates the custody previously suffered in Italy in the duration, to date, of 129 days. Sends to the Chancery for the fulfilments of its competence.

Contextual reading of the grounds in the hearing pursuant to Article 17, paragraph 6 Law 69/2005.

Milan, 03/28/2024.

President Monica Fagnoni

Extending counsel Stefano Caramellino