In order to ascertain the actual existence of a danger of inhuman and
degrading treatment, precluding the surrender of defendant in an Europena Arrest Warrant proceeding to the authority of the issuing member state of "individualized" information on the detention regime especially if defense has attached objective, precise and up-to-date elements regarding the detention conditions in force in the requesting state.
(unoffficial machine translation)
Sec. VI Criminal No. 1317 Year 2023
President: PETRUZZELLIS ANNA
Rapporteur: DE AMICIS GAETANO
Hearing Date: 12/01/2023 - filing 16.1.2023
On the appeal brought by DS, born on ** in **
against the judgment of 28/10/2022 of the Court of Appeal of Brescia;
Having regard to the acts, the judgment under appeal and the appeal;
Hearing the report of the Counselor, Gaetano De Amicis;
read the conclusions of the Public Prosecutor, in the person of Deputy Attorney General Vincenzo Senatore, who requested the dismissal of the appeal;
Read the conclusions of defense counsel, Attorney Nicola Canestrini, who requested that the grounds of the appeal be upheld.
In a ruling dated October 28, 2022, the Brescia Court of Appeal ordered.
The surrender of SD, a Dutch and Polish citizen, to the Judicial Authority of the Hellenic Republic, in connection with a European Arrest Warrant issued on ** 2020 for the execution of the sentence of six years, six months of imprisonment and a fine of 20,000 euros, imposed on him by the Court of Appeal of Felonia of Thrace by final judgment No. **/2019 for the crimes of laundering a car of stolen origin and use of false documents.
The aforementioned decision made the surrender subject to the twofold condition that the requested person is not subject to criminal proceedings, nor deprived of of personal liberty, for an act prior to and different from that for which it was was granted, subject to the exceptions provided for in Article 26, Paragraph 2, Law No. 22 April
2005, No. 69, and who, without the consent of the Court of Appeals, is not handed over to another member state in execution of an m.a.e. issued for a crime prior to to the surrender, nor extradited to a third state in the absence of the consent to subsequent extradition, granted in accordance with the international conventions in force
in force and Article 711 of the Code of Criminal Procedure.
2. Against the aforementioned decision appealed for cassation the
defense counsel, alleging in a first plea violation of law and defective
motivation in relation to the failure to ascertain the actual presence of the applicant on Italian territory, with the consequent impossibility of executing the delivery due to his unavailability.
It is assumed, in this regard, that in analogy with what the Supreme
Court of Cassation on the subject of extradition (Sect. 6, no. 44465 of 11/12/2001, Dumitran; Sec. 6, no. 2470 of 14/07/1999, Michalos and others), the physical presence of the extradite on Italian territory constitutes a necessary prerequisite for the assertion of the jurisdiction of the Italian judicial authority, where uncertainty as to the applicant's presence on the territory would require the proceeding authority to order further searches and, in case of failure to finding, to pronounce a judgment of no jurisdiction.
The District Court, on the other hand, held to proceed, despite having established the untraceability of the surrendered person on Italian territory.
2.1. A second plea alleges a violation of the law with regard to.
the lack of knowledge of the trial and the consequent decision of conviction taken by the Judicial Authority of the Hellenic Republic, the applicant not having been appellant personally informed of the place and date of the holding of the relevant trial.
2.2. A third ground of appeal alleges violation of the law pursuant to Articles 2 Law 22 April 2005, no. 69, and 3 ECHR, regarding the risk of the applicant being subjected to inhuman and degrading treatment in the prison institutions of the requesting state, in view of their state of overcrowding, hygienic conditions inadequate and frequent incidents of violence, as attested, including most recently latest, in a report by the Council of Europe's Committee for the Prevention of Torture of Europe (CPT) dated September 2, 2022, and in certain decisions issued by the Court EDU (such as, e.g., EDU Court Kargakis v. Greece Jan. 14, 2021, No. 27025/13).
It is assumed, in this respect, the insufficiency and generality of the information supplementary information provided by the Greek authorities in response to the request in this regard formulated by the District Court.
2.3. Finally, in a fourth plea, a new request is made for a reference
for a preliminary ruling to the Court of Justice of the European Union in relation to Article 5 of the Framework Decision 2002/584/JHA and Article 18-bis Law cited above, on the grounds of conflict -with the principle of free movement within the territory of the Union and the principle of non discrimination among citizens of the Union set forth in Articles 21 and 18 TFEU.
The aforementioned regulatory provisions, in the applicant's opinion, do not take into account of cases in which the surrendering person is reached by a European warrant of arrest in a state other than that of nationality, or the one in which maintains its main center of interests, and therefore do not allow the state of execution to refuse his or her surrender, with the consequent risk that, once the
ordered and executed the surrender due to the absence of functional links with the Executing State, he or she would ask the Issuing State to be allowed to execute the sentence in his state of nationality.
3. In an indictment transmitted to the Registry of this Supreme Court on December 9, 2022, the Attorney General set forth his conclusions, requesting the dismissal of the appeal.
4. In a memorandum transmitted to the Clerk's Office of this Supreme Court on January 4, 2023, defense counsel Nicola Canestrini made a series of arguments in response to the considerations covered by the indictment of the Attorney General and illustrated his conclusions, in part recalling the grounds of the appeal and insisting on their acceptance.
1. The appeal is partially well-founded and should therefore be granted within the limits and for the the effects set out and specified below.
2. The first plea must be considered unfounded, if it is considered that, in light of the established jurisprudence of this Supreme Court, formed in the matter of extradition, but applicable, by analogy pursuant to Article 39, paragraph 1, Law 22 April 2005, no. 69, also in relation to the new surrender procedure based on the European arrest warrant, the presence in the Italian territory of the person whose extradition is requested constitutes the prerequisite for the request for surrender by the foreign state, so that if there is certainty that the extradited person has removed, the decision on extraditionability cannot be rendered and it must be declared the
no need to adjudicate (Sec. 6, No. 8601 of 08/02/2022, Doring Falkenberg Re, Rv. 282912).
For the surrender proceedings to be devoid of its typical object, it is
therefore necessary the certainty that the person requested to be surrendered has removed from Italian territory.
Indeed, it is not an obstacle to a favorable decision of extraditability the circumstance that the extradited person has become a fugitive in the course of the proceedings, where there is no proof that he or she is no longer in Italian territory (ex multis v. Sez. 6, no. 20133 of 30/01/2004, Udovicich, Rv. 229306; Sez. 6, no. 30726 of 06/24/2016, Government of the United Arab Emirates, Rv. 267682).
In the present case, as clarified by the Court of Appeals in mentioning the note dated October 25, 2022, from the Brescia Police Headquarters (where it acknowledges the evasion from house arrest and the appellant's current unavailability in the territory of
Brescia), the person requested to be surrendered does not at all appear to have escaped clandestinely from the state, having only made himself untraceable, so that until until it is proven that he is no longer in the territory of the Republic, the organs in charge thereof will be obliged to search for her and, if their search is successful their search, to capture it for the purpose of surrender (see Sec. 6, no. 20133 of 30/01/2004, Udovicich, cit.).
3. Equally unfounded must be considered the second ground of complaint, given that that, on the subject of an enforceable European arrest warrant, by virtue of Art. 6, para. 1 - bis, lett. d), and 18- ter of Law No. 69 of April 22, 2005, the contumacious nature of the judgment held in the issuing state does not constitute grounds for possible refusal of surrender where the system of that foreign state allows the person convicted "in absentia" to request, upon learning of the relevant decision, a retrial that allows the merits of the case to be re-examined and lead, including through the attachment of new evidence, to the reform of the conviction in his presence (Sec. 6, No. 23253 of 06/13/2022, Ouled, Rv. 283320).
In incorporating the provisions of Article 4 -a, para. 1 (d) of Decision
Framework Decision 2002/584/JHA of June 13, 2002, art. 6, par. 1 - bis, lett. d), law cit. covers the hypothesis, configurable in the present case, in which "... the person concerned has not received personally the notification of the decision, but will receive it personally and without delay after delivery in the issuing Member State
and will be expressly informed of both the right to obtain a retrial or to bring an appeal for a trial, in which he has the right to participate and which allows for a review on the merits, as well as, also by means of the attachment of new evidence, the possibility of a reform of said decision, and of the time limits within which he may request a new trial or bring an appeal for a trial on appeal."
In this regard, reference should be made to what the Court of Justice of the European Union has observed European Union since the Grand Chamber judgment of February 23, 2013, Melloni, C-399/11, which stated the following in para. 52: "Article 4a(1), of Framework Decision 2002/584 establishes, therefore, in points (a) and (b), the
preconditions under which the person concerned is deemed to have renounced voluntarily and unequivocally to appear in the proceedings against him/her, with the consequence that the execution of the European arrest warrant for the purpose of
the application of the sentence to the person convicted in absentia cannot be subject to the subject to the condition that he may benefit from a retrial in the his presence in the issuing member state.
This is true vuoi, as stipulated in paragraph 1(a), when the person concerned did not appear in person at the trial despite having been summoned in person or officially informed of the date and place fixed for it, or, as the same paragraph states, (b), when, being aware of the date fixed, he chose to be represented by a defense counsel instead of appearing in person.
As for the aforementioned paragraph 1 (c) and (d), it enunciates the cases in which the executing judicial authority is obliged to execute the arrest warrant European arrest warrant despite the fact that the person concerned is entitled to a retrial because the said arrest warrant indicates either that the person concerned has not requested to benefit from of a retrial, or that he will be expressly informed of his right to a a retrial."
In recalling what is expressly specified in the content of the warrant
of European arrest warrant issued for enforcement purposes by the competent Greek authorities, the judgment under appeal noted that the system of the issuing state allows for the the possibility of review of the trial in case of conviction in absentia, thereby complying with the constant jurisprudence of this Supreme Court (Sec. 6, no.
7275 of 02/23/2021, Delic, Rv. 280842; Sec. 6, no. 25303 of 06/21/2012, Mitrea, Rv. 252724), according to which the conditions for the surrender of a person convicted in "absentia" if the person concerned has voluntarily renounced participation, pursuant to Article 4-bis(1)(a) and (b) of Framework Decision 2002/584/JHA, or where the person concerned has waived the right to request a retrial, pursuant to Article 4-bis(1)(c), or where it is provided that he or she be expressly informed of the right to be retried pursuant to Art. 4-bis,
Solution, the one now indicated, which this Supreme Court has long
also identified on the subject of executive extradition, affirming the principle according to which the conditions for the granting of an application concerning a person convicted in absentia when the system of the requesting state allows the person convicted in absentia to request the renewal of the trial (ex multis see Sec. 6, no. 19226 of 03/30/2017, Locorotondo, Rv. 269833; Sec. 6, no. 43542 of 09/10/2012, Neagu, Rv. 253821).
Correct, therefore, must be considered the solution in this regard adopted by the Court of merit, also in light of the subsequent jurisprudential elaboration of the Court of Luxembourg, according to which the executing judicial authority is required to proceed to the execution of a European arrest warrant despite the absence of the person concerned at the trial terminated by the decision, in the presence of one of the circumstances provided for in Article 4-bis (1) (a), (b), (c) or (d) of the Framework Decision 2002/584/JHA cited above (Court of Justice. EU, Aug. 10, 2017, Tupikas, C-270/17 PPU, para. 55; Court of Justice. EU, Dec. 17, 2020, TR, C-416/20 PPU, paras. 37- 42).
4. In contrast, the third ground of appeal must be considered well-founded, in view of the inadequate explanation offered regarding the necessary need for verification of the suitability of the additional information transmitted by the Issuing State regarding the alleged risk of violation of the prohibition of inhuman and degrading treatment on account of the conditions of overcrowding in the penitentiary institutions of the requesting State, in view of the numerous, specific and recent symptomatic elements in this regard put forward by the applicant's defense (in terms, for a similar case, see Sec. 6, no. 44015, Nov. 16, 2022, P**).
Indeed, the judgment under appeal, in recalling the information received from the Greek authorities following the detailed request made by the Court District on July 20, 2022, referred to a note from the General Secretariat for Anti-Crime Policy dated August 22, 2022, in which they assures that, in case of surrender, the conditions of detention will be respectful of of the criteria dictated by the case law of the EDU Court: a note, this one, the content of which content refers, in this respect, both to an earlier document of the General Secretariat for Anti-Crime Policy dated November 9, 2021 (regarding the the possibility of guaranteeing, as a general rule, the enjoyment of a livable space of three square meters in the different confinement centers of the requesting country), and to a subsequent note, dated August 19, 2022, from the Director of the detention institution of Komotini, explanatory of the conditions envisaged within that facility, where the requested person could be subjected to detention in case of surrender.
It should be noted, however, in this regard:
a) that the recalled information of November 9 November 2021 does not appear to be sufficiently up-to-date, nor individualized,
referring to "any extradite who is in the national territory of any
European Union member state," and moreover appear to be contradicted by the content of the latest Report of the European Committee for the Prevention of Torture and inhuman or degrading treatment or punishment of the Council of Europe (CPT) of 2 September 2022, where reference is made to the fact that the conditions of detention in the requesting country are still to be defined, in most cases, as not respectful of the human rights of the detainees and integrating, therefore, treatment inhuman and degrading treatment;
b) that in the same note of August 19, 2022, just mentioned, express reference is made to the circumstance that the cells of the Komotini detention facility are overcrowded and do not guarantee a space of 3 square meters for each inmate, since the establishment has a a maximum capacity of 162 inmates, but currently 313 people are confined there people, with an average of 300 inmates.
Now, in the face of the specific complaints in this regard made by the defense and the reasoned allegation - in particular, on the basis of the Report of the Committee for Prevention of Torture of the Council of Europe of September 2, 2022 and the recalled ruling rendered by the EDU Court in Kargakis v. Greece - of the existence of a real risk of inhuman and degrading treatment in the institutions prisons of the issuing state, in violation of the principle established by Article 4
of the Charter of Fundamental Rights of the European Union, the contested decision merely merely incorporated the generic information provided by the requesting authority, giving merely apparent reasons on a decisive point for the purpose of of granting the request for surrender made by the judicial authority foreign, notwithstanding the specific additions requested of it in the aforementioned order interlocutory of July 20, 2022.
In this regard, indeed, the United Sections of this Supreme Court (Sect. U, no. 6551 of 07/24/2020, Ministry of Justice, Rv. 280433) clarified that in the assessment of the minimum individual space of three square meters, to be ensured to each prisoner so that the state does not incur the violation of the prohibition of inhuman or degrading treatment, established by Article 3 ECHR, as interpreted
by the case law of the ECHR, must have regard to the area that
ensures normal movement in the cell, so that furnishings should be deducted tending to be fixed to the floor, which includes, for example, bunk beds.
It was also stated that the so-called compensatory factors, consisting of the short duration of detention, decent prison conditions, sufficient freedom of movement outside the cell through the performance of appropriate activities, if jointly recurring, may make it possible to overcome the presumption of violation of Article 3 cited above arising from the availability in the cell collective of a minimum individual space of less than three square meters, whereas,
in the case of the availability of an individual space between three and four square meters, the aforementioned compensatory factors contribute, together with oth1317/23)ers of a negative character, to the unitary assessment of the overall conditions of detention.
In the present case, therefore, the District Court did not correctly
application of the indicated principles, having merely stated generically that persons detained in execution of a European arrest warrant are subject to a special regime designed to ensure compliance with the standards Community standards, without, however, ascertaining the criteria adopted for the purpose of calculating the space concretely reserved for the appellant, the number of detainees for each cell, the detention regime to which he would be subjected (e.g., open or semi-open), the times for carrying out activities outside the cells, the period of detention to be spent in such a regime (according to the criteria enunciated by the EDU Court, Grand Chamber, Oct. 20, 2016, Mursic v. Croatia, No. 7334/13),
the extent of which, moreover, in the present case does not appear to be of short duration.
In order to ascertain the actual existence of a danger of inhuman and
degrading treatment, precluding the surrender of the detainee to the authority of the issuing member state requires, on the other hand, the acquisition by the judicial authority requested, of "individualized" information on the detention regime (Sec. 6, no.
26383 of 05/06/2018, Chira, Rv. 273803), especially in the event that the surrenderer has attached objective, precise and up-to-date elements regarding the detention conditions in force in the requesting state (Sez. 6, no. 10822 of 16/03/2021, Istrate, Rv. 280852).
Lastly, it is worth recalling the principle that, on the subject of an "enforceable European "executive," in assessing the treatment that will be reserved for the surrendering person, the compensatory factors - constituted, jointly, by the short duration of detention, dignified prison conditions, sufficient freedom of movement outside the cell through the performance of appropriate activities - may make it possible to overcome the presumption of violation of Article 3 of the ECHR arising from the availability in the collective cell of a minimum space individual of less than three square meters, only in cases where the detainee is subjected to the so-called "semi-open" regime and not also in the case where the detainee is subjected to the so-called subjected to the so-called "closed" regime (Sec. 2, No. 27661 of 13/07/2021, Zlotea, Rv. 281554).
5. The acceptance of the above-mentioned ground of appeal determines the absorption, as it stands, of the further censures proposed by the appellant.
6. On the basis of the above considerations, in conclusion, it is necessary to the annulment with reference of the contested decision, so that the District Court in the operative part indicated eliminates the flaws noted, conforming to the principles herein established.
The Clerk's Office will see to the completion of the duties set forth in Article 22, Para. 5, Law No. 69 of 2005.
FOR THESE REASONS
Annuls the judgment under appeal and refers the case for new judgment to another Section
of the Court of Appeal of Brescia.
Sends to the Clerk's Office for the fulfillments referred to in Article 22, Paragraph 5, Law
No. 69 of 2005.
Thus decided on January 12, 2023