The issue of the violation of Article 3 ECHR must be dealt with ex officio by the territorial Court insofar as it relates to the protection of the fundamental rights of the surrendered person as recognised by the Constitutional Charter and the European Convention on Human Rights, even in the absence of a specific defense request in the judgment on the merits: it is therefore necessary to acquire the necessary specific information on the space reserved for each detainee and the regime applicable to the present appellant in the event of surrender.
It should be extended, for systematic and coherent reasons, the applicability also to investigative EAWs of Article 18-bis, paragraph 2 of Law 69/2005, which provides for the refusal of surrender of Italian citizens or foreigners, including third states "resident" citizens, only in cases of an executive arrest warrant.
SUPREME COURT OF CASSATION
SIXTH CRIMINAL SECTION
hearing 12/07/2023, filing 13/07/2023, no. 30578
Dr. COSTANZO Angelo - President -
Dr. APRILE Ercole - rel. Councillor -
has pronounced the following
JUDGMENT
on the action brought by:
A.A., born in (Omissis);
against the judgment of 05/06/2023 of the Court of Appeal of Bari;
Having regard to the acts, the contested measure and the appeal;
Having heard the report of the Counsellor Dr. Ercole Aprile;
Hearing of the Public Prosecutor, in the person of the Assistant Attorney General Dr. Ceniccola Elisabetta, who concluded by requesting the rejection of the appeal;
Hearing of Mr UG, the appellant's lawyer, who concluded by requesting the annulment of the judgment under appeal.
Conduct of the proceedings
1. By the above-mentioned judgment, the Court of Appeal of Bari declared that the conditions for granting the request for surrender under the European arrest warrant issued by the Greek judicial authority against A.A. were met, who was under investigation in relation to the offences of criminal conspiracy and robbery, committed in (Omissis): arrest warrant issued by the Greek Court of Preveza on 18 November 2014, in execution of which the defendant had been taken into custody in Italy on 10 May 2023 and then, following validation of the arrest, placed under house arrest.
2. A.A. appealed against that judgment, by document signed by his defence counsel, on the following grounds.
2.1. Infringement of the law, in relation to Article 17 of Law No 69 of 2005, in that the territorial court adopted the judgment granting the request for surrender without complying with the time limit of fifteen days from the time of his arrest Italy, even taking into account the extension ordered for the acquisition of information.
2.2. Infringement of the law, in relation to Law No 69 of 2005, Articles 2 and 31, Art. 2.2. Infringement of the law, in relation to Law No 69 2005, Articles 2 and 31, Articles 5 and 8 of the ECHR, in that the District Court acted on the request for surrender despite the fact that a copy of the protective measure underlying the European arrest warrant issued by the Greek judicial authority was never forwarded: a measure whose reading would have been necessary in order to understand whether the custodial order is still effective and whether, in accordance with the principles of reasonableness and proportionality, after so many years the protective requirements justifying the restriction of liberty still exist.
2.3. Infringement of the law, in relation to Law No 69 of 2005, Article 2, Article 3 ECHR and Article 6 TEU, in that the Court of First Instance failed to ascertain what the conditions of detention of the person surrendered will be, given the critical state of Greek prisons in terms of hygiene conditions and overcrowding, such as to call into question respect for the detainee's right to treatment that is not inhuman and degrading: reasons for which A.A, who resides in Italy and is the father of two children, had asked to be allowed to serve his pre-trial detention in Italy.
2.4. Infringement of the law, in relation to Law No 69 of 2005, Article 6, in that the Court of Appeal failed to consider that the documents show reference to two different European arrest warrants (by number and date of issue), so that there is no certainty that the addressee of the request for surrender is indeed the present appellant, whose date of birth was also corrected.
Grounds for the decision
1. The Court considers that the action brought on behalf of A.A. should be allowed, albeit within the limits and for the purposes set out below.
2. The first, second and fourth pleas in law of the appeal do not pass the preliminary examination of admissibility.
2.1. The first plea is manifestly unfounded since, even leaving aside the aspect relating to the extension of the time-limit due to the investigative initiative taken by the Court of Appeal in the present case, it is common ground in the case-law of legitimacy that, on the subject of a European arrest warrant the time limit within which the decision on surrender must be issued is peremptory only for the purposes of the duration of the measures restricting personal liberty, and its non-observance does not have any consequence on the validity of the decision on surrender (thus, among many others, Sez. 6, no. 12559 of 17/03/2016, Bohancanu, Rv. 267421).
2.2. The second ground of appeal is entirely devoid of merit, in that, in addition to having been placed in connection with the issue of the permanence and actuality of the requirements of precautionary measures, i.e. an aspect relating to the application of the precautionary measure that is extraneous to today's thema decidendum, it is aimed at censuring the judgment on appeal on a profile that is, however, in line with the exegetical direction favoured by this Court of Cassation, according to which, on the subject of the European arrest warrant, the repeal, by the Legislative Decree of 2 February 2021, of the European arrest warrant, the subsequent repeal of the European arrest warrant by the European Court of Human Rights, which is the subject of the European arrest warrant, is not in line with the exegetical direction favoured by this Court of Cassation. 2 February 2021, no. 10, of paragraphs 3, 4, 5 and 6 of L. no. 69 of 2005, art. 6, precludes the possibility of considering as a legitimate ground for refusal to surrender the failure to attach the documentation indicated in the aforementioned paragraphs (Sez. 6, no. 35462 of 23/09/2021, M., Rv. 282253).
2.3. The fourth ground of appeal is inadmissible because it concerns a question of fact, concerning an alleged erroneous identification of the addressee of the request for delivery, which was raised for the first time only in the court of legitimacy, not having been put forward or otherwise assessed by the judges on the merits.
3. The third ground of the appeal is, on the other hand, well founded with reference to both the grounds relied on.
3.1. Although the question of the violation of Article 3 ECHR was not expressly raised in the judgment on the merits, the issue had to be dealt with ex officio by the territorial Court insofar as it related to the protection of the fundamental rights of the surrendered person as recognised by the Constitutional Charter and the European Convention on Human Rights.
In this regard, it should be noted that this Court of Cassation has already repeatedly highlighted the critical aspects that characterise the prison system in Greece, in a context that would have required the Court of Appeal of Bari to take action to carry out the most appropriate checks.
On this point, it was clarified that, 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, it is the duty of the Court of Appeal, pursuant to L. 22 April 2005, no. 69, art. 2 of 22 April 2005, no. 69, art. 2, to request additional information from the issuing State, aimed at knowing the prison treatment to which the surrendering person will in practice be subjected: a principle that was enunciated precisely in a case concerning an arrest warrant issued by Greece, to be examined in the light of the "report" of the Committee for the Prevention of Torture of 2 September 2022, on the conditions in Greek prisons, and of the judgment of the EDU Court of 14 January 2021, Kargakis v. Greece, which found a violation of Article 3 of the Charter of Fundamental Rights of the Union on the spot (thus Sec. 6, no. 44015 of 16/11/2022, Prinzhausen, Rv. 284002; cf. Sec. 6, no. 23074 of 24/05/2023, Marina, non mass.).
It was and is necessary, therefore, to acquire the necessary specific indications on the space reserved for each detainee and on the regime applicable to the present appellant in the event of surrender.
3.2. In another and complementary aspect, the decision of the Court of Appeal of Bari denying to A.A. the applicability of Law no. 69 of 2005, art. 18-bis, paragraph 2, on the ground that the relevant provision concerns only cases of an executive arrest warrant, whereas the present case concerns a procedural arrest warrant; and which emphasised the inoperative nature of other grounds for refusal to surrender in that the applicant is a non-EU citizen who, therefore, cannot 'benefit' from the special rules reserved for the recipients of European arrest warrants who have Italian citizenship or citizenship of another European Union Member State, while recognising that the defendant has been lawfully and permanently resident in Italian territory for about six years and has family in Italy with children attending Italian school.
In relation to these argumentative passages, profiles of non-observance or erroneous application of the law are recognisable.
It is true that in the present case, concerning a case of procedural European arrest warrant, the provision dictated by Law no. 69 of 2005, art. 18-bis, paragraph 2, cannot be applied, which, in providing for a specific cause of optional refusal of surrender, refers only to cases of European arrest warrant issued "for the purpose of executing a penalty or a security measure involving deprivation of liberty".
However, the logical-systematic interpretation of the new discipline of the causes of refusal of surrender, as deriving from the amendments introduced by the cited Legislative Decree no. 10 of 2021, allows us to note how the legislator of the reform has regulated in exactly specular and symmetrical terms, with art. 19, para. 1, lett. b), law cited, the case of the European arrest warrant issued "for the purpose of criminal prosecution": guaranteeing, in this situation, to the addressee of the warrant who is an Italian citizen or of another EU Member State, therefore, in the presence of the identical subjective conditions dictated for the case of optional refusal of delivery - a specific "mechanism" of re-entry into Italy (in this sense, among others, Sez. 6, no. 23072 of 24/05/202:3, Ojo, non mass; Sect. 6, no. 19145 of 04/05/2023, Kapenanovic, non mass; Sect. F, no. 31721 of 23/08/2022, Safy, non mass; Sect. 6, no. 29014 of 20/07/2022, Safy, non mass).
It is in relation to this provision that the assessment of the judges on the merits must, therefore, necessarily be paramount. Moreover, there is no doubt that both the provision dictated by Article 18-bis, paragraph 2, and that provided for by Article 19, paragraph 1, lett. b), L. cit. formally delimit the scope of application only to "Italian citizens or citizens of another European Union Member State".
In the case in point, however, the judges on the merits omitted to consider that the Constitutional Court, evidently deeming the questions of legitimacy that had been raised to be not manifestly unfounded, decided to submit to the Court of Justice of the European Union, by way of preliminary ruling pursuant to Article 267 of the Treaty on the Functioning of the European Union (TFEU), a number of questions on the subject. Court of Luxembourg which, in its recent judgment of 6 June 2023, made it clear that European Union law precludes legislation of a Member State which excludes absolutely and automatically from the benefit of that ground for optional non-execution of a European arrest warrant any third-country national who is staying or residing in the territory of that Member State, without the executing judicial authority being able to assess that national's links with that Member State; that such national legislation is contrary to the principle of equal treatment enshrined in the Charter of Fundamental Rights of the European Union, since it treats differently, on the one hand, nationals of the requested Member State and other citizens of the Union and, on the other hand, third-country nationals, without taking account of the fact that the latter may also be sufficiently integrated into the society of that Member State to justify (in the case of an arrest warrant) serving there a sentence passed in the issuing Member State (C. E.U. Just, judgment C-700/21, 2023, 0.G.).
These aspects - valid, as we have seen, also in the case of a procedural European arrest warrant - with which the territorial court failed to deal at all.
4. The contested sentence must therefore be annulled with referral to another section of the Court of Appeal of Bari which, in the new judgment, will abide by the above-mentioned principles of law.
The clerk's office shall be entrusted with the communication formalities required by law.
P.Q.M.
annuals the appeals judgment and refer the case back to another division of the Court of Appeal of Bari for a new trial.
Refer the matter to the clerk's office for the fulfilment of the requirements of Article 22(5) of Law no. 69/2005.
Thus decided in Rome on 12 July 2023.
Filed at the Court Registry on 13 July 2023