In extradition proceedings the Italian judicial authority may base its refusal decision on the decision of the competent Territorial Commission of the Ministry of the Interior that has also granted the extradited person the status of subsidiary international protection (less pregnant, therefore, than that of refugee) due to the danger of exposure to inhuman and degrading treatment in the event of return to the extradition requesting state, if the latter measure is recognized by the court as complete, certain and reliable.
Of particular importance, however, is the motivation of the administrative ruling, in the part in which it illustrates the facts adduced and the evidence exhibited by the applicant for protection or recognition of refugee status, the investigations made ex officio and the relative evidentiary result, on which will be grafted the autonomous - though generally coinciding - prediction about the danger that that person, if returned to the country of origin, might suffer persecutory acts or inhuman or degrading treatment.
Insofar as, in fact, the measure of recognition may be adopted at the outcome of a specifically regulated preliminary investigation, which ascertains on the basis of pre-established evaluation criteria (see art. 3, paragraphs 4 and 5 d. Igs. no. 251 of 2007) the actual existence of the factual prerequisites typified by the law, it remains non-binding for the jurisdiction because of the principle of the separation of the powers of the State, although it may be taken by the judge as a useful element of evaluation to be used as the basis for his or her decision, if considered complete, certain and reliable.
Corte di Cassazione
Judgment Sec. 6 No. 9682 Year 2022
President: FIDELBO GIORGIO
Rapporteur: VILLONI ORLANDO
Hearing Date: 27/01/2022
On the appeal brought by
JUDGMENT
Attorney General of the Bolivarian Republic of Venezuela
against Judgment No. 150/21 of the Court of Appeal of Rome of 09/14/2021 in extradition proceedings concerning RCRD
read the acts, the appeal and the judgment appealed;
Hearing the report of Councilor Orlando Villoni;
heard the prosecutor in the person of Deputy Attorney General Marco Dall'Olio, who concluded that the appeal was inadmissible;
Hearing for the appellant from Advocate LG, who insisted that the appeal be allowed;
Hearing for the respondent RC the lawyer RDV, who asked that the appeal be declared inadmissible or dismissed
HELD IN FACT
1. In the judgment under appeal, the Court of Appeal of Rome declared that the conditions for granting the extradition request made by the Government of the Bolivarian Republic of Venezuela against Rafael Dario Ramirez Carrello, made sign of an arrest order issued by the Tribunal Decimo of First Instance of Caracas on December 16, 2018 in relation to the crimes of malicious embezzlement, evasion from the bidding procedure and criminal association, as provided for by Venezuelan criminal legislation, were not met.
The rejection of the request was pronounced following and due to the granting to the extraditee of refugee status under Articles 1 and 33 of the 1951 Geneva Convention, which was deemed preclusive, also based on the provisions of Article 698 of the Code of Criminal Procedure, of the possibility of surrendering the subject to the country of origin or, in the case of re-extradition, also to another country where the reasons posed in support of protection could be considered extended.
2. Lawyer LG, in his capacity as special prosecutor of the Bolivarian Republic of Venezuela, has appealed against the ruling in cassation, relying on a single articulated ground of censure, in which he complains of violation of Articles 256 and 329 of the Code of Criminal Procedure.
In particular, he deduces that the judgment of the territorial court is marred by a serious violation of the law, since a series of documents filed by the extradite at the Public Prosecutor's Office in Rome, which are knowable both by his defense and by the Court of Appeal, but not by the defense counsel of the country requesting extradition, were included in the trial file.
All this, he argues, took place in violation of Article 329 of the Code of Criminal Procedure, which limits the secrecy of investigative acts according to the procedural deadlines established therein, and Article 256 of the Code of Criminal Procedure concerning state or professional secrets, while in the case at hand it was the defense of the extradite who requested the secrecy of the acts relating to the proceedings for the recognition of refugee status, in violation of Article 111 of the Constitution and the conditions of equality of the parties before a third and impartial judge.
3. The defense of the extradite also produced a brief, requesting that the appeal be declared inadmissible or, in the alternative, dismissed and arguing, with reference to the defense grievances, that no order for the secrecy of the acts has ever intervened, while those of the extradition proceedings have always remained available to all procedural parties.
CONSIDERED IN LAW
1. The appeal should be declared inadmissible.
2. The Rome Court of Appeals rejected the extradition request made by the Republic of Venezuela against RDRC, arguing that once the extraditee, as in the case at hand, has been granted refugee status under Chapter III of Legislative Decree No. 251 of November 19, 2007, adopted in implementation of the Convention signed in Geneva on July 28, 1951, ratified by Law No. 722 of July 24, 1954, and amended by the Protocol to the Convention on the Status of Refugees signed in Geneva on July 28, 1951, ratified by Law No. 722 of July 24, 1954, and amended by the Protocol to the Convention on the Status of Refugees signed in Geneva on July 24, 1954. 722, and amended by the New York Protocol of January 31, 1967, ratified by Law No. 95 of February 14, 1970, the circumstance exempts the judge from any further investigation as to the existence of the conditions referred to in Articles 698, paragraph 1, and 705, paragraph 2, lett. c) of the Code of Criminal Procedure, which prevent the request for surrender from being granted, given the ascertained existence of a 'personalized' danger of persecutory or discriminatory acts for one of the reasons indicated in the aforementioned normative provisions.
Otherwise, if the form of protection granted had been that of subsidiary protection "which could well be consequent to situations in the country of origin of the person concerned that are diffuse, extemporaneous and in any case not personalized" with regard to him or her but relevant in a collective sense and weighing on the entire population of the country (e.g., war conflict), it would have left room for appreciation to the Court of Appeal.
The ruling deserves to be shared, but on the condition that the mutual autonomy of the procedures in the judicial and administrative courts be preserved.
This Court of Cassation has, in fact, already affirmed the principle that in the matter of extradition for foreign countries, the Court of Appeals may base its decision to the contrary, pursuant to Articles 705(2)(c) and 698(1) of the Code of Criminal Procedure, on the measure of the competent Territorial Commission of the Ministry of the Interior that has also granted the extradited person the status of subsidiary international protection (less pregnant, therefore, than that of refugee) due to the danger of exposure to inhuman and degrading treatment in the event of return to the extradition requesting state, if the latter measure is recognized by the court as complete, certain and reliable (Sez. 6, No. 19392 of 06/25/2020, Hoxhaj, Rv. 279263; Sec. 6, No. 3746 of 12/18/2013, dep. 2014, P.G. in proc. Tuzomay, Rv. 258249).
Insofar as, in fact, the recognition measure may be adopted at the outcome of a specifically regulated preliminary investigation, which ascertains on the basis of pre-established evaluation criteria (see Art. 3, paragraphs 4 and 5 of Legislative Decree No. 251 of 2007) the actual existence of the factual prerequisites typified by the law, it remains non-binding for the jurisdiction because of the principle of the separation of state powers, although it may be taken by the judge as a useful element of evaluation to be used as the basis for his or her decision, if deemed complete, certain and reliable.
To this end, then, the motivation of the administrative measure assumes particular importance, in the part in which it illustrates the facts adduced and the evidence exhibited by the applicant for protection or recognition of refugee status, the investigations made ex officio and the relative evidentiary result, on which the autonomous - though generally coinciding - prediction about the danger that that person, if returned to the country of origin, might suffer persecutory acts or inhuman or degrading treatment will be grafted.
3. All this being said, it should be noted that the administrative decision that granted the extradited RC refugee status (a copy of which is in the record) appears to be practically devoid of motivation, limiting itself to a mere determination favorable to the applicant for protection from the Italian state.
It is not, however, on this aspect that the appellant leans its complaints, but rather on a profile of the jurisdictional procedure that is actually irrelevant to the decision.
In fact, the proposed appeal objectively takes the form of a mere attempt to gain access to procedural documents that, according to the appellant, were precluded from being examined by his counsel, although they constituted the subject of in-depth evaluation in the concurrent administrative procedure.
The appeal, on the other hand, completely fails to challenge the reasons on the basis of which the Court of Appeals decided to reject the extradition request, thus appearing to be articulated on grounds other than those provided for by law and thus having to be declared inadmissible pursuant to Article 606, Paragraph 3, of the Code of Criminal Procedure.
4. The declaration of inadmissibility of the appeal is followed, as required by law, by an order for the appellant to pay the costs of the proceedings and to pay a sum in favor of the fine fund, which it is estimated fair to quantify at C 3,000.00 (three thousand).
P. Q. M.
Declares the appeal inadmissible and orders the appellant to pay the costs of the proceedings and the sum of C 3,000.00 (three thousand) in favor of the Fine Fund. Sends to the Clerk's Office for the fulfillment of the requirements of Article 203 disp. att. cod. proc. pen.
Thus decided January 27, 2022 - March 21, 2022