In view of the defense allegations questioning the protection of fundamental rights and the lack of credibility of the requesting State in providing information, incomplete or generic diplomatic assurances on the conditions of detention and the fairness of the trial in absentia prevent surrender.
(unofficial machine translation)
ROME COURT OF APPEAL CRIMINAL DIVISION
judgment dated April 11 - filed April 17
judgment number **
In the name of the Italian people
The Court, sitting in chambers and composed of the following judges:
Galileo D'Agostino Massimo Battistini Laura d'Alessandro
President Counselor Counselor
has pronounced the following
JUDGMENT
in the proceedings concerning the extradition requested by the Federative Republic of Brazil
against: XXX
place of birth: date of birth: Brazil **.1986
as subject to:
international arrest warrant issued on **.2020 by the Brazilian Public Prosecutor's Office - Court of ** - in execution of the final judgment of the same District Court of ** in the state of São Paulo, sentencing him to 6 years and 5 months' imprisonment for the crime of aggravated robbery committed in ** (Brazil) on **.2010.
[defense attoreny Avv. Nicola Canestrini]
PROCEEDING
By judgment of the Court of Cassation of February 7, 2024, No. 15661/24, the judgment of the Court of Appeal of Rome of October 3, 2023, which had found that the conditions for the extradition of XXX requested by the Federative Republic of Brazil in relation to the crime of aggravated robbery, for which she had been sentenced to six years and five months' imprisonment, were met.
The Supreme Court identified the following issues on which the Court of Appeal must carry out further investigations, after requesting the Brazilian authorities to supplement the information provided in accordance with Article 12 of the bilateral extradition treaty.
As regards the risk of inhuman or degrading treatment, the Court of Appeal ruled that the widespread degradation of prison facilities, as described by the defense, could not be an obstacle to extradition, in accordance with Article 3(f) of the Extradition Treaty of October 17, 1989, ratified in Italy by Law No. 144/91, which prohibits extradition only if there is a risk that the person will be subjected to acts of persecution or discrimination on the basis of their race, religion, nationality, political beliefs, or social identity. 1989, ratified in Italy by Law 144/91, according to which extradition is prohibited only if there is a danger that the person will be subjected to persecution or discrimination on grounds of individual characteristics such as sex, race, religion, etc., and not as a consequence of a situation prevalent in the prison context. The Supreme Court, however, notes that Article 5(b) of the same treaty provides that extradition shall not be granted precisely in cases where there are substantial grounds for believing that the person sought may be subjected to penalties or treatment constituting a violation of human rights.
That said, the Court of Appeal had erred on the existence of such a risk within the prison facility specifically designated by the Brazilian authorities to house XXX and had erred in attributing the burden of proof to the person concerned.
Indeed, after consulting the competent prison authority of the Federal State of São Paulo, it was confirmed that there was special favorable treatment for female prisoners with children under six months of age and a ministerial body for the prevention of torture and other inhuman or degrading treatment or punishment, with the task of carrying out periodic visits to prisons for the necessary checks.
The Court of Cassation therefore observes that, as pointed out by the defense, the person concerned is the mother of a child over six months of age, which is why she would be subject to ordinary prison treatment, a circumstance on which the information note is completely silent. Even with regard to the minor, the Supreme Court observes that there is no information in the case file that would allow the principles of the Charter of Fundamental Rights in Articles 7 and 24 to be considered safeguarded. From another point of view, the judge cannot consider the information requirement to have been satisfied on the basis of summary indications about the existence of a government body whose composition, autonomy, powers, and actual functioning are unknown. The requesting State should also have guaranteed the possibility of renewing the trial held in absentia.
That being said, at the hearing on June 1, 2024, in the absence of the defendant and after hearing the parties, the Court reserved its decision, ordering in a separate order that the following additional information be obtained from the competent Brazilian authorities.
In particular, information was requested on the detention status of female prisoners with children over six months of age; whether they could, in theory, benefit from a different prison regime from other prisoners, including in other prisons, and up to what age of the child; whether they were subject to the ordinary regime and, if so, what the conditions of detention were and whether they respected the fundamental rights of prisoners. Therefore, in the event of ordinary treatment and in the presence of widespread endemic violence within the prison system, the requesting country must be asked to provide specific assurances that the person being extradited will be treated differently from the ordinary prison regime in such a way as to exclude ill-treatment.
In another respect, the Court requested further specific information on the ministerial body responsible for monitoring and preventing inhuman or degrading treatment (composition, autonomy, powers, effective functioning, frequency of checks).
Furthermore, as indicated by the Supreme Court, a further matter for investigation by the trial judge was whether the legal system of the requesting State allowed the convicted person in absentia to request a retrial, given that XXX had been convicted in absentia.
Finally, it had to be ascertained what treatment the minor would receive, given that she was over six months old. Guarantees had therefore to be obtained regarding the existence and concrete guarantees to ensure the extradited person's relationship with her daughter, born on December 17, 2017. 2017, which must be such as to safeguard the physical and psychological integrity of the minor and the parent; therefore, it had to be ascertained how the mother-child relationship was protected, whether there were special institutions where minors could stay and until what age; whether these institutions provided for school or recreational activities; whether psychological or health care was provided for minors; whether there were special areas within the prison where female prisoners could interact with their minor children; whether meetings between female prisoners and their minor children were encouraged both inside and, where possible, outside the prison; whether a regime of home detention was provided for to facilitate assistance to the minor child.
At the hearing on October 29, 2024, the case was adjourned due to the defense counsel's inability to attend, acknowledging the filing of the brief pursuant to Article 121 of the Code of Criminal Procedure and requesting a response to the request for information from the Federative Republic of Brazil.
At the hearing on January 7, 2025, the Court acknowledged the partial response received to the request already made and adjourned the chamber to April 1, 2025, on which date, however, due to a change in the court's schedule, the hearing was postponed to April 11, 2025.
At that hearing, after hearing the parties and taking note of the defense brief filed on March 26, the Court reserved its decision.
REASONS
The information requested by this Court from the Federative Republic of Brazil on June 11, 2004, was provided in an exhaustive manner only with regard to the guarantees of the permanence of the mother-child relationship; however, with regard to the guarantee of respect for the psychological and physical integrity of the detainee and the possibility of a retrial in absentia, the information must be considered, in part, incomplete and, in part, generic.
The competent authority, in a note dated December 24, 2024, provided information regarding the guarantee of mother-child cohabitation until the child reaches six months of age; it then clarfied that subsequently, responsibility for the care of the child would be entrusted to family members and that XXX would therefore be placed in the ordinary prison regime. Minor children could in any case visit their imprisoned mothers, accompanied by a responsible person, and during such visits to the Santana Women's Prison, a large courtyard was also available for recreational activities. It was reiterated that “despite the prison facility in which the convicted person will be placed, the fundamental rights provided for in Article 5 of the Federal Constitution will be guaranteed, in particular respect for physical and moral integrity, as well as the execution of the sentence in an environment distinguished according to sex, age, and the nature of the offense, in accordance with the provisions of paragraph XLVIII of the same article.” The minor daughter of **, born on **.2017, would therefore be entrusted to her family and could visit her mother in prison. Although different from our legal system, the mother-child relationship must therefore be considered guaranteed. Indeed, the Supreme Court has clarified that “The fact that the legal system of the requesting State provides for forms of protection for mothers of young children that do not correspond to those provided for by our legal system does not constitute an obstacle to the extradition of a convicted person, since it is sufficient that there are protection mechanisms that do not conflict with the provisions of Articles 698, paragraph 1, and 705 of the Code of Criminal Procedure and, in any case, are functional to safeguarding the psychological and physical integrity of the minor and the parent. (Case concerning extradition requested by Belgium).” (Cass. II 47125 of December 22, 2021).
That said, and given that the person to be extradited would be subject to ordinary detention, the Court considers that no comprehensive information has been provided with regard to the risk of inhuman or degrading treatment. Detailed information had been requested on the body responsible for monitoring and preventing such treatment, whereas the Supreme Court had observed that Article 5(b) of the treaty with the Federal Republic provides that extradition shall not be granted if there are substantial grounds for believing that the person sought may be subjected to penalties or treatment constituting a violation of human rights. However, after consulting the competent prison authority of the Federal State of São Paulo, it was confirmed that there was a ministerial body for the prevention of torture and other inhuman or degrading treatment or punishment with the task of carrying out periodic visits to prisons for the necessary checks. Therefore, taking into account the response provided by the competent authorities and on the basis of the indications of the Court of Cassation, a specific question was formulated on this point (composition, autonomy, powers, effective functioning, frequency of checks).
No response to this request for information is on file.
From another point of view, the assurances provided regarding the treatment of prisoners, although divided according to sex, age, and nature of the offense, appear generic. No indication is given of the specific treatment provided for prisoners in the prison in question, nor is any mention made of the availability of minimum space inside the cells, the maximum number of occupants, or the existence of outdoor areas. This is despite the fulfillment of the burden of defense by producing briefs and documentation attesting to the deterioration of the prison system. In particular, the brief received on March 26, 2025, contains two rulings of the Brazilian Supreme Federal Court which, in 2015 and 2023, certified that the state of the Brazilian prison system must be considered contrary to the Constitution, as it does not respect the fundamental rights of prisoners in terms of dignity, physical health, and psychological integrity (referring on this point to the rulings reproduced in full). The brief of January 3, 2023, reviewed the Pizzolato court case, which was handed over to Brazil following diplomatic assurances deemed reliable but apparently disregarded once the handover took place, as ascertained by the delegation of the Italian Embassy in Brazil.
Moreover, the Court of Cassation clarified that in any case “it is the responsibility of the Court of Appeal, for the purposes of ascertaining the impediment provided for in Article 698, paragraph 1, of the Code of Criminal Procedure, to request additional information aimed at ascertaining the prison treatment to which the person being extradited will actually be subjected, pursuant to Article 13 of the European Convention on Extradition, even in the absence of defense allegations in this regard” (Cass. sez. 6 - Judgment No. 22818 of July 23, 2020).
That said, in order to ascertain the actual existence of a risk of inhuman and degrading treatment, which prevents the surrender of the person sought, it is necessary to “obtain concrete, precise, and current information, as a mere commitment by the requesting State is not sufficient.” In this regard, the Supreme Court has stated that “in matters of extradition to foreign countries, for the purposes of ascertaining the impediment provided for in Article 698, paragraph 1, of the Code of Criminal Procedure, the Court of Appeal must assess whether there is a general risk of inhuman or degrading treatment in the requesting country, using, for this purpose, objective, reliable, precise, and appropriately updated information on the conditions of detention in the requesting State and, having verified the existence of such a risk, must carry out a targeted investigation, including by requesting additional information, in order to ascertain whether, in the specific case, the person concerned by the surrender will be subjected to inhuman or degrading treatment (Case concerning an extradition request made by the Ukrainian Republic - Cass. Sez. 6, Judgment No. 28822 of June 28, 2016).
The Supreme Court therefore reiterated that “in order to ascertain the actual existence of a risk of inhuman and degrading treatment, which would prevent the surrender of the detainee to the authorities of the issuing Member State, the referring judicial authority must obtain ‘individualized’ information on the detention regime” (Cass. VI 26383 of June 5, 2018).
In light of the examination of the consistent orientation of the case law on the matter, it cannot be said that the risk of inhuman or degrading treatment has been averted in the specific case in light of the unsatisfactory responses obtained. If the widespread violation of the fundamental rights of prisoners in the prison system may not in itself be an obstacle to surrender, as already indicated by the Supreme Court of Cassation, and if, in any case, Article 5(b) of the treaty with the Federal Republic provides that extradition may not be granted if there are substantial grounds for believing that the person sought may be subjected to inhuman punishment or treatment, the non-exhaustive response to the information requested since June 2024 in view of the above does not provide adequate guarantees in this regard.
Finally, the requested authority responded in general terms to the question concerning the renewal of the trial held in the absence of the defendant, which occurred in the present case. Indeed, the note of January 24, 2025, states that it is “a question of legal merit relating to the ongoing criminal proceedings, which is to be examined by the competent court.” It is therefore difficult to understand whether there is a legal mechanism for the protection of the rights of defense similar or analogous to that of the Italian legal system, such as the right to restitution within the time limit, or whether there is a system based solely on the discretion of the judicial authority.
In the latest defense brief, however, it is stated that there is no system of protection comparable to that in force in our country, as the review mechanism is not based on the innocent absence of the defendant, but on the incompatibility of the conviction with criminal law or the evidence in the case, on its conformity with false statements or documents, or on the emergence of new evidence of innocence. That being said, “in matters of extradition, the conditions for granting the request relating to a person convicted in absentia are met when the legal system of the requesting State allows the person convicted in absentia to request a retrial (Cass. sez. 6, Judgment No. 19226 of March 30, 2017). In this case too, in light of the information received, which is by no means exhaustive, the right of the person sentenced in absentia to request a retrial is not considered to be guaranteed, so that, even from the point of view of the infringement of the rights of the defense, the conditions for granting the request for surrender do not exist.
For all these reasons, the request for surrender made by the Federative Republic of Brazil must be rejected.
P. Q. M.
Having regard to the conclusions of the Public Prosecutor [who asked for extradition]
Having regard to Law No. 144 of April 23, 1991, ratifying and implementing the extradition treaty between the Italian Republic and the Federative Republic of Brazil of October 17, 1989;
REJECTS THE SURRENDER
To the Federative Republic of Brazil
of XXX
place of birth: Brazil
date of birth: **. 1986 as he is subject to:
international arrest warrant issued on **.2020 by the Brazilian Public Prosecutor's Office - Court of ** - in execution of the final judgment of the same District Court of ** in the state of São Paulo, sentencing him to 6 years and 5 months' imprisonment for the crime of aggravated robbery committed in ** (Brazil) on **.2010;
DETERMINES
the total remaining sentence, as of today's date, to be 6 years, 3 months, and 7 days of imprisonment, minus the time already served in Italy from October 19, 2024 (date of execution of the arrest) to December 13, 2024 (date of replacement of the precautionary measure of house arrest with the obligation to report, revoked on 24.4.2024);
ORDERS
that the aforementioned sentence be served by the convicted person in Italy. Refers the case to the Registry for the formalities.
Rome, April 11, 2025, grounds filed on April 17, 2025.