When the defense raises specific complaints on the basis of up-to-date and reliable information of a real risk of inhuman and degrading treatment in violation of Article 4 of the Charter of Fundamental Rights, the executing judicial authority cannot rely on generic information made by the Greek authority by giving merely apparent reasons on this decisive point for the acceptance of the request for surrender made by the foreign judicial authority.
(automatic unofficial translation)
Sec. VI Criminal
No. 44015 Year 2022
President: DI STEFANO PIERLUIGI
Rapporteur: D'ARCANGELO FABRIZIO
Hearing Date: 16/11/2022
PM, born in Germany on **/1969;
against the judgment of September 27, 2022 issued by the Court of Appeals of Trento - Bolzano detached section-;
Having regard to the acts, the judgment under appeal and the appeal;
Hearing the report delivered by Councilor Fabrizio D'Arcangelo;
Hearing the requests of the Public Prosecutor, in the person of Deputy Prosecutor General Andrea Venegoni, who concluded by requesting that the appealed judgment be annulled with referral;
Hearing the requests of defense attorneys Nicola Canestrini and Hansjorg Stofner, who asked that the appeal be granted.
1. With the contested judgment, the Court of Appeal of Trento - Bolzano Detached Section - ordered the surrender to the Greek judicial authority of MP in execution of the European arrest warrant issued by the Court of Appeal of Crete for the execution of the conviction issued on June 8, 2012 for the crime of theft of religious icons committed on October 12, 2004.
2. Lawyers Nicola Canestrini and Hansjorg Stofner, on behalf of P, appeal against this judgment and seek its annulment.
In a single, articulated ground of appeal, the defenders complain of the failure to comply with or erroneous application, pursuant to Article 606, paragraph 1(b), of the Code of Criminal Procedure, Article 2 of Law No. 69 of April 22, 2005, of Articles 2 and 3 of the European Convention on Human Rights in relation to the concrete risk of violation of the fundamental right of the person requested to be surrendered not to be subjected to inhuman and degrading treatment.
The defenders argue that the Court of Appeal of Trento, with merely apparent motivation, allegedly affirmed the non-existence of grounds for impediment to surrender with regard to situations of prison overcrowding, considering detailed the information rendered by the Greek authority and the possibility for the extradited person to receive adequate treatment for the pathologies from which he is afflicted in the penitentiary to which he is destined.
In the defenders' view, however, if the surrender were to be carried out, the P would be exposed to the real risk of suffering inhuman and degrading treatment during the period of detention, as the Greek prison system is unable to ensure penitentiary treatment that respects human dignity and constitutionally and internationally recognized rights.
In fact, Hellenic penitentiary institutions are allegedly characterized by a pathological state of overcrowding, inadequate hygienic conditions, and frequent episodes of violence, as also noted recently by the Committee for the Prevention of Torture in its report on conditions in Hellenic penitentiary institutions dated Sept. 2, 2022, and by the European Court of Human Rights in its judgment rendered in the Kargakis case (C. Edu , Jan. 14, 2021, Kargakis v. Greece, No. 27025/13).
Moreover, the defenders note that, as noted by the Committee for the Prevention of Torture in the above-mentioned report in Greek penal institutions, episodes of violence are frequent and, often, it is precisely groups of inmates who, in fact, direct entire wards.
The Court of Appeals, therefore, would have unlawfully deemed sufficient the indeed generic and incomplete assurances provided by the Greek authority on the conditions of detention, as they did not specify the open or semi-open detention regime to which P would be destined in Chania Prison, the concrete possibility of access to areas outside the cell, all the more so in relation to the not short duration of detention (amounting to five years, eleven months and twenty-seven days of imprisonment) still to be served.
The very indication of a minimum space of between three and four square meters could prove inadequate, as noted by the European Court of Human Rights (Edu Court, Grand Chamber, October 20, 2016, Mursic v. Croatia, No. 7334/13), when combined with the additional elements of inadequacy of Hellenic penitentiary institutions with regard to the possibility of physical activity in the open area, the presence of natural light and air in the cell, the adequacy of ventilation and temperature, and compliance with general hygiene and sanitation requirements.
Insufficient and general, moreover, would be the assurances given by the Greek authority also regarding the suitability of the Chania prison's facilities to provide adequate treatment for the health problems from which P suffers (diabetes, alcohol dependency syndrome, heart attack, traumatic subdural hematoma and structural epilepsy dating back to 2008), which, indeed, would be incompatible with his state of detention.
CONSIDERED IN LAW
1. The appeal must be granted to the extent specified below.
2. By a single plea, the appellant alleges violation of Art. of Art. 2 of Law No. 69 of April 22, 2005, of Art. 2 and 3 of the European Convention on Human Rights, inasmuch as the judgment under appeal gave merely apparent reasons as to the non-existence of the risk for the person requested to be surrendered of suffering, in the event of transfer to the Chania prison house, inhuman and degrading treatment, in terms of prison overcrowding and violence in the prison environment, and an injury to his health.
3. The profile of the complaint regarding the violation of the law regarding the danger to the applicant's health in case the request for surrender is granted turns out to be unfounded.
4. It must, in fact, be noted, in accordance with the constant orientation of the jurisprudence of legitimacy, that on the subject of the European arrest warrant, the reasons that lead one to believe that the surrender would endanger the life or health of the surrendered person are not counted by Article 18 of Law No. 69 of 2005 among the grounds for refusing the surrender, but pertain to the executive phase of the same and can be asserted by means of a petition to the Court of Appeal, pursuant to Art. 23, paragraph three, of the same law, as they constitute a personal condition subject to modification, even sudden, in the course of time and, therefore, not usefully representable in the procedural stages prior to the execution of the delivery order (ex plurimis: Sez. 6, no. 2492 of 19/01/2022, Del Vecchio, Rv. 282678 - 01; Sec. 6, no. 7489 of 15/02/2017, Yassir Farag, Rv. 269110 - 01; Sec. 6, no. 108 of 30/12/2013 (dep. 03/01/2014), Di Giuseppe, Rv. 258460 - 01).
In the present case, moreover, the pathologies deduced by the plaintiff's defense do not appear to fall under the notion of "serious pathologies of a chronic and potentially irreversible nature" for which the Constitutional Court, in Order no. 216 of 2021, ordered that the Court of Justice of the European Union be asked for a preliminary ruling under Article 267 of the Treaty on the Functioning of the European Union (TFEU): "whether Article 1(3) of Framework Decision 2002/584/JHA on the European Arrest Warrant, read in the light of Articles. 3, 4 and 35 of the Charter of Fundamental Rights of the European Union (CFREU), must be interpreted as meaning that the executing judicial authority, where it considers that the surrender of a person suffering from serious diseases of a chronic and potentially irreversible nature may expose him or her to the danger of suffering serious harm to his or her health, must request from the issuing judicial authority information enabling it to rule out the existence of such a risk, and is obliged to refuse surrender where it does not obtain assurances to that effect within a reasonable time."
5. The complaint regarding the failure of the judgment under appeal to state reasons regarding the risk of inhuman and degrading treatment in relation to the overcrowded conditions in Greek prisons is well-founded.
5.1. The Grand Chamber of the Court of Justice in its April 5, 2016 judgment (C- 404/15, Aaranyosi, and C-659/15, Caldararu) stated that the execution of the European Arrest Warrant can never lead to inhuman or degrading treatment.
The prohibition of inhuman or degrading punishment and treatment set forth in Article 4 of the Charter of Fundamental Rights of the European Union, which in turn corresponds to Article 3 of the European Convention on Human Rights, is, in fact, a fundamental value of the European Union, having an absolute character, as it is closely related to respect for human dignity.
It is, therefore, incumbent on the judicial authority of the executing State, which decides on the surrender, in the presence of concrete risks of violation of Article 3 ECHR (and 4 CDFUE), to assess whether there is a concrete danger that such treatment will occur to the detriment of the persons detained in the issuing Member State.
This assessment must be conducted on the basis of "objective, reliable, precise and appropriately updated elements on the conditions of detention in force in the issuing member state and evidencing the presence of deficiencies either systemic or generalized, either affecting certain groups of persons, or affecting certain detention centers."
The Court of Justice has, moreover, specified that "such elements may result in particular from international judicial decisions, such as the judgments of the EDU Court, from judicial decisions of the issuing member state, as well as from decisions, reports and other documents prepared by the bodies of the Council of Europe or belonging to the United Nations system."
5.2. This Court, in adherence to the indications coming from the E.U. Court, has long established what review the Court of Appeals must carry out when it is represented by the person requested to be surrendered, on the basis of objective, reliable, precise and appropriately updated elements, the serious danger of being subjected to inhuman and degrading treatment in the issuing State (among others, Sec. 6, no. 23277 of 01/06/2016, Barbu, Rv. 267296; Sez. 2, No. 3679 of 24/01/2017, The, Rv. 269211)Once the existence of a general current risk of inhuman treatment by the member state has been ascertained, through reliable sources, it must, in fact, be verified whether, in concrete terms, the person subject to the European arrest warrant may be subjected to inhuman treatment.
Thus, an investigation must be carried out aimed at ascertaining, through "individualized" information that must be requested from the issuing State, what prison treatment the surrendering person will concretely be subjected to with reference to those aspects considered by the reliable sources to be critical, as constituting situations of risk of being subjected to inhuman and degrading treatment.
Where the tenor of said information excludes such a risk, the Court of Appeals must limit itself, in accordance with the principle of mutual recognition, to taking note of it and proceeding with the surrender, without being able to demand any guarantees whatsoever on compliance with the conditions of detention (Sez. 6, no. 23277 of 01/06/2016, Barbu, in motivation; Sez. 2, no. 3679 of 24/01/2017, The, Rv. 269211; Sez. 6, no. 52541 of 09/11/2018, Moisa, in motivation).
If, on the other hand, such a risk is not excluded and the Court of Appeals has to refuse surrender, the judgment deciding on surrender must be considered to have been issued "as the state of the acts," so that it can be subject to reevaluation, should the obstacle to surrender disappear (Sez. 6, no. 23277, 01/06/2016, Barbu, in motivation; Sez. 6, no. 35290, 19/07/2018, Sniadecki, Rv. 273780).
5.3. Declining these well-established principles in the case at hand, it must be noted how the Court of Appeal, in violation of Article 2 of Law No. 69 of 2005, did not adequately exclude the existence of a concrete risk of violation of the fundamental right of the person requested to be surrendered not to be subjected to inhuman and degrading treatment due to the overcrowded conditions of the Chania Prison House.
In fact, the Court of Appeal of Trent, based on information received from the Greek authorities, found that, in that detention house, "the minimum space is 3-4 sq. m.; each cell has a bathroom with a sink and shower with hot water, a window and a heater."
In the face of the specific complaints made by the defense and the demonstration, based on the Report of the Committee for the Prevention of Torture of September 2, 2022 and the recent pronouncement of the European Court of Human Rights, in the judgment rendered in the Kargakis case, of a real risk of inhuman and degrading treatment, in violation of Art. 3 of the Charter of Fundamental Rights of the Union, the Court of Appeals merely incorporated the generic information rendered by the Greek authority and, therefore, gave merely apparent reasons on this decisive point for granting the request for surrender made by the foreign judicial authority.
5.4. The United Sections of this Court have, however, clarified that in the assessment of the minimum individual space of three square meters, to be ensured to each detainee so that the State does not incur the violation of the prohibition of inhuman or degrading treatment, established by Article 3 of the ECHR, as interpreted by the case law of the ECHR, regard must be had to the area that ensures normal movement in the cell and, therefore, furnishings that tend to be fixed to the ground, including, for example, bunk beds, must be deducted.
It was added that the so-called compensatory factors, consisting of the short duration of detention, dignified prison conditions, and 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 Art. 3 of the ECHR arising from the availability in the collective cell of a minimum individual space of less than three square meters, while, in the case of the availability of an individual space of between three and four square meters, the aforementioned compensatory factors contribute, together with others of a negative nature, to the unitary assessment of the [overall conditions of detention (Sez. U, no. 6551 of 24/072020, Ministry of Justice, Rv. 280433).
In the case at hand, the Court of Appeal of Trento [Bolzano detached section] did not correctly apply the indicated principles, as it merely stated generically that in the prison of Chania, a "minimum space of 3-4 sq. m. would be ensured to the person requested to be surrendered. ", without, however, ascertaining the criteria adopted in this calculation, the number of detainees per cell, the regime of detention to which the same would be subjected (e.g., open or semi-open), the hours for the performance of activities outside the cells, the period of detention to be spent in such regime (according to the criteria enunciated by the Edu Court, Grand Chamber, October 20, 2016, Mursic v. Croatia, No. 7334/13), which, moreover, in the present case is not of short duration.
The upholding of this ground of appeal determines the absorption of the further complaints put forward by the appellant.
6. In view of these findings, the appeal must be upheld and the judgment under appeal must be set aside, with reference back to the Trento Court of Appeal for new judgment on the point.
Annuls the appealed judgment and refers the case back to the Trento Court of Appeals for new judgment. Sends to the Clerk's Office for fulfillment of the requirements of Article 22, paragraph 5, of Law No. 69 of 2005.
Thus decided on 11/16/2022.