The purpose of political persecution disguised by a request for surrender for a common offence is a mandatory denial of the extradition request, since it may be considered to be in the presence of "disguised" extradition.
On the subject of investigative extradition, the Italian judicial authority, even where the applicable convention does not provide for the evaluation by the requested State of the serious indications of guilt, cannot limit itself to a merely formal check of the attached documentation, but must carry out, pursuant to art. 705 of the Italian Code of Criminal Procedure, a summary deliberation aimed at verifying, on the basis of the documents produced, the existence of elements against the extraditee.
(unofficial mechanic translation)
Court of Cassation
Sec. VI No. 31588 Year 2023
President: FIDELBO GIORGIO
Rapporteur: APRILE ERCOLE
Hearing Date: 14/06/2023 - Filing 20/07/2023
on the appeal brought by the
Attorney General of the Republic at the Court of Appeal of Bologna in the proceedings against
BB, born in * (Turkey) on */1984 (CUI **)
against the judgment of 21/03/2023 of the Court of Appeal of Bologna;
Having regard to the acts, the contested measure and the appeal
Having heard the report by Mr. Ercole Aprile, Counsellor;
Hearing of the Public Prosecutor, in the person of Deputy Prosecutor General Tomaso Epidendio, who concluded by requesting the dismissal of the appeal;
Hearing of Mr. MM and Mr. AB, counsel for the extradited person, who concluded by requesting the inadmissibility or dismissal of the appeal.
HELD IN FACT
1. By the above-mentioned judgment, the Court of Appeal of Bologna declared that the conditions for the acceptance of the extradition request submitted by the Turkish authorities to execute the international arrest warrant issued on 6 April 2022 by the Court of Instambul against Baris Boyun, who was under investigation in the context of criminal proceedings pending in the requesting State in which he was called to answer for the crimes of murder, personal injuries, threats, participation in a criminal association and violation of the rules on weapons, did not exist.
The territorial court noted that there were no conditions provided for by the codified regulations and the 1957 European Convention on Extradition to grant that request for passive extradition: and this was because, on the one hand, very confused evidence had emerged from the documentation transmitted against B, such as not to allow a deliberation, even a summary one, on the existence of evidence against the defendant, such as to allow an assessment respecting the constitutional principles of personal responsibility and the principle of guilt; on the other hand - the Court of Appeal emphasised - there was no certainty that B did not belong to the Kurdish ethnic group and to the pro-Kurdish HDP party (as he claimed), a party whose members are notorious victims of discriminatory and violent acts by the central government. As a result, there was a real risk that the extradited person, although formally charged with common and not 'political' crimes, could be subjected to inhuman and degrading treatment in a Turkish prison.
2. The Prosecutor General at the Court of Appeal of Bologna appealed against this judgment on the following grounds.
2.1. Infringement of the law in relation to Articles 705(1) and 719 of the Code of Criminal Procedure, inasmuch as the District Court erroneously excluded that the evidence against Boyun was not sufficiently representative of the reasons for the accusation made against the defendant in view of the fact that there are several witnesses and the investigations carried out by the judicial police appear capable - from the perspective of the criminal procedural system of the State requesting extradition - of confirming that the above-mentioned person is the head of a criminal organisation dedicated to the commission of 'common' crimes of various kinds, including the commission of murders and injuries with the use of firearms, as well as crimes relating to the management of clandestine betting.
2.2. Infringement of the law, in relation to Articles 705(2) and 719 of the Code of Criminal Procedure, in that the Court of First Instance unjustifiably underestimated the information provided by the Turkish judicial authorities on the characteristics of the detention facility where the person concerned is to be detained, from which it could be inferred that Boyun will be housed in a cell with characteristics and dimensions appropriate to ensure the dignity of detention, and that the Turkish prison system, apart from general problems of overcrowding, provides for every kind of detention, and that the Turkish prison system, apart from general problems of overcrowding, provides for the detention of the person concerned in a cell with the appropriate characteristics and dimensions to ensure the dignity of detention.
that the Turkish prison system, apart from general problems of overcrowding, does in any case provide for 'mechanisms' for monitoring the actual conditions of imprisonment, such as to ensure the protection of the rights of B, who is charged with 'common' crimes and not also with terrorist or purely 'political' offences.
CONSIDERED IN LAW
1. The Court considers that the appeal must be dismissed.
2. The first ground of the appeal is manifestly unfounded.
The principle according to which, on the subject of procedural extradition, the Italian judicial authority, even where the applicable convention does not provide for an assessment by the requested State of the serious indications of guilt, may not confine itself to a merely formal check of the attached documents, but must carry out, pursuant to Article 705 of the Code of Criminal Procedure, a summary examination aimed at verifying, on the basis of the documents produced, the existence of serious indications of guilt, a summary deliberation aimed at verifying, on the basis of the documents produced, the existence of elements against the extradited person (in this sense, among many others, Sec. 6, no. 8063 of 21/02/2019. A., Rv. 275088; Sec. 6, no. 2037 of 05/12/2018, dep. 2019, Huang, Rv. 275424; Sec. 6, no. 43170 of 17/07/2014, Malatto, Rv. 260042).
The Court of Appeal of Bologna correctly applied this hermeneutic criterion, stating, with reasons in which no manifest illogicality can be recognised, how the Turkish judicial authority had attached to the extradition request a mere list of offences allegedly committed by Boyun, with a mere description of conduct, most of which was materially attributed to persons other than the defendant, who had been called to answer for those actions in his capacity as mere head of a criminal organisation; and with a generic listing of sources of evidence, without, however, a proper connection between each element of knowledge and each individual charge, above all characterised by assertions as to its demonstrative value (see pp. 2-5 contested judgment).
Nor do the criticisms formulated by the appellant Attorney General's Office lead to a different conclusion, who has essentially ended up by emphasising, contrary to the District Court's opinion, the rather indeterminate content of the accusatory statements of a series of 'protected' witnesses, whose personal details or other data enabling their reliability to be tested, have not been provided.
3. The second ground of the appeal is unfounded.
This Court of Cassation has already had occasion to deal with an issue similar to that which is the subject of the appeal under consideration today, clarifying that, on the subject of passive extradition to Turkey, it is necessary to assess in concrete terms, in relation to the provisions of Article 705(2) of the Code of Criminal Procedure the detention conditions that will be ensured to the requested person, the application of the Convention for the Protection of Human Rights having been formally suspended in that State, since July 2016, and arbitrary detentions and generalised torture practices having been found there within the prison facilities, which determine a high level of risk of inhuman and degrading treatment not limited only to political prisoners (thus Sec. 6, no. 26742 of 20/04/2021, Akdag, Rv. 281820).
In particular, that pronouncement noted that the situation in that country had "worsened after the events of the attempted coup d'état of 15 July 2016, following which the Government of Turkey, on 21 July 2016, in an official communiqué to the Council of Europe, declared that it wished to avail itself of the derogation provided for in Art. 15 of the Convention for the Protection of Human Rights, to which it accedes as a Contracting Party ...(with the consequence)... that today a number of defence rights of the accused in criminal proceedings are drastically limited, with a sharp increase in the powers of the police".
In this context - it was added in that pronouncement - which had been found by the content of Amnesty International's report for the year 2019-2020, from which new credible allegations of torture and ill-treatment had emerged, the Council of Europe's Anti-Torture Committee had intervened, which had confirmed the existence of those forms of inhuman and degrading treatment of a large number of detainees, regardless of the 'common' or 'political' type of detainee concerned.
With respect to this framework, the information elements highlighted by the Court of Appeal of Bologna appear to have justifiably increased concerns about the criticality of prisons in Turkey and the problematic nature of the respect for fundamental rights of persons detained in those facilities.
It should not be overlooked how an authoritative international non-governmental organisation has recently returned to reiterate that 'investigations, prosecutions and convictions of human rights defenders, journalists, opposition politicians and others have continued, albeit without any legal basis', as well as illegal restrictions on participants in parades and public demonstrations, and also to highlight the persistence of torture and ill-treatment in prisons, by "a large group of guards", particularly in a prison in Istanbul and other detention facilities (thus in Amnesty International Report 2022-2023).
These negative aspects were also recalled by the Council of Europe's Anti-Torture Committee in its most recent report published in August 2020 on the state of prisons in Turkey; as well as by the European Parliament which, in its resolution of 21 January 2021 on the human rights situation in Turkey, highlighted how the authorities of that country, disregarding the indications contained in specific rulings of the European Court of Human Rights, which had established the existence of repeated cases of illegal application of pre-trial detention, had continued the practice of prolonged illegal imprisonment of numerous persons on politically motivated charges. The European Parliament, in that resolution, significantly expressed 'deep concern about the shrinking space for civil society and the continuing deterioration of fundamental rights and freedoms and the rule of law inTurkey'.
In that motivational context - in which the tenor of the grievance formulated by the appellant concerning the failure to assess the legislation in force in Turkey on the jurisdictional guarantees guaranteed to detainees, or concerning the failure to take into consideration the information provided by the authority of the foreign State on the characteristics and dimensions of the prison cell in which the person concerned is supposed to be held - it should be noted that the second ground of the appeal does not confront the actual arguments on the basis of which the Court of Appeal rejected the request for extradition: namely, the fact that B had justifiably represented the risk of being subjected, if handed over to Turkey, to inhuman or degrading treatment, since he is of Kurdish ethnic origin (as would appear to be confirmed by the region of origin of both his parents) and affiliated to a pro-Kurdish party.
From this point of view, the indications coming from the jurisprudence of the European Court of Strasbourg are diriment, which, albeit with reference to the matter of international protection, condemned a member State of the Council of Europe for having delayed the examination of an asylum request presented by a Turkish citizen and for having been given by the relative national authority a favourable opinion on the acceptance of the request for the extradition of that subject, who was found to be of Kurdish ethnicity and had fled from Turkey, when there was a real risk that the person concerned, if returned to his country of origin, might be subjected to torture or inhuman or degrading treatment (European Court of Human Rights, B. A.C. v. Greece, 13/10/2016).
The fact that, in the present case, the extraditee has fulfilled his burden of alleging the elements from which it can be concretely inferred that the request for extradition to a foreign country may prelude the violation of fundamental human rights, allows us to reaffirm, also in relation to the case under examination today the principle enunciated by this Court of Cassation on the basis of which it has been affirmed that the purpose of political persecution disguised by a request for surrender for a common offence is compulsory cause for the rejection of the extradition request, since it can be considered that there is a "disguised" extradition (in this sense, Sez. 6, no. 10656 of 01/03/2022, Sivakova, Rv. 283006).
These elements make it possible to rule out the possibility that the judges on the merits committed any breach of the law when, in the face of concrete data revealing the problematic condition of detainees in Turkish prisons, they considered that the foreign authority's generic replies to the requests for additional information were incapable of overcoming those concrete doubts as to the dangers of treatment that the extradited person might suffer, in breach of the supranational rules protecting the fundamental rights of the individual.
P. Q. M.
Dismisses the appeal. Sends it to the clerk's office for compliance with Article 203 disp. att. cod. proc. pen.
Thus decided on 14/06/2023