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Refugee cannot be extradited to home country (CA Turin, 73/24)

30 October 2024, Turin Appeals court

Extradition of a third-country national beneficiary of refugee status ios precluded under Italian and EU law as long as the conditions for enjoying that status are met. 

(Refugee status or asylum may be granted to people who have been persecuted or fear they will be persecuted on account of race, religion, nationality, and/or membership in a particular social group or political opinion.)

case No. 73/ 2024

COURT OF APPEAL OF TURIN

Second Criminal Section

read the record of provisional arrest for extradition purposes of:

XX ,born 7.1.1960 in Turkey, Turkish citizen, residing in **;

defended by attorney Nicola Canestrini of the Trento Bar,

noting that the arrest was executed on Oct. 29, 2024 at 3:00 p.m. in ** by officers on duty at the Guardia di Finanza ** pursuant to Articles 716 and 717 of the Code of Criminal Procedure, in connection with arrest warrant No. 2022/** issued on 3/24/2022 by the Istanbul General Parquet (Turkey) under Judgment No. 2008/** handed down on **/2008 by the Istanbul Court of Assizes (Turkey), for the crime of participation in a terrorist organization, provided for and punished by Art. 6 of Law 5252, 314/2 of Law 5237, 5 of Law 3713, 61, 62, 63, 53/1-2-3, 58/7-8-9 of Law 5237.3, 291 of the Turkish Penal Code, for which the extradited person was sentenced to 6 years and 3 months of imprisonment (remaining sentence to be served 5 years 9 months and 18 days of imprisonment);

noted that, from the documents to date transmitted, it appears that XX has been charged with participation in the armed terrorist organization known as the PKK, established in the year 2000;

considering that the fact which is the subject of the measure is also provided for as a crime by the Italian law (art. 270 bis c.p.) and that in relation to the same it does not appear that a conviction has been issued by the Italian Judicial Authority;

noted that the indicative elements of the wanted person correspond to those of the arrested person, identified by means of refugee travel document No. R***, issued by the Swiss authorities on *** in accordance with the Convention of 28.7.1951 (Refugee Convention);

noted that the arrest report was transmitted to this Court of Appeals on 30.10.2024 at 9:51 a.m., that the legal deadlines were met, and that the arrest ordered by the judicial police was lawful, given the indication that XX was to be sought for arrest for extradition purposes;

considering that, as is evident from the identity document exhibited by XX at the time of his arrest, the Helvetic Confederation has granted the aforementioned person the status of refugee and that, as can be deduced from the documentation forwarded by the defense counsel of the extradited person to the Ministry and - for information - to this Court, the aforementioned State has already rejected an extradition request submitted by the Republic of Turkey in the year 2023 in application of Art. 3 of the European Convention on Extradition of 13.12.10957 and 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 4.11.1950, on the grounds that, if extradited, XX could be persecuted because of his political views;

considering that the prohibition of deportation and return to the border to an “unsafe place” enshrined in Article 33 of the 1951 Geneva Convention (non-refoulement) constitutes a customary international principle of an absolute nature, which must be accorded ius cogens status as a projection of the prohibition of torture (Cass., sect. VI, 16.12.2021 no. 15869, Rv. 283189)

considered that, according to the Court of Justice of the European Union, Article 21(1) of Directive 2011/95/EU of the European Parliament and of the Council of 13.12.2011, in conjunction with Articles 18 and 19(2) of the Charter of Nice, must be understood as precluding the extradition of a third-country national beneficiary of refugee status, as long as the conditions for enjoying that status are met (Court of Justice, Grand Chamber, June 18, 2024);

noted that, pursuant to Article 714 para. 3 of the Code of Criminal Procedure, coercive measures may not be ordered if there are reasons to believe that the conditions for a favorable extradition judgment are not met;

considering that the purpose of coercive measures under Articles 714 et seq. c.p.p. is exclusively that of ensuring the surrender of the requested subject;

held that, in the case at hand, the elements set forth above point to the foreseeability of a decision contrary to the extradition request;

held therefore that the provisional arrest should be validated and the immediate release of the arrested person should be ordered if not detained p.a.c.

P.Q.M.

Having regard to Articles 714 par. 3 and 716 par. 3 of the Code of Criminal Procedure,

validates the provisional arrest for extradition purposes made against XX;

does not apply any coercive measures against the aforementioned;

Orders the immediate release of XX  unless detained for other cause. Directs the Clerk's Office to give notice to the Attorney General's Office in Chambers and notice to the person concerned and to his defense counsel, Attorney Nicola Canestrini of the Trento Bar.

Mandates the Chancery to give immediate notice to the Ministry of Justice.

Turin, 10/30/2024 11:35 a.m.

Deputy Counsel Dr. EC