Extradition proceedings consist of two stages, jurisdictional and administrative: within the jurisdictional stage before the ordinary criminal court, there is a special assessment of the need for the extradition not to violate human rights, by virtue of the provisions of Art. 698 and 705 of the Code of Criminal Procedure, in the administrative phase, there is the scrutiny regarding the existence of causes that may justify the exercise of the optional power to refuse extradition on grounds concerning the "essential interests" of the state (Article 697 of the Code of Criminal Procedure).
Therefore, between the extradition proceeding and the international protection proceeding there is no prejudicial nature, such as to suspend the former pending the outcome of the latter,
The nature of a "high administration" act of the passive extradition decree, by which the minister assesses, based on broad considerations inherent to the Republic's international relations, if extradition shall be granted.
While in the jurisdictional phase the interest of the extraditee in the protection of his or her fundamental rights stands out (hence, precisely, the jurisdictional nature of the phase), in the subsequent administrative phase, which opens only following the final judgment in favor of extradition, the State's interest in the care of diplomatic and international relations with other states comes into relief: this interest is entrusted to the evaluation of the Minister of Justice, whose decision, which is the result of broad discretion, can be reviewed in court only for macroscopic and gross illogicality or blatant misrepresentation of the facts, otherwise entangling the administrative judge in choices institutionally referred exclusively to the government authority.
(unofficial automatic translatiomn, original sentence here)
Regional Administrative Court for Lazio
(hearing. 15/12/2021) reasonment filed 28-02-2022,
sentence no. 2326
has pronounced this
on the appeal numbered General Register No. 6287 of 2015, brought by -OMISSIS-, represented and defended by ADM lawyer, with a digital address as in PEC from Registri di Giustizia and an address for service at his office in Rome, **
Ministry of Justice, in the person of its legal representative pro tempore, represented and defended by the Avvocatura Generale dello Stato, domiciled ex lege in Rome, via dei Portoghesi, 12;
for the annulment
- of the decree of the Minister of Justice pro tempore dated November 18, 2014, notified on December 22, 2014, as well as all measures adopted in execution of the aforementioned decree;
Having seen the appeal and its annexes;
Having seen the writ of summons filed by the Ministry of Justice;
Having seen all the acts in the case;
Rapporteur at the public hearing on December 15, 2021, Dr. Filippo Maria Tropiano and heard for the parties the defense attorneys as specified in the minutes;
Course of the proceedings - Grounds for the decision
The applicant challenged the extradition decree indicated in the epigraph, issued by the Minister of Justice on December 22, 2014, by virtue of which the exponent was ordered to be handed over into the hands of the Ukrainian authorities.
The petitioner complained of the illegitimacy of the act, by virtue of articulated legal grounds, and concluded for the annulment of the measure and for the recognition of compensation for damages derived from it.
The administration appealed, contesting the appeal.
By Order No. -OMISSIS-/2015, the Board dismissed the fast track application.
The case was retained for decision at the public hearing on December 1, 2021.
2. The appeal unfounded.
3. It is worth recalling the facts of the case. On November 20, 2012, Mr. -OMISSIS- was arrested by the Police pursuant to Articles 715-716 of the Criminal Code on the basis of an arrest warrant issued by the Ukrainian authorities. Upon receipt of the prescribed documentation, the Bologna Court of Appeals, in Judgment No. 13141/2013 of October 24, 2013, declared that the conditions for granting the extradition request were met. Pending the proceedings aimed at extradition, the extradite brought an application for international protection before the competent territorial commission. On July 31, 2014, the territorial commission rejected the application for protection. Against the order denying recognition of international protection, the extradite brought an opposition before the Civil Court on October 10, 2014, resulting in the ex lege suspension of the order issued by the territorial commission. The Bologna Court of Appeals, in defining the judgment regarding the existence of the conditions for granting extradition, assessed the grievances, raised by the person subject to extradition proceedings, about possible violations of fundamental rights that he might have suffered in the country of origin. In particular, the territorial court noted how it did not appear on the record that considerations relating to race, religion, sex, nationality, language, political opinions or personal conditions would be influential in the foreign proceedings against the extradite. The Court also noted how complaints from international organizations about violations of fundamental rights that were being perpetrated in Ukraine related merely to contingent situations and did not concern de quo. In a ruling dated October 22, 2014, filed on October 31, 2014, the Supreme Court declared the appeal against the reported ruling inadmissible. In compliance with the deadlines set forth in Article 708 of the Code of Criminal Procedure, on November 18, 2014, the Minister of Justice signed the decree granting extradition, which was challenged in the introductory appeal. On December 22, 2014, that is, on a date subsequent to the Territorial Commission's order denying international protection, the extradite was handed over to Ukrainian authorities.
4. Having said this in fact, with the first two grounds of appeal, the exponent assumes that the Minister should not have decided on the extradition request, that is, he should have revoked the favorable decision, due to the pendency of the proceedings for the recognition of international protection.
And in fact, pursuant to Article 7 of Legislative Decree No. 25 of 2008, the asylum seeker has the right to remain in the territory of the State until the decision of the Territorial Commission, the effectiveness of which remains suspended in the event of a challenge in the courts, as a result of Article 19, co.4, Legislative Decree No. 150 of 2011.
The assumption is unfounded.
Indeed, Art. 7, para. 1, Legislative Decree No. 25 of 2008 does not neutralize the Minister's power/duty to deliberate, promptly and in any case, on the extradition request on the basis of Art. 708 of the Code of Criminal Procedure, without any violation of the principle of non-refoulement being able to be profiled.
Premised on the fact that extradition proceedings are scanned into two stages (jurisdictional and administrative), it is worth noting that within the jurisdictional stage before the ordinary criminal court, there is a special assessment of the need for the extradition not to violate human rights, by virtue of the provisions of Art. 698 and 705 of the Code of Criminal Procedure; while, in the administrative phase, there is the scrutiny regarding the existence of causes that may justify the exercise of the optional power to refuse extradition on grounds concerning the "essential interests" of the state (Article 697 of the Code of Criminal Procedure).
Therefore, between the extradition proceeding and the international protection proceeding there is no prejudicial nature, such as to suspend the former pending the outcome of the latter, as clarified several times by the Supreme Court itself (see Cass. No.29910/2019; no.540 /2020, according to which art. 7 Legislative Decree No. 25 of January 28, 2008, does not entail the suspension of the procedure for granting extradition, but within the scope of its powers under art. 708, c.p.p., namely adopted the extradition decree, at the time of delivery, the Administration assesses, within the scope of its authoritative powers, the outcome of the application for international protection).
This assumption is consistent with the finding that the existence of a jurisdictional phase in extradition proceedings, deputed to ascertaining respect for human rights, means that such proceedings can ordinarily be concluded despite the simultaneous pendency of the international protection proceedings, without a true relationship of pre-judgment being configured between the two proceedings.
Nor, as sharedly deduced by the defense of the court, can a sort of "anticipation" of the principle of Article 33 of the Geneva Convention be invoked to one who is not the holder of the right to international protection and for the sole fact that his application is not yet definitively decided, without prejudice to the discretionary powers of the ministerial authority in the executive phase, pursuant to Article 708 of the Code of Criminal Procedure, or a request for a postponement of the decision can be justified.
On the other hand, as clarified by administrative jurisprudence (CdS No. 5019/2021), the nature of a "high administration" act of the passive extradition decree, by which the minister assesses, based on broad considerations inherent to the Republic's international relations, the an of extradition, should be noted.
Notably, the Supreme Administrative Court stated that while in the jurisdictional phase the interest of the extraditee in the protection of his or her fundamental rights stands out (hence, precisely, the jurisdictional nature of the phase), in the subsequent administrative phase, which opens only following the final judgment in favor of extradition, the State's interest in the care of diplomatic and international relations with other states comes into relief: this interest is entrusted to the evaluation of the Minister of Justice, whose decision, which is the result of broad discretion, can be reviewed in court only for macroscopic and gross illogicality or blatant misrepresentation of the facts, otherwise entangling the administrative judge in choices institutionally referred exclusively to the government authority.
It must be reiterated that the very presence, in the sectoral regulations, of the necessary scrutiny by the Judicial Authority regarding the respect of the fundamental rights of the extradited person determines the indifference of the extradition procedure with respect to the possible procedure for international protection activated in parallel by the person concerned.
And this is because, it is worth reiterating, there is already an appropriate judicial review to guarantee the rights of the extradite, which are deliberated first by the Court of Appeals, then, possibly, also by the Court of Cassation, moreover exceptionally competent "also for the merits" (art. 706 c.p.p.).
As for, then, Article 7, paragraph 2, Legislative Decree no. 25 of 2008, bearing the exceptional hypotheses in which the general principle affirmed by paragraph 1, according to which "the applicant is authorized to remain in the territory of the State until the decision of the Territorial Commission," does not apply, it must be noted that this is a provision that concerns only the internal scope of the protection procedure but must be coordinated with the more general binding legislation on extradition, not giving, it is repeated, any prejudicial nature between extradition proceedings and international protection proceedings; rather, the latter proceeding implies an even more extensive screening because of its general purpose, which is aimed at improving international cooperation in the field of crime suppression.
As for Directive 2013/32/EU, cited in the parties' defense briefs, it is noted that it provides in Article 9 that: - "applicants shall be allowed to remain in the Member State, for the exclusive purpose of the procedure, as long as the determining authority has not taken a decision" (paragraph 1); - "Member States may derogate from this provision only if the person concerned makes a subsequent application under Article 41, or if they intend to surrender or extradite, where appropriate, a person to another Member State pursuant to obligations under a European arrest warrant or otherwise, or to a third country, or to a court or international criminal court" (paragraph 2); - "Member States may extradite an applicant to a third country under paragraph 2 only if the competent authorities are satisfied that the extradition decision will not result in direct or indirect 'refoulement' in violation of that Member State's international and Union obligations" (paragraph 3).
Thus, paragraph 1 expressly specifies that the ex lege authorization to remain in the territory of the state applies "for the exclusive purpose of the procedure," i.e., without prejudice to the requirements related to separate and competing "procedures"; - paragraph 2 expressly mentions, as an exception that states may provide for, surrender to a "third" state, i.e., not a member of the Union - paragraph 3 makes the possibility of extraditing an applicant for protection conditional on a finding that the extradition decision itself does not violate his or her conventionally and Union-established fundamental rights, i.e., precisely what the jurisdictional phase of extradition proceedings ascertains.
The ministerial conduct in nothing therefore deviated from the aforementioned precepts.
As for domestic law, the Collegium observes that Article 708, paragraphs 1 and 2, of the Code of Criminal Procedure provides a peremptory term of forty-five days for the issuance of the extradition decree following a judgment in favor of extradition, after which the person concerned must be set at liberty. The provision does not provide any exception for the case of pending international protection proceedings: this means that the pendency of such proceedings is irrelevant, since, otherwise, the mere formulation of an application for international protection would be sufficient to paralyze the extradition and set the extradite at liberty. Paragraph 5 of the provision itself identifies a fifteen-day time limit, starting from the issuance of the extradition decree, for the material execution of the extradition itself, with only one express exception and that is the precautionary suspension of the ministerial decree.
While any decision granting international protection, where it occurs prior to the Minister's decision on the extradition request, i.e., prior to the execution of the extradition decree, could at most count as a ground for refusal of extradition (pursuant to Articles 698 and 705(2) of the Code of Criminal Procedure), supra to what has already been established by the judgment.
In the present case, the Bologna Court of Appeals evaluated and rejected the extraditee's grievances pertaining to the alleged danger of violation of fundamental rights by the Ukrainian authorities. Moreover, the extradition decree was executed after the Territorial Commission's decision to reject the granting of international protection.
Finally, the extradite applied for international protection only during the delays in the extradition proceedings and therefore, as the Council of State held, "it would be incongruous to consider that such a causally "derivative" procedure could condition the prior "derivative" judgment. Consequently, it must be held that the extraditional procedure remains insensitive to any further assessment pertaining to the procedure for granting international protection.
The Minister correctly and logically assessed the situation of Mr. -OMISSIS- and, within the scope of his discretionary powers of high administration, issued the Decree of extradition de quo which is therefore not censurable.
5. The further grounds of appeal are also unfounded.
The exponent complains that, before putting the Extradition Decree into execution, the Minister did not wait for a possible appeal, which, moreover, was prevented by the fact that the notification took place on the occasion of the delivery to the Ukrainian authorities.
On this point it is worth noting that, as is clear from the case file, by a note dated November 19, 2014, the Ministry instructed the Prosecutor General's Office in Bologna to notify the interested party and the Ministry of the Interior of the extradition decree, as well as to make contact with the Ukrainian authorities to set the date and place of the surrender in application of Article 18 of the European Convention on Extradition and Article 708 of the Code of Criminal Procedure. The date of surrender was thus set for December 22, 2014. On December 16, 2014, in the imminence of the delivery, the Ministry noted the non-appeal of the extradition decree (and the consequent absence of a monocratic precautionary measure suspending its execution), and also the non-existence, at present, of supervening conditions preventing extradition with respect to what had been ascertained in the courts and in the decision pursuant to art. 708, paragraph 1, c.p.p., the mere pendency of the proceedings for the recognition of international protection not being capable of changing the situation.
Hence the correctness of the procedure followed.
The execution of the extradition decree, which took place more than a month after its issuance, did not even violate Article 21 bis of Law No. 241 of 1990, given that it is subsequent to the communication of the decree itself to the interested party and that it was before an act of immediate execution.
6. In light of the above considerations, all grounds of appeal are unfounded, resulting in the rejection of both the annulment application and the claim for compensation. In fact, the constituent elements of the latter are lacking, first and foremost the alleged illegitimacy of the measure; while it is certainly not possible to rely, for internal purposes, on feared damages attributable to alleged judicial errors that were committed in the criminal proceedings held in Ukraine.
The appeal must therefore be dismissed in its entirety.
There are, however, the legal conditions to offset the costs of litigation between the parties to the case.
The Tribunale Amministrativo Regionale per il Lazio (Section One), definitively ruling on the appeal, as proposed in the epigraph, dismisses it.
Orders that this judgment be executed by the administrative authority.
Considering that the prerequisites under Legislative Decree No. 196 of June 30, 2003 and Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016 exist to protect the rights or dignity of the interested party, sends to the Secretariat to proceed to the obscuration of the personal details as well as any other data likely to identify the natural persons mentioned in this order.
Thus decided in Rome in the council chamber on December 15, 2021 with the intervention of the magistrates:
Antonino Savo Amodio, President
Lucia Maria Brancatelli, First Referee
Filippo Maria Tropiano, First Referee, Extender