Reticent and incomplete information about prison conditions bans surrender in Cyprus investigative European Arrest warrant proceeding.
The lack of sufficient space in the cell and the possible limitations on freedom of movement, not compensated by a short duration of detention, nor of the certainty of dignified conditions of detention, at least from the point of view of security and physical safety, are factors that make clear the existence of the cause impeding the extradition of the extradite constituted by the concrete risk, for the same, of being subjected to inhuman or degrading treatment.
(automatic machine not official translation)
COURT OF APPEAL OF TRENTO
judgement 1/23 EAW
Feraury 1st, 2023
convened in council chamber in the persons of magistrates:
Dr. Gabriele PROTOMASTRO President
Dr. Ettore DI FAZIO Councilor
Dr. Aldo GIANCOTTI Councilor Ext.
pronounced the following
WITH CONCURRENT REASONING
In the extradition proceedings against:
XXX, born in
Protected was subject to a European arrest warrant issued by the judicial authority of the Republic of Cyprus (District Court of Nicosia) on 7/8/2022 for the crimes, provided for and punished by Cypriot law, of apprehension of property by means of false statements (Cap. 154, Art. 298), association for embezzlement (Cap. 154, Art. 302), money laundering (Law 22(I)/2021, Art. 4), committed in Cyprus from January to June 2022, for having, in conspiracy and association with other persons, obtained from one XXX, a tool trader, the total sum of € 67,270, by means of the false promise of delivery of goods at an advantageous price, which was never delivered, he having moreover denied any contact with the p.o. since June 2022, after receiving the said sum of money.
The EAW was issued following a precautionary measure.
XXX is currently detained as a result of the order dd. 4/1/2023 by which the precautionary measure of custody in prison was ordered by this Court, pursuant to Article 9 L. 69/2005, as amended.
Subjected to interrogation on 9/1/2023, pursuant to Article 10 L. 69/2005, et seq. XXX stated that he did not consent to the surrender to the Cypriot authority and that he did not waive the principle of specialty.
At the same hearing, defense counsel filed a brief, with attached documents.
On the same date, this Court, also in light of the exceptions raised by the defense, ordered the acquisition of information, through the Minister of Justice, from the competent authority of the Republic of Cyprus, in order to learn:
- in which prison XXX should be confined, should the request for surrender be granted;
- what are the crowded conditions within said prison;
-what the living conditions of the inmates inside said prison are, especially with regard to the space (area in square meters) available to each individual inmate and the relationships between inmates and between inmates and supervisory staff;
- whether XXX, in the event of detention in said prison, could be subjected to inhuman or degrading treatment or find himself in situations where his safety is at risk.
A hearing was set for decision on 20/1/2023.
On 19/1/2023, the response of the Ministry of Justice of the Republic of Cyprus was preceived, in English, without translation.
However, the defense counsel filed another brief, with new documents attached.
The proceedings were adjourned to today's hearing, pending transmission to this office of the translation by the Ministry of Justice.
The latter was received on 1/26/2023.
At today's hearing, the Attorney General concluded by requesting that XXX be surrendered to the requesting state; defense counsel concluded by requesting that the request be rejected.
ALL THAT BEING SAID, THIS COURT OBSERVES THE FOLLOWING.
1. The request for information to the Cypriot authority was made, as mentioned above, also in light of the defense arguments and allegations in the two briefs filed in the hearings of January 9 and 20, 2023.
In the first one, it is exposed that there is only one prison in the Republic of Cyprus, located in Nicosia, which is characterized by a high rate of overcrowding of the prison population (978 inmates, compared to a maximum capacity of 424) and the lack of the guarantee of a minimum space for each inmate. It also complains of the widespread practice within the prison to keep inmates in solitary confinement for days because of alleged disciplinary infractions, although not yet ascertained or even contested, and without any kind of control of the application of the sanction itself by prison staff. It is also complained that there are risks to the safety and life of prisoners, including on the basis of an official statement by the Attorney General of the Republic of Cyprus dated 11/25/2022.
In the second memorandum, defense counsel takes a critical stance on the information forwarded by the Cypriot authority following this Court's request, expressing negative assessments: with regard, once again, to the situation of overcrowding in the prison, also and again with specific reference to the square footage available to each prisoner within the cell; with regard to the actual absence of compensatory factors for this situation; with regard to the statements contained in the aforementioned response about the absence of cases of COVID-19 in the 19 months following the start of the pandemic; with regard to the reference to an ECHR pronouncement of 15/10/2020, in which it was allegedly recognized that the conditions of detention in Nicosia Prison are respectful of the principles established by the Convention, a pronouncement whose existence is not apparent from a search carried out on the Strasbourg Court's website via the Hudoc search engine; with regard to the silence maintained in the response in question about incidents of violence between inmates and between prison officers and inmates.
2. This Court finds that the response of the Cypriot Ministry of Justice to the request for information ordered on 9/1/2023 must be described as partly reticent and partly lacking.
As to the place of detention, it is pointed out that indeed the only institution in which XXX may be placed in detention is the Nicosia Central Prison.
Regarding the conditions of overcrowding, it must be said that the answer is not completely clear, especially with regard to the question of the space available for each detainee, which should be, again according to the Cypriot Ministry 's indication, equal to 7m² per person and in any case at least 4m² in the case of the presence of two or more detainees, again for each. Moreover, immediately afterwards it is acknowledged that, due to the overcrowding problem in the facility, three inmates share the same cell, but the surface area of this is not specified. Moreover, as the defense correctly points out, the issue of the presence of possibly fixed encumbrances, such as bunk beds, the area occupied by which, according to case law teaching, must be deducted from the "gross" area of the cell, in order precisely to be able to derive the minimum space to which the detainee is entitled (Cass. S.U. 24/9/2020 no. 6551), is not addressed. In any case, on p. 2 of the Cypriot authority's communication it is expressly acknowledged, in general terms, that the facility is characterized by overcrowding.
The latter is, moreover, confirmed in the report on visits to the prison itself by the Ombudsman of the Republic of Cyprus, published on 11/16/2022, which constitutes Annex 5 to the defense brief of 9/1/2023. On page 9 of the report, in the Italian translation, in addition to noting that the building facilities, which are dilapidated, among other things, remain inadequate to contain the large number of inmates, it is pointed out that in many cases the inmates share cells that are not of sufficient size to guarantee the individual the space that conforms to internationally recognized standards, nor are decent conditions of detention ensured.
3. Regarding the other living conditions of the detainees, the communication of the Cypriot authority highlights in a positive sense: the measures taken for the prevention of COVID-19; the good hygienic conditions, in general; the decision 15/10/2020 of the European Court of Human Rights, in relation to an appeal filed by a former detainee, concerning issues related to the physical and mental conditions of the subject, with reference to Art. 3 of the Convention, an appeal unanimously dismissed as manifestly unfounded, on the basis of the deemed good conditions of treatment of detainees; the fact that detainees are allowed to remain outside their cells from 07:00 to 21:00-21: 30; the possibility of receiving visits from relatives and friends, as well as communicating with the outside world via telephone or Skype; the good level of medical care of inmates, with regard to both physical and mental illnesses; the possibility for inmates to engage in physical activity, thanks to the equipped gyms existing in the facility, as well as sports activities, as well as to borrow books and DVDs from the library; and the variety and quality of meals offered to inmates.
4. It should be noted, however, that the Cypriot authority did not provide an answer to the question concerning the relations between inmates and between them and the supervisory staff; just as it cannot be said, consequently, to have provided an answer to the last question, namely, whether XXX, in the event of detention in said prison, could be subjected to inhuman or degrading treatment or be in a situation of risk to his own safety.
5. Having now to proceed to an overall assessment of the response provided by the Cypriot Ministry, we begin by noting that the latter 'acknowledges, at least implicitly, that the required standards are not met, first of all precisely because of the blatant disproportion between the number of inmates actually interned and the capacity of the facility, whereby three inmates, at least in general, find themselves occupying the same cell. Of the latter, moreover, the surface area is not specified, which is why it is impossible to understand whether or not each detainee has at his disposal an area of at least 3 m², as established by ECHR jurisprudence and the Supreme Court of Cassation, nor whether or not the available surface area - whatever its size - has been determined net of furnishings that tend to be fixed to the floor.
6. It is true that the non-availability of sufficient space for each detainee, as determined above, is not in itself such as to entail a violation of Article 3 ECHR, as recognized by the jurisprudence of the same Court (cited by the same defense counsel in the memorandum of 20/1/2022) and by the jurisprudence of the Supreme Court ( Sec. VI 09/11/2017 no. 53031), but this provided that three compensatory factors concur to the contrary, consisting of: the short duration of detention; sufficient freedom of movement within the prison; and dignified prison conditions (Cass. S.U. 6551/2020; Sec. II 13/7/2021 no. 27661; Sec. VI 9/11/2017 no. 53031).
6.1. In the case that is the subject of these proceedings, it should be noted:
1) The length of detention to which XXX will be subjected cannot be precisely determined. Proceedings are brought for the crimes, provided for and punished by Cypriot law, of apprehension of property by means of false statements, association for embezzlement, and money laundering. The first two rati are punishable, as learned at the MFA broadcast, by a maximum sentence of five years' imprisonment; the third by a maximum sentence of 14 years' imprisonment. Regardless of the time limits of pre-trial detention in prison, it must be considered that, in the event of conviction, there may be no solution of continuity between the custodial period and the execution of the prison sentence, as the prospect for the person concerned, cannot be said to be that of a short detention. At this point, since, it is reiterated, the three compensatory conditions must exist jointly, so much would suffice to conclude for the non-existence of compensatory factors such as to neutralize the inadequacy of the space available to the individual prisoner.
2) Moreover, freedom of movement, also related to the possibility of sports and recreational activities, obviously outside the cell, appears to be seriously limited by the practice, censured by the defense, of arbitrarily sanctioning inmates at the Nicosia Central Prison with solitary confinement, which also entails the loss of the possibility of spending time outside the cell (p. 6 of the 20/1/2023 memorandum). The existence of such a practice is confirmed in the above-mentioned report of the Ombudsman of the Republic of Cyprus, where it is reported that often the measure of solitary confinement in the individual cell of the inmate is used, for a period of 4+2 days, and at the same time there is a serious delay, on the part of the prison authority, in taking a decision on the alleged offence and indeed in many cases disciplinary proceedings are not even formally initiated; there has also been, in some of these cases, the restriction or suspension of some of the prisoner's rights, such as that of receiving visits and taking leave of absence (pp. 26-27); often the disciplinary proceedings are "settled" only with a final letter of apology from the detainee, without it appearing that the procedure provided for in the regulations is followed and that there is a formal final decision ( ibid. p. 28). It should be added that this situation also appeared to be in place at the time of the inspection carried out by the European Commission for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), performed between February 2 and 9, 2017, as per the report dated 04/26/2018 (attached as doc. 4 to the defense brief 20/1/2023: see p. 6 of the same report). In conclusion, these are practices that end up arbitrarily restricting the prisoner's freedom of movement outside the cell.
3) As for the third countervailing factor, namely that of prison conditions, it must again be noted that the Cypriot authority did not provide an answer to the question about the relations between prisoners and the relations between them and prison officers. Thus, a "reply" to what emerged in February 2017 during the audit conducted by the CPT is missing on this point. During the latter, the commission's delegation had received numerous complaints of mistreatment of inmates, in both physical and verbal respects, consisting among others of physical beatings and unjustified handcuffing, as well as numerous complaints of violence among the inmates themselves, among which there was an incident of sexual abuse that occurred precisely during the delegation's visit, moreover aggravated by the fact that the victim had not received any medical assistance, at least in the immediacy of the incident (p. 41/42).
The aforementioned Ombudsman's report notes that in each ward there is indeed a complaint box in which any detainee can submit a complaint to the Commissioner for the Administration and Protection of Human Rights and other bodies, including the CPT, but it points out that this box is located in a place covered by security cameras and therefore any initiative by the detainee is likely to be subject to censorship; moreover, in two wards it was found that the box was in such a condition that no writing could be inserted in it (p. 34).
Still referring to the failure to answer the last of the questions formulated with the request for information dated 9/1/2023, the press report attached to the defense brief bearing the same date cannot be ignored (doc. 7): this is a copy of the "Cyprus Mail" newspaper dated 9/25/2022, in which statements from the Office of the Attorney General of the Republic of Cyprus are quoted that "the management of the Nicosia Central Prisons is neither adequate nor effective, the facility is full of drugs and criminal activities, including the intimidation of witnesses both inside and outside the prison, which leads to an uncontrolled and extremely dangerous situation." "citing an investigation ordered into the alleged widespread use of cell phones and drugs in prisons by four independent investigators assigned to collect testimony and data, the Attorney General said it can now be confirmed that drugs and cell phones were widely trafficked in prisons, with the help of some guards."
Finally, as to the indication in the Cypriot Ministry's response of a decision issued on 15/10/2020 by the European Court of Human Rights, in which the appeal was allegedly dismissed on the basis of the prisoners' allegedly good treatment conditions, it must be considered with the defense that no trace of this ruling could be found on the ECHR website.
7) To recapitulate and conclude: the lack of sufficient space in the cell and the possible limitations on freedom of movement, not compensated by a short duration of detention, nor of the certainty of dignified conditions of detention, at least from the point of view of security and physical safety, are factors that make clear the existence of the cause impeding the extradition of the extradite constituted by the concrete risk, for the same, of being subjected to inhuman or degrading treatment.
Therefore, in view of the provision of Article 2 L. 69/2005, as amended, this Court decides that there should be no surrender of XXX to the Republic of Cyprus.
It also follows that the current custodial measure is revoked and therefore the immediate release of XXX, generalized above, if not detained for another cause.
for this reasons
Having regard to Article 17 L. 69/2005, as amended, this Court rejects the request for the surrender to the Republic of Cyprus of XXX, above generalized.
Revokes the measure of pre-trial detention in prison, ordered by order dated 04/01/2023, and orders the immediate release of XXX, if not detained for another cause.
Sends to the clerk's office for matters within its jurisdiction.
Trent, February 1, 2023
THE EXTENDER THE PRESIDENT