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Terrorism charges increase risk of torture and ban extradition (Cass. 18122/21)

1 April 2021, Cassazione penale

Extradition to India impossible due to danger of inhuman and degrading treatment: after all, India has never ratified the United Nations Convention against Torture and many reliable independent sources indicate the existence of a situation characterized by serious and widespread practice of torture for the purpose of extracting confessions and endemic violence throughout the Indian federal prison system.

The formulation of additional charges against the extradite referring to generic conduct of terrorism which, regardless of the concrete exercise of a criminal prosecution, are likely to expose him to investigative activities in relation to which the danger of being subjected to acts of torture even in the prison environment is by no means remote, requires an additional effort aimed at ascertaining their concrete content.

It is, moreover, a well-known fact that globally, within both states that do not respect the rule of law (Saudi Arabia, Iran, Egypt, Rep. People's Republic of China) as well as in countries formally with a multiparty political system but marked by strong authoritarian overtones (Russia, Turkey), accusations of terrorism frequently mask the exercise of repressive activities of political dissent manifested even in a peaceful form; in the not too distant past, moreover, even in countries that respect the rule of law such as the United States of America, a térrorism charge was sufficient to dramatically disqualify the procedural guarantees due to the accused.

Even taking into account the mutual independence between the present extradition proceedings and the administrative proceedings before the Territorial Commission for the Recognition of International Protection, one cannot, therefore, help but consider that signs of the extradite's possible exposure to the danger of torture have already been picked up there.

Court of Cassation
Sec. VI Criminal
No. 18122 Year 2021

 

Hearing Date: 01/04/2021

JUDGMENT

On the appeal brought by:

SSS, n. in India 21/11/1985

against the judgment No. 50001 of the Court of Appeal of Turin dated 07/01/2021

read the briefs, the appeal and the judgment appealed;

Hearing the report of Councilor Orlando Villoni;

heard the prosecutor in the person of Deputy Attorney General

Antonietta Picardi, who concluded for dismissal;

Hearing for the appellant from Attorney DG, substituting for Attorneys AF and AG, who insisted that the appeal be granted

 IN FACT

1.In the judgment under appeal, the Turin Court of Appeal declared that the conditions for granting the extradition request made by the authorities of the Republic of India (State of Gujarat) against SSS, who was made the subject of a domestic arrest warrant on charges of criminal conspiracy and importation of three drug consignments totaling 300 kg. approximately of heroin under Sections (Sections) 8(c), 21(c), 24, 25, 27(a) and 29 of the Narcotic Drugs and Psychotropic Substances (NPDS) Act of 1985, India's regulatory framework for combating drug trafficking.

Noting the absence of a bilateral extradition convention between Italy and India and the possibility of examining and possibly granting the request as an international courtesy, with a guarantee of reciprocity and on the basis of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances signed in Vienna on December 21, 1988, the Court of Appeals found that there were serious indications of guilt of the crime for which prosecution was being conducted (Art. 705(1) of the Code of Criminal Procedure), ruled out the existence of a risk of subjecting the extradite to capital punishment, found in Indian legislation an absolute normative guarantee to this effect (Art. 34(c) of the Extradition Act of 1962), similarly ruled out the risk of subjecting the extraditee to degrading treatment or treatment not respectful of human rights, referred to the decision of the Minister the resolution of the contrast determined by the acceptance of the extradition request with respect to the granting by the Territorial Commission for the Recognition of International Protection of Turin of subsidiary protection under Art. 32, paragraph 3, d. Igs. n. 25 of 2008, with a proposal to the Questore to issue a residence permit for special protection under the same legislation.

2. The extradite has appealed against the judgment in cassation, citing the following grounds for censure.

2.1. Violation of Article 698, paragraph 2, of the Code of Criminal Procedure in reaction to the actual risk of being sentenced to death. The appellant claims that he actually runs, pursuant to Art. 31(a) of the Anti-Narcotics Regulations (NPDS Act of 1985), the risk of being sentenced to death, not because of the crime for which extradition is requested, but because of the existence of another case pending against him -1-anfn3115, for crimes related to the production and trade of narcotics before the judicial authority of the State of Punjab and the consequent applicability of the above provision, which provides that the death penalty may be imposed against a person, already convicted of one of the offenses provided for in Articles 19, 24 and 27(a) who is subsequently convicted of an offense related to the production tal possession, trafficking, importation or exportation, transshipment of the narcotic substances listed in column A of the table and in the quantities indicated in column B.

2.2. Violation of Article 705 (2) (a) of the Code of Criminal Procedure in relation to the fact that the criminal procedure in India does not ensure respect for fundamental rights with reference to the reversal of the burden of proof provided for in Sections 35 and 54 of the NPDS Act of 1985. According to the appellant, the applicable Indian criminal law provisions (35 and 54 NDPS Act) expressly derogate from the principle of presumption of innocence both from the standpoint of ascertaining the subjective element and with regard to the ascribability of the conduct to the agent, posing insuperable obstacles to the grant of extradition as provisions contrary to the fundamental principles of the Italian state.

2.3. Violation of art. 705, paragraph 2, lett. a) cod. proc. pen. in relation to the circumstance that the foreign procedure does not ensure respect for fundamental rights with reference to the lack of a predefined term of maximum duration of pre-trial detention. Despite the fact that the Indian procedural system generally provides for a mechanism of computation of the maximum terms of pre-trial detention, the Anti-Drugs Act (Sec. 37 NDPS Act) stipulates that where the indictment involves "commercial quantities" of significance, the maximum terms are neutralized on the basis of a mere confirmation by the proceeding court of the indicative seriousness initially found, being in fact allowed sine die custody, with only the possibility of release on bail remaining. The indefinite protraction of pre-trial detention in the Indian trial system, due mainly to inadequacies of a structural nature, has, moreover, also provided the subject of criticism at the international level, in the substantial indifference of the country's judicial and legislative system.

2.4. Violation of Articles 698(1) and 705(2)(c) Proc. Code in reaction to the actual risk of being subjected to cruel, inhuman or degrading treatment. The appellant argues that the Territorial Commission for the Recognition of International Protection in Turin noted the registration against him of additional proceedings for terrorist offenses, for which many independent sources attest to the prevalence of abuse during police custody and interrogation. In addition, India has never ratified the UN Convention against Torture, and many reliable independent sources (July 6, 2007 written question to the appropriate Committee of the European Parliament; Human Rights Asia document, Law Commission of India report dated 10/30/2017, etc.) point to a widespread and serious situation of the practice of torture for the purpose of extracting confessions as well as endemic violence within the Indian state's prison system.

2.5. Violation of Art. 698, para. 1, Proc. Code in reaction to the risk of being subjected to persecutory or discriminatory acts. Additional reason preventing extradition is the applicant's membership in the Sikh minority and his origin from the region of Punjab, in relation to the ascertained massive use of torture by the Indian police forces against members of the Punjab separatist minority (Human Rights Watch document of September 27, 2013 poured into the record).

IN LAW

1.The appeal is well-founded in relation to the fourth ground of appeal, concerning the danger of subjecting the extradite to inhuman and degrading treatment, constituting grounds for refusal to extradite pursuant to Articles 698, paragraph 1, and 705, paragraph 2, lett. c) of the Criminal Procedure Code. As anticipated, the applicant alleges that the Turin Territorial Commission for the Recognition of International Protection noted the registration against him of additional proceedings for terrorist offenses, namely those referred to in Sections 17 and 18 of the Unlawful Activities Act (UAPA) of 1967 referring to acts of a terrorist nature and that, despite the request for additional information, the Indian government did not provide explanations on the nature of these charges, which are in addition to those contained in the extradition request.

It further deduces that many independent sources attest to the prevalence of abuse during police custody and interrogation, resulting in the use of torture to extract confessions within the Indian prison system.

India has, moreover, never ratified the United Nations Convention Against Torture, and many reliable independent sources (written question addressed on July 6, 2007 to and answer by the appropriate committee of the European Parliament; Human Rights Asia document on the practice of torture in India with references to documents from other international organizations, Law Commission of India report dated 10/30/2017, PVCHR report on torture in India dated 2008; Human Rights Watch document attached to the memorandum of 09/06020) indicate the existence of a situation characterized by severe and widespread practice of torture for the purpose of extracting confessions and endemic violence throughout the Indian federal prison system.

2. The College observes that the formulation of additional charges against the extradite referring to generic conduct of terrorism which, regardless of the concrete exercise of a criminal prosecution, are likely to expose him to investigative activities in relation to which the danger of being subjected to acts of torture even in the prison environment is by no means remote, requires an additional effort aimed at ascertaining their concrete content.

It is, moreover, a well-known fact that globally, within both states that do not respect the rule of law (Saudi Arabia, Iran, Egypt, Rep. People's Republic of China) as well as in countries formally with a multiparty political system but marked by strong authoritarian overtones (Russia, Turkey), accusations of terrorism frequently mask the exercise of repressive activities of political dissent manifested even in a peaceful form; in the not too distant past, moreover, even in countries that respect the rule of law such as the United States of America, a térrorism charge was sufficient to dramatically disqualify the procedural guarantees due to the accused.

Even taking into account the mutual independence between the present extradition proceedings and the administrative proceedings before the Territorial Commission for the Recognition of International Protection, one cannot, therefore, help but consider that signs of the extradite's possible exposure to the danger of torture have already been picked up there.

It will, therefore, be for another section of the Territorial Court to proceed to the necessary inquiries with the Indian authorities in order to acquire elements of knowledge on the nature of the further charges hypothesized or formulated against the extradite, to be evaluated together with the acquisition of information as up-to-date as possible regarding the practice of torture within the Indian prison system.

2. On the other hand, the other grounds of complaint formulated in the appeal should be disregarded.

2.1. As for the risk for the extradited person of being sentenced to capital punishment, it is worth noting that it actually appears to be only potential since it refers to other proceedings underway in the different State of Punjab (of which the appellant is an original officer) and that in the event of a conviction with recidivism it could in fact lead to the application of the death penalty. On this point, however, the Court of Appeals has already congruously noted that the extraditee has not renounced the principle of specialty and that, therefore, he cannot be subjected, if handed over, to proceedings for facts prior to those for which he is being extradited; moreover, the presence of Article 34(c) of the Indian Extradition Act of 1962 constitutes a sufficient guarantee of non-application of the death penalty, establishing the prevalence of the law of the granting state (in this case, Italy) where it does not contemplate said penalty. The College adds to these considerations that, despite the absence of a bilateral or multilateral conventional basis aimed at regulating the present extradition procedure, the requesting state remains internationally obliged with the granting state to respect the limits established with the surrender order, the violation of which could undermine, in a likely significant way, further possibilities of cooperation in criminal judicial matters.

2.2. As for, on the other hand, the grievance of failure to respect the fundamental rights of the accused due to reversal of the burden of proof in the applicable legislation (Sections 35 and 54 of the NPDS Act of 1985), it is worth preliminarily noting that the complaint was not timely raised before the Court of Appeals and cannot, therefore, form a benchmark for the purpose of establishing the legitimacy or otherwise of the contested measure. From an examination of the rules indicated by the appellant's defense, however, it can only be inferred that they simplify the prosecution's task of proving, both in terms of establishing the subjective element (Art. 35) and the imputability of the conduct (Art. 54), the responsibility of the accused in relation to certain factual situations, similarly to what also occurs in our legal system in cases of possession of a res whose possession is presumed to be illicit (weapons, drugs, things of illicit origin, see in particular Art. 54 of the NPDS Act - Presumption from the possession of illicit articles), subject to the possibility for the defense to provide contrary evidence. Therefore, it is not possible to identify in these regulatory safeguards provisions that are contrary to the fundamental principles of the Italian state, and moreover, their concrete application within the Indian procedural system evidently escapes any assessment that can be made here.

2.3. The grievance referring to the failure to respect fundamental rights (art. 705, par. 2, lett. a] cod. proc. penale in relation to art. 5, 6Corte di Cassazione - unofficial copy par. 3, Conv. EDU ) must also be disregarded under the profile that the Indian proceduralpenal system would not seem to provide in the concrete case for maximum terms of pre-trial detention.

The College notes that the same appeal correctly acknowledges the circumstance that the Indian procedural system provides in general terms for maximum terms of pre-trial detention, set forth in Section 436 - A of the Code of Criminal Procedure, the text of which is translated into Italian (p. 24 appeal). Rather, the appellant complains that in relation to the crime for which he is being prosecuted, a specific provision of the anti-drug law (Sec. 37 NPDS Act) allows the maximum term established by the law in general terms (half of the prescribed prison sentence) to be exceeded sine die on the basis of a mere confirmation, by the prosecuting judicial authority, of the circumstantial gravity initially considered, subject only to the possibility of remand on bail.

What is ultimately alleged, therefore, is not the non-existence of a procedural mechanism of predetermination of the maximum terms of pre-trial detention, but the fact that in relation to the crime of importation of significant quantities ("commercial quantities," according to Indian criminal terminology) of narcotics as in the case at hand, it is very likely that the pre-trial detention will be prolonged until conviction and execution of the sentence. Again, therefore, a particular domestic procedural practice of the requesting state cannot serve as an obstacle to surrender, especially when a procedural mechanism-formally respectful of the fundamental principle allegedly violated-actually exists.

2.4. The grievance based on the possible discrimination that the extradited person might suffer as a result of his membership in the Sikh religious minority was also not raised before the substantive court. In the appeal this membership is linked to the frequent use of torture by the Indian police force during separatist demonstrations dating back to the year 2013.

The complaint appears beyond general and as such must be disregarded.

It is also a well-known fact that separatist actions of the Sikh minority took place in the state of Punjab during the years 1983-1984, when in a spiral of actions and retaliation, there were pogroms and murders of members of the minority as well as the killing of the Indian prime minister at the time (Indira Gandhi) by one of her ethnic Sikh bodyguards. It is equally notorious, however, that since then the greater autonomy granted to the state of Punjab and the full religious, cultural, and legal recognition of the minority has greatly attenuated those tensions, configuring a situation that, if it does not exclude the existence of fringe groups that still cultivate separatist and revenge ideas, cannot, however, be defined as oppressive or discriminatory against that community.

3. The appealed judgment should, therefore, be annulled limited to the above point with referral of the acts to another section of the territorial court for new judgment.

FPOR THESE REASONS

annuls the judgment and refers the case back to another section of the Turin Court of Appeals for new judgment.

Sends to the Clerk's Office for the fulfillments pursuant to Article 203 disp. att. cod. proc. penale.

Thus decided, April 1, 2022