Home
Firm profile
Readings
Contacts
Firm profile

Articles

Trust needs facts, not words: diplomatic assurances in extradition proceedings

10 December 2020, Irene Iannelli e Nicola Canestrini
palestra lego allenamento atleta peso
I diritti delle immagini appartengono ai rispettivi proprietari (che saremo lieti di indicare in caso di richiesta).

Can diplomatic assurances really assure respect for fundamental rights in extraditions and european arrest warrant proceedings?

The term “diplomatic assurances”, as used in the context of the transfer of a person from one State to another, refers to an undertaking by the receiving State to the effect that the person concerned will be treated in accordance with conditions set by the sending State or, more generally, in keeping with its human rights obligations under international law.

Reliance on diplomatic assurances has been a longstanding practice in extradition relations between States, where they serve the purpose of enabling the requested State to extradite without thereby acting in breach of its obligations under applicable human rights treaties, national – including constitutional – law, and/or provisions in extradition law which would otherwise preclude the surrender of the individual concerned.

Their use is common in death penalty cases, but assurances are also sought if the requested State has concerns about the fairness of judicial proceedings in the requesting State, or if there are fears that extradition may expose the wanted person to a risk of being subjected to torture or other forms of ill-treatment (see UNHCR Note on Diplomatic Assurances and International Refugee Protection, 2006).

1. Diplomatic assurances in the international extradition practice

Diplomatic assurances given in extradition proceedings by the issuing State can’t be uncritically accepted by the requested state, since its Judicial Authorites are required to check if there is a concrete and effective risk of violation of the requested person’s human rights.

This results form the assesmment made by International Human Rights institutions as well as NGO's.

 So the European Court of Human Rights in the Saadi v. Italyjudgment (GC, application no. 37201/06, judgment of 28 February 2008), stated that the weight to be given to assurances from the receiving State depends, in each case, on the circumstances prevailing at the material time(par. 148).

 Moreover, in the Ismoilov v. Russiajudgment (application no. 2947/06, judgment of 24 April 2008), the Court reiterated those principles, by stating that diplomatic assurances were not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where reliable sources had reported practices resorted to or tolerated by the authorities which were manifestly contrary to the principles of the Convention(par. 127).

 Just one year later, in the Kaboulov v. Ukrainejudgment (application no. 41015/04, judgment of 19 November 2009), the Court cleared that Diplomatic assurances do not absolve the Court from the obligation to examine whether they in practice provided a sufficient guarantee that the applicant would be protected against the risk of ill-treatment prohibited by the Convention(par. 198).

“It is better to offer no excuse than a bad one.”
George Washington

 Again, in the Othman (Abu Qatada) v. United Kingdom(application no. 8139/09, judgment of 17 January 2012), the ECHR reiterated that In any examination of whether an applicant faces a real risk of ill-treatment in the country to which he is to be removed, the Court will consider both the general human rights situation in that country and the particular characteristics of the applicant. In a case where assurances have been provided by the receiving State, those assurances constitute a further relevant factor which the Court will consider. However, assurances are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment. There is an obligation to examine whether assurances provide, in their practical application, a sufficient guarantee that the applicant will be protected against the risk of ill-treatment. The weight to be given to assurances from the receiving State depends, in each case, on the circumstances prevailing at the material time” (par. 187).

 As anticipated, besides European Court of Human Rights, other important organs of the Council of Europe stated about diplomatic assurances and their value.

 So, for example, Mr Thomas Hammarberg – the Commissioner of Human Rights of the Council of Europe from 2006 to 2012 – stated that Diplomatic assurances are not credible and have also turned out to be ineffective in well documented cases. The governments have already violated binding international norms and it is plain wrong to subject anyone to the risk of torture on the basis of an even less solemn undertaking to make an exception in an individual case[1].

Moreover, the Parliamentary Assembly of the Council of Europe (PACE) noted that Relying on the principle of trust and assurances given by undemocratic states known not to respect human rights is simply cowardly and hypocritical[2].

The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), in its 15th General Report on the CPT's activities (22 September 2005), pointed out that

Fears are growing that the use of diplomatic assurances is in fact circumventing the prohibition of torture and ill-treatment. The seeking of diplomatic assurances from countries with a poor overall record in relation to torture and ill-treatment is giving rise to particular concern. It does not necessarily follow from such a record that someone whose deportation is envisaged personally runs a real risk of being ill-treated in the country concerned; the specific circumstances of each case have to be taken into account when making that assessment. However, if in fact there would appear to be a risk of ill-treatment, can diplomatic assurances received from the authorities of a country where torture and ill-treatment is widely practiced ever offer sufficient protection against that risk? It has been advanced with some cogency that even assuming those authorities do exercise effective control over the agencies that might take the person concerned into their custody (which may not always be the case), there can be no guarantee that assurances given will be respected in practice. If these countries fail to respect their obligations under international human rights treaties ratified by them, so the argument runs, why should one be confident that they will respect assurances given on a bilateral basis in a particular case? (par. 38 – 39)[3].

 The same CPT, in the “Agiza v. Sweden” decision (Communication No. 233/2003, UN doc. CAT/C/34/D/233/2003 (2005), 20 May 2005)[4], cleared that diplomatic assurances cannot provide sufficient protection where there is a manifest risk of torture, especially where there is no effective mechanism for the “refouling” state to enforce them. The State party must also supply the assurances to the Committee in order for it to perform its own independent assessment of their satisfactoriness or otherwise and detail with sufficient specificity the monitoring undertaken and the steps taken to ensure that the assurance was both in fact, and in the complainant’s perception, objective, impartial and sufficiently trustworthy.

 Even the General Assembly of the United Nations pointed out that diplomatic assurances, where used, do not release States from their obligations under international human rights, humanitarian and refugee law, in particular the principle of non-refoulement[5].

Conclusively: Judicial Authority of the requested State cannot accept – without proper and critic assessment – the diplomatic assurances given by the requesting State in extradition proceedings: former is always requested to check, in a concrete, specific and precise way, if the requested person could be submitted to a risk for his human rights in case of detention.

2. Diplomatic assurances (supplementary information) in EAW proceedings

 The principles stated by ECHR, by Council of Europe and even by the United Nations, should be considered – of course – valid and relevant even in the EAW procedure.

 As known, European Arrest Warrant (EAW) has been adopted with the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (n. 2002/584/JHA).

It represents the most important weapon ("sword function") of the EU judicial cooperation in criminal matters, and “the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the cornerstone of judicial cooperation”[6]. The principle of mutual recognition of criminal decision is founded on the idea of mutual trust between EU Member States: in order to enter (and stay) in the European Union, every State must share and apply some common essential values.

The protection of human rights plays a fundamental role: in fact, article 2 of the Treaty on European Union (TEU) states that “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail”.

In order to implement the protection of human rights, the Charter of Fundamental Rights of the European Union (CFR) establishes and defines the fundamental common values on which EU is based and, since the Treaty of Lisbon of 2009[1], it is directly applicable and legally binding without any action on the part of Member States (such as EU Treaties), as established in article 6 of the Treaty on European Union[2].

So, every EU action and policy must protect the fundamental human rights of individuals, including – of course – the European Arrest Warrant Framework Decision. In fact, article 1 par. 3 of the Framework Decision states that “This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union.

Respect of human rights by every EU Member State was always taken for granted, not only by Member States themselves, but also, for example, by the European Court of Human Rights, which established the well-known “Bosphorus presumption”[3].

 However, in recent years, this presumption has been seriously questioned non only by ECtHR, but by the Court of Justice of the European Union (CJEU) as well, starting from the Aranyosi – Căldărarujudgment (Cases C‑404/15 and C‑659/15 PPU judgment of 5 April 2016)[4].

 The judgment is about the interpretation of article 1 par. 3 of the Framework Decision, referring in particular to the case of a risk of inhuman or degrading treatment (as stated in article 3 of ECHR and in article 4 of CFR) for the requested person in case of surrender, due to the detention conditions in the issuing State.

The Court was asked “to ascertain whether article 1 par. 3 of the Framework Decision must be interpreted as meaning that, where there is solid evidence that detention conditions in the issuing Member State are incompatible with fundamental rights, in particular with Article 4 of the Charter, the executing judicial authority may or must refuse to execute a European arrest warrant issued in respect of a person for the purposes of conducting a criminal prosecution or executing a custodial sentence, or whether it may or must make the surrender of that person conditional on there being obtained from the issuing Member State information enabling it to be satisfied that those detention conditions are compatible with fundamental rights (par. 74 of the judgment).

Answering to that question, the Court stated that, when the Judicial Authority of the State of Execution is in possession of “evidence of a real risk of inhuman and degrading  treatment of individuals detained in the issuing Member State, having regard to the standard of protection of fundamental rights guaranteed by EU law”, first of all, must evaluate the real existence of such a risk, referring to “objective, reliable, specific and properly updated” data about the detention conditions in the issuing Member State (par. 88 – 89 of the judgement)[5].

 

"Tell me lies
Tell me, tell me lies
Oh no-no, you can't disguise
You can't disguise
No, you can't disguise
Tell me lies, tell me sweet little lies"

  Fleetwood Mac - Little Lies

 The Court refers to the so called "supplementary information" as ruled in article 15 EAW FD decision; if the executing judicial authority obtains supplementary information that permits it to discount the existence of a real risk that the requested person will be subject to inhuman and degrading treatment in the issuing Member State, it must in principle adopt its decision on the execution of the EAW (but see CJEU's decisions  Generalstaatsanwaltschaft Bremen C‑216/18 PPU  ECL:EU:C:2018:589 and GS ML C - 220/18 PPU, both of 25 July 2018):

 

59      (..) where the judicial authority of the executing Member State is in possession of information showing there to be a real risk of inhuman or degrading treatment of individuals detained in the issuing Member State, measured against the standard of protection of fundamental rights guaranteed by EU law and, in particular, by Article 4 of the Charter, that judicial authority is bound to assess the existence of that risk when it is called upon to decide on the surrender to the authorities of the issuing Member State of the individual concerned by a European arrest warrant. The consequence of the execution of such a warrant must not be that that individual suffers inhuman or degrading treatment (judgment of 5 April 2016, Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 88).

60      To that end, the executing judicial authority must, initially, rely on information that is objective, reliable, specific and properly updated concerning the detention conditions within the prisons of the issuing Member State and that demonstrates that there are deficiencies, which may be systemic or generalised, or which may affect certain groups of people, or which may affect certain places of detention. That information may be obtained from, inter alia, judgments of international courts, such as judgments of the European Court of Human Rights, judgments of courts of the issuing Member State, and also decisions, reports and other documents produced by bodies of the Council of Europe or under the aegis of the United Nations (judgment of 5 April 2016, Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 89).

61      Nonetheless, a finding that there is a real risk of inhuman or degrading treatment by virtue of general conditions of detention in the issuing Member State cannot lead, in itself, to the refusal to execute a European arrest warrant. The mere existence of evidence that there are deficiencies, which may be systemic or generalised, or which may affect certain groups of people or certain places of detention, with respect to detention conditions in the issuing Member State does not necessarily imply that, in a specific case, the individual concerned will be subjected to inhuman or degrading treatment in the event that he is surrendered to the authorities of that Member State (judgment of 5 April 2016, Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraphs 91 and 93).

62      Thus, in order to ensure observance of Article 4 of the Charter in the particular circumstances of a person who is the subject of a European arrest warrant, the executing judicial authority, when faced with evidence of the existence of such deficiencies that is objective, reliable, specific and properly updated, is then bound to determine, specifically and precisely, whether, in the particular circumstances of the case, there are substantial grounds for believing that, following the surrender of that person to the issuing Member State, he will run a real risk of being subject in that Member State to inhuman or degrading treatment, within the meaning of Article 4, because of the conditions for his detention envisaged in the issuing Member State (judgment of 5 April 2016, Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraphs 92 and 94).

63      To that end, that authority must, pursuant to Article 15(2) of the Framework Decision, request of the judicial authority of the issuing Member State that there be provided as a matter of urgency all necessary supplementary information on the conditions in which it is envisaged that the individual concerned will be detained in that Member State. That request may also relate to the existence, in the issuing Member State, of any national or international procedures and mechanisms for monitoring detention conditions, linked, for example, to visits to prisons, which make it possible to assess the current state of detention conditions in those prisons (judgment of 5 April 2016, Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraphs 95 and 96).

64      The issuing judicial authority is obliged to provide that information to the executing judicial authority (judgment of 5 April 2016, Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 97).

65      If, in the light of the information provided pursuant to Article 15(2) of the Framework Decision, and of any other information that may be available to the executing judicial authority, that authority finds that there exists, for the individual in respect of whom the European arrest warrant has been issued, a real risk of inhuman or degrading treatment, within the meaning of Article 4 of the Charter, the execution of that warrant must be postponed but it cannot be abandoned (judgment of 5 April 2016, Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 98).

66      By contrast, in the event that the information received by the executing judicial authority from the issuing judicial authority leads it to rule out the existence of a real risk that the individual concerned will be subject to inhuman and degrading treatment in the issuing Member State, the executing judicial authority must adopt, within the time limits prescribed by the Framework Decision, its decision on the execution of the European arrest warrant, without prejudice to the opportunity of the individual concerned, after surrender, to have recourse, within the legal system of the issuing Member State, to legal remedies that may enable him to challenge, if need be, the lawfulness of the conditions of his detention in a prison of that Member State (judgment of 5 April 2016, Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraph 103).

 However, a general risk of being subject to inhuman or degrading treatments in the issuing State, verified by the Authority of the State of Execution, won’t be enough in order to refuse the surrender. In fact, as stated by the CJEU, when the Judicial Authority verify that detention conditions of the issuing State are generally incompatible with the prohibition of torture and inhuman or degrading treatment stated by article 4 of CFR (and by article 3 of ECHR), the same Authority must also verify if – in the specific case – the requested person could be subjected to torture or to inhuman or degrading treatment in case of surrender and detention in the State of Execution. To do that, the Judicial Authority of the State of execution must urgently ask to the Authority of the issuing State further information about the specific conditions in which the requested person will be detained in case of surrender. The State of execution may also fix a time limit for the issuing State in order to provide that further information.

 If, in the light of the information provided by the issuing State (and from “any other information that may be available to the executing judicial authority”), the Authority of the State of execution finds that the requested person would reasonably be subject, in case of surrender, to an inhuman and degrading treatment due to detention conditions of the issuing State, the surrender can’t be refused; instead, it must be postponed until the State of execution won’t obtain supplementary information from which it’s possible to exclude the existence of such a risk.

 

[1] Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed by the EU member states on 13 December 2007, and entered into force on 1 December 2009.

[2] Full text of article 6 of Treaty on European Union: “1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties. The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties. The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.

  1. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union's competences as defined in the Treaties.
  2. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law.”

 

[3] Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Şirketi V. Ireland judgment, application no. 45036/98, judgment of 30 June 2005, Grand Chamber (link to the judgment: https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-69564%22]}). Regarding to the ECHR,  the protection of human rights that EU law provide should be equivalent to the protection given by the European Convention of Human Rights, and so it can be presumed that every EU Member State guarantee protection of fundamental rights mentioned in the Convention: “the protection of fundamental rights by Community law can be considered to be, and to have been at the relevant time, “equivalent” to that of the Convention system” (par. 165 of the judgment).

[4] Link to the judgment: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62015CJ0404&from=IT.

[5] Those data can be obtained, as stated by the Court, “From, inter alia, judgments of international courts, such as judgments of the ECtHR, judgments of courts of the issuing Member State, and also decisions, reports and other documents produced by bodies of the Council of Europe or under the aegis of the UN” (par. 89 of the judgment).

As known, article 15

Surrender decision

1. The executing judicial authority shall decide, within the time-limits and under the conditions defined in this Framework Decision, whether the person is to be surrendered.

2. If the executing judicial authority finds the information communicated by the issuing Member State to be insufficient to allow it to decide on surrender, it shall request that the necessary supplementary information, in particular with respect to Articles 3 to 5 and Article 8, be furnished as a matter of urgency and may fix a time limit for the receipt thereof, taking into account the need to observe the time limits set in Article 17.

3. The issuing judicial authority may at any time forward any additional useful information to the executing judicial authority.

 What stated in article 1 par. 3 of the Framework Decision could sound strange in European Union, an international organisation based on the respect of fundamental rights as an essential value. In fact, respect of human rights by every EU Member State was always taken for granted, not only by Member States themselves, but also, for example, by the European Court of Human Rights, which established the well-known “Bosphorus presumption”[7].

 Regarding to the ECHR,  the protection of human rights that EU lave provide should be equivalent to the protection given by the European Convention of Human Rights, and so it can be presumed that every EU Member State guarantee protection of fundamental rights mentioned in the Convention: “the protection of fundamental rights by Community law can be considered to be, and to have been at the relevant time, “equivalent” to that of the Convention system” (par. 165 of “Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Şirketi V. Ireland” judgment).

 And:

 “155. In the Court’s view, State action taken in compliance with such legal obligations is justified as long as the relevant organisation is considered to protect fundamental rights, as regards both the substantive guarantees offered and the mechanisms controlling their observance, in a manner which can be considered at least equivalent to that for which the Convention provides […]. By “equivalent” the Court means “comparable”; any requirement that the organisation’s protection be “identical” could run counter to the interest of international cooperation pursued […]. However, any such finding of equivalence could not be final and would be susceptible to review in the light of any relevant change in fundamental rights protection.If such equivalent protection is considered to be provided by the organisation, the presumption will be that a State has not departed from the requirements of the Convention when it does no more than implement legal obligations flowing from its membership of the organisation.

However, any such presumption can be rebutted if, in the circumstances of a particular case, it is considered that the protection of Convention rights was manifestly deficient.”

 However, the “Bosphorus presumption” was later questioned and – mentioning that there are some “little brothers” of Bosphorus reasonment – largely rebutted.

 So, for example, the EU legislator itself seems to recognize that the mere adhesion to the ECHR does not assure respect of fundamental right: it is clearly stated in the consideranda 6 and 7 of the first procedural directive 64/2010 about interpretation and translation

 (6) Although all the Member States are party to the ECHR, experience has shown that that alone does not always provide a sufficient degree of trust in the criminal justice systems of other Member States.

 (7) Strengthening mutual trust requires a more consistent implementation of the rights and guarantees set out in Article 6 of the ECHR. It also requires, by means of this Directive and other measures, further development within the Union of the minimum standards set out in the ECHR and the Charter.

Keeping it short, another example:  the Directive 2014/41/EU regarding the European Investigation Order in criminal matters  clearly points out that“The creation of an area of freedom, security and justice within the Union is based on mutual confidence and a presumption of compliance by other Member States with Union law and, in particular, with fundamental rights. However, that presumption is rebuttable. Consequently, if there are substantial grounds for believing that the execution of an investigative measure indicated in the EIO would result in a breach of a fundamental right of the person concerned and that the executing State would disregard its obligations concerning the protection of fundamental rights recognised in the Charter, the execution of the EIO should be refused (whereas n. 19 of the Directive 2014/41/EU).

 So, as anticipated, the EU legislator itself first doubted that every EU Member State effectively respect and protect fundamental rights during preliminary investigation; case law confirms the doubts.

 Indeed, starting from the “Aranyosi – Căldăraru” judgment (Cases C 404/15 and C 659/15 PPU, judgment of 5 April 2016), the “Bosphorus presumption” – and so the presumption of respect and protection of fundamental by every Member State of the European Union – was seriously questioned by the CJEU, and so today – as we’ll see – such a presumption as such doesn’t exist anymore[8].

 In fact, in that judgement, the CJEU clarified that, when the Judicial Authority of the State of Execution is in possession of “evidence of a real risk of inhuman and degrading treatment of individuals detained in the issuing Member State, having regard to the standard of protection of fundamental rights guaranteed by EU law”, must do a double evaluation:

 - in general (first step), must evaluate the real existence of such a risk, referring to objective, reliable, specific and properly updateddata about the detention conditions in the issuing Member State (par. 88 – 89 of the judgement). Those data can be obtained, as stated by the Court, “From, inter alia, judgments of international courts, such as judgments of the ECtHR, judgments of courts of the issuing Member State, and also decisions, reports and other documents produced by bodies of the Council of Europe or under the aegis of the UN (par. 89 of the judgment);

 - in particular (second step), must also verify if – in the specific case – the requested person could be subjected to torture or to inhuman or degrading treatment in case of surrender and detention in the State of Execution. To do that, the Judicial Authority of the State of execution must urgently ask to the Authority of the issuing State further information about the specific conditions in which the requested person will be detained in case of surrender.

 So, regarding to CJEU, in order to decide about the surrender of the requested person, the Judicial Authority must have some SPECIFIC information, both in order to do the “first step evaluation” about a general risk of inhuman and degrading treatment in the issuing State (the Authority must refer to “specific and properly updated” data), and – most important – in order to do the “second step evaluation” about such a risk for that specific person in the specific case.

 Because of that, CJEU cleared that the State of execution can also ask further questions to the issuing State, just in order to have all the specific information needed to decide if the requested person could effectively risk an inhuman or degrading treatment in case of surrender (in violation of article 3 of ECHR and of article 4 of European Charter of Fundamental Rights).

 The CJEU reiterated the Aranyosi – Căldăraruprinciples in a subsequent judgment, the Dorobantu judgment (Case C‑128/18, judgment of 15 October 2019). In that judgment, the CJEU was asked about “the extent and scope of the review by the executing judicial authority of detention conditions in the issuing Member State”, and cleared that:

  •  “that authority, which is responsible for deciding on the surrender of a person who is the subject of a European arrest warrant, must determine, specifically and precisely, whether, in the circumstances of a particular case, there is a real risk that that person will be subjected in the issuing Member State to inhuman or degrading treatment” (par. 63);
  •  because of the specific and precise nature of that evaluation, the Judicial Authority of the State of Execution is required to assess the conditions of detention in the prisons in which, according to the information available to them, it is actually intended that the person concerned will be detained, including on a temporary or transitional basis (par. 66).

 

In conclusion, CJEU stated that “when the executing judicial authority has objective, reliable, specific and properly updated information showing there to be systemic or generalised deficiencies in the conditions of detention in the prisons of the issuing Member State, it must, for the purpose of assessing whether there are substantial grounds for believing that, following the surrender to the issuing Member State of the person subject to a European arrest warrant, that person will run a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter, take account of all the relevant physical aspects of the conditions of detention in the prison in which it is actually intended that that person will be detained, such as the personal space available to each detainee in a cell in that prison, sanitary conditions and the extent of the detainee’s freedom of movement within the prison. That assessment is not limited to the review of obvious inadequacies” (par. 86).

 So, it’s clear that – when asked of further information regarding a possible risk of inhuman or degrading treatment of the requested person – the issuing State cannot give general and abstract information, in order to allow the State of execution to evaluate in a specific and precise way if the requested person, in his/her specific case, could be subject to such a risk because of the prison conditions of the issuing State. That’s because, as we’ve seen, every Member State, during an EAW proceeding, has the duty to verify if the issuing State really guarantees the respect of fundamental rights, in general, and referring to the particular case of the person who is subject of any specific EAW.

 

3. Can a promise to avoid inhuman or degrading treatments in case of surrender be believed?

Italian Ministery of Justice usually gives diplomatic assurances that sound like  “at present all the Italian penitentiary institutions do comply with the provisions of Article 3 of the European Convention on Human Rights based of the interpretation by the ECtHR, as reiterated on 5 June 2014 by the Committee of Ministers of the Council of Europe […] Please be assured that if  (NAME)  is surrendered, he will not risk being exposed to any inhuman or degrading treatment pursuant to Article 4 of the Charter of Fundamental Rights of the European Union, and that the prison where he is going to serve his pre-trial custody will be specified as soon as a decision is made on the procedure for his surrender to Italy”.

 Firstly the undersigned cannot avoid to notice the fact that who has systematically [9] and for decades violated basic rights of hundreds (thousands) of detainees now claims .. to be believed when it assures the compliance to art 3 ECHR [10].

 However, Italian diplomatic assurances are (sadly) not enough in order to guarantee thatsome won’t be effectively subject to an inhuman and degrading treatment in case of surrender because of Italian prison conditions, regarding to the principles stated by the Court of Justice of the European Union (CJEU).

 In particular, it’s clear that the indication of the specific prison in which the requested person would be detained is massively important: without this information, the State of execution wouldn’t be able to verify if the requested person would concretely and effectively be subjected to a risk of inhuman or degrading treatment in case of surrender, and so the principles stated by CJEU would be totally ineffective.

Moreover: to state that “all the Italian penitentiary institutions do comply with the provisions of Article 3 of the European Convention on Human Rights”, it’s false and misleading information, denied by some objective data.

It’s certainly true that, after the “Torreggiani” case, Italy undertook several reforms to decongest its prisons, reforms that have been commended by the Committee of Ministers of the Council of Europe in its decision of 5 June 2014, mentioned by Italian Minister of Justice in its diplomatic assurances: however, it’s also true and undeniable that from 2016 the number of detained people in Italian prisons started to rise again.

 Specifically, the number of inmates in Italian prisons increased as follows:

2014

53.623

2015

52.164

2016

54.653

2017

57.608

2018

59.655

2019

60.611

 Data taken from: “Numeri della popolazione detenuta. Vent’anni di affollamento penitenziario in Italia” - XV rapporto sulle condizioni di detenzione (2019), Associazione Antigone.

 The overcrowding is an endemic problem of Italian prisons: as of February 29th, there were 61,230 detainees for 50,931 available places (120.2% occupancy rate) [11]: however, it could be estimated a rate of 130%, keeping into account unavailable places in some prisons because of closed sections or renovation works. This means that within the last three years, there has been an increase in the prison population of almost 10,000 people, which corresponds to a 17.3% augmentation, while the official capacity of the penitentiary institutes has merely been increased of 1,339 places (+2.7%) [12].

 Moreover, the last report [13] made on the 21 January 2020 by the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment of the Council of Europe (CPT) regarding Italian prisons cleared that overcrowding is still an endemic and serious problem of Italian prisons.

 Specifically, CTP said that “At the time of the 2019 visit approximately 13,800 inmates were accommodated in cells which provided between 3 and 4 m2 of living space per inmate (see paragraph 22). It is to be recalled that in the CPT’s view the minimum living space offered to inmates should amount to at least 4 m2 in multiple-occupancy cells, excluding the sanitary annex. The CPT recommends that the Italian authorities take action to ensure that all prisoners are provided with at least 4 m2 in multiple-occupancy cells; the Italian authorities should nonetheless strive to comply with the national minimum standard set forth in its legislation. Further, rigorous action is required to bring the prison population down below the number of places available within the prison estate and to put an end to overcrowding. In this respect, emphasis should be placed on the full range of non-custodial measures capable of providing judicial supervision during the period preceding the imposition of a sentence, as well as on measures to accelerate a prisoner's release, including through supervisory means tailored, inter alia, to the prisoner's personality and the nature of the sentence” (page 9).

 In fact, regarding to the principles stated by European Court of Human Rights, it’s fundamental to look at the concrete and precise conditions in which the person would be detained in order to understand if there is a risk of inhuman or degrading treatment.

 In the “Muršić v. Croatia” judgment (application no. 7334/13 judgment of 20 October 2016), the Court stated that[14]

  • when the personal space available to a detainee falls below 3 m2 of floor surface in multi-occupancy accommodation in prisons, the lack of personal space is considered so severe that a strong presumption of a violation of Article 3 arises. The burden of proof is on the respondent Government which could, however, rebut that presumption by demonstrating that there were factors capable of adequately compensating for the scarce allocation of personal space (such as, for example, a short detention period, sufficient freedom of movement and adequate out-of-cell activities). Also, in order to calculate the effective available personal space for an inmate, hygienic services and immovable furniture (such as the bed, as also cleared by a recent judgment of Italian Court of Cassazione – 30 November 2020 n. 33822) cannot be included. So, clearly, in order to calculate if the available personal space is below 3 m2 it’s necessary to know how many furniture, movable and immovable, there are in every single cell;

 

  • in cases where a prison cell – measuring in the range of 3 to 4 m2 of personal space per inmate – is at issue, the space factor remains a weighty factor in the Court’s assessment of the adequacy of conditions of detention. In such instances a violation of Article 3 will be found if the space factor is coupled with other aspects of inappropriate physical conditions of detention related to, in particular, access to outdoor exercise, natural light or air, availability of ventilation, adequacy of room temperature, the possibility of using the toilet in private, and compliance with basic sanitary and hygienic requirements. So, one more time, in order to verify if there is a risk of violation of article 3 of the Convention, it’s fundamental to know the specific and concrete condition of the prison cell, because, if the personal space is between 3 and 4 m2that happens very often in Italian prisons, as we said just before – anything that denotes an inappropriate condition of detention (lack of air or light, cold, no access to outdoor activities…) would determinate a violation of article 3 of the Convention;

 

  • lastly, even when a detainee disposes of more than 4 m2 of personal space, he/she could be subject to an inhuman or degrading treatment, in presence of other elements that, together, can prove that the conditions of detention of that person violate article 3. Those elements can be: the specific individual needs of, for example, sick, old or young prisoners, women and/or people with disabilities; the physical condition of the buildings; the amount of time spent in the accommodation area; the frequency and extent of opportunities to take physical exercise, work and be involved in other activities outside the accommodation area, etc.

 

As we can see, according to the European Court of Human Rights, the violation of article 3 of the Convention must always be verified referring to the CONCRETE and SPECIFIC conditions of every inmate: so, it’s fundamental to know in which prison the EAW requested person would be detained, and more, in which prison cell, because – even in the same prison – one cell could be different than another.

 As anticipated, those principles were implemented by CJEU referring to European Arrest Warrant in the “Aranyosi – Căldăraru” and “Dorobantu” judgments: in fact, the Court stated that the State of execution must verify specifically and precisely, referring to the conditions of detention in the prisons in which, according to the information available to them, it is actually intended that the person concerned will be detained.

Moreover, the diplomatic assurances given from Italian Minister of Justice are incomplete also because they don’t even mention the COVID-19 diffusion in Italian prisons, in spite of the undeniable gravity and seriousness of that problem.

 As I already said in my previous opinion, it’s clear that lacking of an adequate personal space causes the impossibility of remaining at least at one meter of distance from any other people, with consequent spreading of the COVID-19 infection. Furthermore, there weren’t enough PPE (especially face masks) for all the inmates (and also for the Penitentiary Police).

 At the start of the pandemic (March 2020), Italy adopted some legislative measures[15], like prohibiting the access in Prison of inmate’s relatives, suspending the physical participation of inmates in the hearings, that’s been replaced by remote participation, "recommending" to limit the permits and exits of inmates, and isolating all the "new arrivals" if symptomatic.

 

The only legislative measure, between those adopted in March 2020, that was supposed to reduce the number of inmates in Prisons, was a little extension of the possibility to serve the sentence in house detention regime: however, that extension concerned a very small number of inmates, and so the emergency didn’t stop.

 

In fact, as I’ve already said in my previous legal opinion, it’s been calculated that, despite the releases due to the legislative measures adopted in March 2020, Italian Prisons were still overcrowded: at the date of 24 April 2020, Italian inmates were 53.658, despite Prisons could host only 50.931 people[16].

 Regarding to official data of Italian Department of Prison Administration (Minister of Justice), by now there are 958 inmates, 810 police officers and 72 other operators that have been tested COVID-positive (total: 1.840 people).

 The escalation of the pandemic in prisons is very quick: in 5 weeks there’s been an increasement of approximately 535% of the COVID-positive people in prisons[17]. One last remark: in a very recent extradition from Switzerland (regulated by the European Convention of extradition 1957) of November 27th, the defendant S.I. has been immediately put in solitary confinement because of the serious risk of infection in the Italian prison facility (see annex 4 and 4bis). The supplementary information form the Italian government .. does not mention COVID19 risk for detainees at all.

 In order to understand the seriousness and weight of the COVID-emergency in Italian Prisons, it’s useful to know that, since the end of November, many people between politicians, journalists, writers, criminal lawyers and – of course – the inmates themselves all over Italy, have started a hunger strike[18], in order to protest against the overcrowding in Italian prisons and the related spreading of COVID-19, due to the supra mentioned quick escalation of the pandemic, claiming new legislative measures in order to reduce the number of inmates and so prevent the endemic overcrowding of Italian prisons. However, it’s now almost certain that Italian Government won’t adopt any measure in order to resolve those problems[19].

Regarding to Mr Syski’s specific case, even if it’s certainly true that the Italian Department of Prison Administration can choose in which prison every inmate (convicted or in pre-trial detention) will be detained, it’s highly probable that he – in case of surrender – will be detained in pre-trial detention in Bergamo prison, the place in which he must wait for his trial to start, as usually happens in Italy.

 

Well, as I already said in my previous opinion, Bergamo prison is seriously overcrowded: the prison could host 315 inmates, but now there are 497 inmates, and so Bergamo Prison is now 158% overcrowded[20]. For this reason, a minimum space of 3 m2 of floor surface it’s not guaranteed for every inmate.

 Since that, it’s easy to understand what I previously said that Italian diplomatic assurances are false: in fact, it’s not true that “all the Italian penitentiary institutions do comply with the provisions of Article 3 of the European Convention on Human Rights”: for example, Bergamo prison don’t comply with article 3 of the Convention.

 Moreover, Bergamo prison isn’t certainly the only Italian prison in which a minimum space of 3 m2 of floor surface it’s not guaranteed for every inmate.

 In fact, regarding to Antigone Association data (please notice that this isn’t a complete list):

 Napoli prison “Poggioreale” could host 1.571 inmates but there are 2.026 inmates, and so the prison is 128,9% overcrowded and a minimum space of 3 m2 of floor surface it’s not guaranteed for every inmate[21];

  1. Roma prison “Regina Coeli” could host 606 inmates but there are 964 inmates, and so the prison is 159% overcrowded and a minimum space of 3 m2 of floor surface it’s not guaranteed for every inmate[22];
  2. Milano prison “Opera” could host 918 inmates but there are 1.153 inmates, and so the prison is 125,59% overcrowded and a minimum space of 3 m2 of floor surface it’s not guaranteed for every inmate[23];
  3. Torino prison “Le Vallette” could host 1.058 inmates but there are 1.393 inmates, and so the prison is 131,66% overcrowded and a minimum space of 3 m2 of floor surface it’s not guaranteed for every inmate[24];
  4. Milano prison “San Vittore” could host 754 inmates but there are 973 inmates, and so the prison is 129,04% overcrowded and a minimum space of 3 m2 of floor surface it’s not guaranteed for every inmate[25];
  5. Palermo prison “Pagliarelli” could host 1.182 inmates but there are 1.269 inmates, and so the prison is 107,36% overcrowded and a minimum space of 3 m2 of floor surface it’s not guaranteed for every inmate[26];
  6. Larino prison could host 117 inmates but there are 186 inmates, and so the prison is 158,97% overcrowded and a minimum space of 3 m2 of floor surface it’s not guaranteed for every inmate[27];
  7. Como prison could host 240 inmates but there are 340 inmates, and so the prison is 141,66% overcrowded and a minimum space of 3 m2 of floor surface it’s not guaranteed for every inmate[28];
  8. Campobasso prison could host 106 inmates but there are 148 inmates, and so the prison is 139,62% overcrowded and a minimum space of 3 m2 of floor surface it’s not guaranteed for every inmate[29];
  9. Siracusa prison could host 532 inmates but there are 534 inmates, and so the prison is 100,37% overcrowded and a minimum space of 3 m2 of floor surface it’s not guaranteed for every inmate[30].

 

 

In conclusion, by giving false, obsolete and incomplete information, Italy not only violated the principles stated by ECHR and CJUE, but also (and most important) violated the principle of mutual trust between EU Member States, which is the base of every EU policy, including – of course – the EAW procedure; no answer was given at all to the precise question “wie sich die Haftbedingungen für ihn dort gestalten werden”.

 

[1] Thomas Hammarberg – “Torture can never, ever be accepted” (27 June 2006), available at link: https://www.coe.int/fr/web/commissioner/viewpoints/-/asset_publisher/xZ32OPEoxOkq/content/torture-can-never-ever-be-accepted?_101_INSTANCE_xZ32OPEoxOkq_languageId=en_GB.

[2] “Alleged secret detentions and unlawful inter-state transfers of detainees involving Council of Europe member states”, PACE, report n. 10957 of 12 June 2006, Rapporteur: Mr Dick Marty, available at link: https://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=11527&lang=en.

[3] Report available at link: https://rm.coe.int/1680696a81.

[4] Available at link: http://hrlibrary.umn.edu/cat/decisions/233-2003.html.

[5] UN doc. A/C.3/60/L.25/Rev. 1 (par. 8), available at link: https://digitallibrary.un.org/record/560892.

[6] Recital n. 6 of the Framework Decision. Full text: “The European arrest warrant provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the cornerstone of judicial cooperation.

[7] Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Şirketi V. Ireland judgment, application no. 45036/98, judgment of 30 June 2005 (Grand Chamber). Link to the judgment: https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-69564%22]}.

[8] Not only re detention conditions 7art 3 ECHR and 4 Charta) but even in fair trail rights and many more.

[9] See Torreggiani decision, 2013, pilot judgement!

[10] I wonder if the Italian Ministry of Justice knows, for example, Italian Supreme Court case law re inhuman treatment. On November 30th, for example, same High Court reversed a lower courts decision explains that the space in the cell has to be calculated excluding the space occupied by unmovable furniture .. a long way is still to go, after 7 years of torreggiani https://canestrinilex.com/risorse/cella-piccola-trattamento-inumano-se-cass/.

[11] The legislative measures adopted by Italian Government in order to fight COVID-19 determined a little decrease of the inmates in Italian prisons, but still not enough to face overcrowding issues, as we’ll see just infra.

[12] All data about the overcrowding in Italian Prison are taken from the report “Submission to the UN Committee Against Torture Concerning Italy” (9 November- 4 December 2020) made by the Italian NGO “Antigone”. “Antigone” plays a fundamental role, in Italy, in the constant observation of preservation of fundamental rights in prisons. In fact, in 1998, the NGO received the permanent authorization from the Ministry of Justice to visit all the Italian detention centres. Since 2007, “Antigone” issues an annual report on the prison conditions in Italy. The report “Submission to the UN Committee Against Torture Concerning Italy” is available at this link: https://tbinternet.ohchr.org/Treaties/CAT/Shared%20Documents/ITA/INT_CAT_ICS_ITA_42520_E.pdf, and it’s also attached to my previous legal opinion.

[13] Report to the Italian Government on the visit to Italy carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 12 to 22 March 2019 - Strasbourg, 21 January 2020, available at this link: https://rm.coe.int/16809986b4, and also attached.

 

[14] Par. 136 – 140 of “Muršić v. Croatia” judgment.

[15] Italian legislative measures regarding Prisons adopted at the beginning of COVID-19 pandemic were as follows (in a chronological order):

  1. “Decreto del Presidente del Consiglio dei Ministri 8 Marzo 2020. Ulteriori disposizioni attuative del decreto-legge 23 febbraio 2020, n. 6, recante misure urgenti in materia di contenimento e gestione dell'emergenza epidemiologica da COVID-19”;
  2. “Decreto legge 8 marzo 2020, n. 11. Misure straordinarie ed urgenti per contrastare l'emergenza epidemiologica da COVID-19 e contenere gli effetti negativi sullo svolgimento dell'attività giudiziaria”;
  3. “Decreto legge n. 7 marzo 2020, n. 18. Misure di potenziamento del Servizio sanitario nazionale e di sostegno economico per famiglie, lavoratori e imprese connesse all'emergenza epidemiologica da COVID-19”;

[16] Data from the Report “Il Carcere al tempo del Coronavirus” made by “Antigone”, available at link: https://www.antigone.it/upload/ANTIGONE_2020_XVIRAPPORTO%202.pdf.

[17] All the data regarding to COVID-positive people in Italian Prisons are taken from the official website of Italian Department of Prison Administration (Minister of Justice): https://www.giustizia.it/giustizia/it/mg_2_27.page.

[18] See for example the following press articles:

  1. Emergenza COVID: Rita Bernardini è in sciopero della fame per amnistia, indulto, liberazione anticipata speciale – Nessuno tocchi Caino, 12 November 2020https://www.nessunotocchicaino.it/notizia/emergenza-covid-rita-bernardini-%C3%A8-in-sciopero-della-fame-per-amnistia-indulto-liberazione-anticipata-speciale-60318107;
  2. Covid a Larino, sciopero della fame di 40 detenuti – Tele Regione Molise, 14 November 2020 – https://www.teleregionemolise.it/2020/11/14/covid-a-larino-sciopero-della-fame-di-40-detenuti/;
  3. Covid nelle carceri, situazione difficile e sciopero della fame a Busto Arsizio – Varese News, 18 November 2020 – https://www.varesenews.it/2020/11/covid-nelle-carceri-situazione-difficile-e-sciopero-della-fame-a-busto-arsizio/1276875/;
  4. Viterbo, detenuti in sciopero della fame per solidarietà all’On. Bernardini – On Tuscia, 20 November 2020 – https://www.ontuscia.it/cronaca/coronavirus-viterbo-detenuti-in-sciopero-della-fame-per-solidarieta-allon-bernardini-329576;
  5. Covid in carcere, più di 258 in sciopero della fame anche a Marassi per indulto e amnistia – it, 23 November 2020 – https://www.primocanale.it/notizie/covid-in-carcere-pi-di-258-in-sciopero-della-fame-anche-a-marassi-per-indulto-e-amnistia-225090.html;
  6. Celle focolaio e boom di positivi, a Poggioreale sciopero della fame dei detenuti – L’Agone, 25 November 2020 – https://www.lagone.it/2020/11/25/celle-focolaio-e-boom-di-positivi-a-poggioreale-sciopero-della-fame-dei-detenuti/;
  7. Covid e carceri, Sandro Veronesi: sciopero della fame per i detenuti – Corriere della Sera, 27 November 2020 – https://www.corriere.it/cultura/20_novembre_27/covid-carceri-sandro-veronesi-sciopero-fame-detenuti-dea2b032-30d3-11eb-b439-4fc5a36ba8fd.shtml;
  8. "Allarme contagi covid in carcere": avvocati in sciopero della fame – Milano Today, 2 December 2020 – https://www.milanotoday.it/attualita/coronavirus/sciopero-fame-avvocati-contagi-carcere.html;
  9. Sciopero della fame per l'esplosione del Covid nelle carceri: aderisce anche Milano Progressista – Milano Today, 3 December 2020 https://www.milanotoday.it/attualita/coronavirus/covid-sciopero-fame-carceri-milano-progressista.html;
  10. Carceri sovraffollate, penalisti in sciopero della fame – Modena Today, 7 December 2020 – https://www.modenatoday.it/attualita/sciopero-fame-penalisti-sovraffollamento-carceri-dicembre-2020.html.

[19] Carceri, tutti i numeri del contagio: il Covid corre più veloce del Parlamento – la Repubblica, 30 November 2020 – in which it’s cleared that there’s no hope for an implementation of those measures that can reduce the number of inmates in Italian prisons. Link: https://www.repubblica.it/politica/2020/11/30/news/carceri-276434281/.

[20] All data about Bergamo prison are taken from “Antigone” report: https://www.antigone.it/osservatorio_detenzione/lombardia/190-casa-circondariale-di-bergamo.

[21] https://www.antigone.it/osservatorio_detenzione/campania/79-casa-circondariale-di-napoli-poggioreale

[22] https://www.antigone.it/osservatorio_detenzione/lazio/110-casa-circondariale-di-regina-coeli

[23] https://www.antigone.it/osservatorio_detenzione/lombardia/192-casa-di-reclusione-di-milano-opera

[24] https://www.antigone.it/osservatorio_detenzione/piemonte/184-casa-circondariale-di-torino

[25] https://www.antigone.it/osservatorio_detenzione/lombardia/98-casa-circondariale-di-milano-san-vittore

[26] https://www.antigone.it/osservatorio_detenzione/sicilia/16-casa-circondariale-palermo-pagliarelli

[27] https://www.antigone.it/osservatorio_detenzione/molise/123-casa-circondariale-di-larino

[28] https://www.antigone.it/osservatorio_detenzione/lombardia/188-casa-circondariale-di-como

[29] https://www.antigone.it/osservatorio_detenzione/molise/122-casa-circondariale-e-di-reclusione-di-campobasso

[30] https://www.antigone.it/osservatorio_detenzione/sicilia/241-casa-circondariale-di-siracusa