CPT reports constitute objective, reliable and precise evidence for systemic or generalized deficiencies in detention conditions, thus banning the extradition: but diplomatic assurances constitute official information, to which the authorities of the executing state cannot deny faith except on the basis of specific and documented findings to the contrary, current, specific, and, above all, "individualized."
In order to assess the risk of inhuman or degrading treatment during an extradition prceeding, the judicial authority of the requested state, even in the absence of defense requests, is obliged to verify, on the basis of objective and up-to-date elements, the reliability of the guarantee coming from the requesting state about the compliance with conventional standards regarding the treatment of prisoners during the entire re-educational path followed in penitentiary institutions.
In the presence of CPT reports and with reference to the deficiencies recorded, it was considered configurable the onus of the proceeding judge to request additional information aimed at knowing the prison treatment to which the extradited person will actually be subjected, pursuant to Article 13 of the European Convention on Extradition, even in the absence of defensive allegations in this regard. The Court of Appeals in such cases is required to acquire updated information from the competent Authorities of the requesting State, so as to verify the current conditions of treatment in the relevant penal institutions, information that must be individualized on the person of the extradited person and on the existence of a detention plan indicating the precise modalities of execution since the judicial authority of the requested State must be placed in a position to verify on the basis of precise and detailed information regarding the connotations of the re-educational course followed in the penitentiary institutions where the extradited person will be received, the reliability of the guarantee coming from the requesting State regarding the observance of the conventional standards provided for the purpose of respecting the principles established by Art. 3 ECHR, as interpreted in the jurisprudence of the EDU Court.
In the case of Moldova, even in the face of the described critical aspects of the most recent report of the Committee for the Prevention of Torture of the Council of Europe, the content of the most recent information acquired by the Court of Appeals, set out with logical arguments and with completeness, satisfies the requirement of compliance with conventional standards.
Court of Cassation
Sec. F Criminal No. 32430 Year 2022
President: BIANCHI MICHELE
Rapporteur: GIORDANO EMILIA ANNA
Hearing Date: 01/09/2022 - filed 02/09/2022
JUDGMENT
On the appeal brought by:
PP, born in Moldova on */1993
against the judgment dated 27/06/2022 of the Court of Appeal of Milan
Having regard to the acts, the contested sentence and the appeal;
Hearing the report delivered by Councilor Emilia Anna Giordano;
having heard the requests of the Public Prosecutor, in the person of Deputy Prosecutor
General Elisabetta Ceniccola, who concluded by requesting that the appeal be declared inadmissible.
HELD IN FACT
1. In a judgment of June 27, 2022, the Court of Appeals of Milan declared that the conditions for granting the request for extradition of PP, forwarded by the Ministry of Justice of the Republic of Moldova in execution of the international arrest warrant of December 30, 2020, of the Court of Etinet, for the crime of murder committed in **, between ** and ** 2020, against RR.
The Milan Court of Appeals ruled following this Court's January 26, 2022 remand judgment in which the ordered extradition had been annulled in order to verify that the actual conditions of the extradite's detention in Moldova did not expose him to the risk of inhuman and degrading treatment related not only to the overcrowding aspect of the cells at the place of detention but, more generally, to the actual conditions of detention as ascertained by the Council of Europe's Committee for the Prevention of Torture in its report of July 22, 2020, published on September 15, 2020, which had again audited the overall state of detention conditions in the Moldovan state, including those related to prison institution no. 13 in Chisinau.
The Report, in fact, acknowledged concrete progress in a number of areas of action already subjected to the Committee's previous inspections, but expressed concern that several longstanding recommendations, particularly those focusing on violence and acts of intimidation among inmates, the regime applied to both pre-trial and sentenced persons in custody, and the shortage of staff (health and supervisory) operating in the prisons, had not been taken into account.
As for Institution No. 13 in Chisinau, the Committee had noted its inadequacy in terms of repair, hygiene, ventilation, access to natural light, and overcrowding in some cells, where an uneven distribution of inmates had been verified.
The Court of Cassation therefore ordered the referring judges to examine the Committee's findings and also on the basis of any, additional, supplementary information on the specific and concrete prison treatment reserved for P, to re-examine the issues deduced by the appellant.
2. Against the judgment of June 27, 2022 appealed for cassation the defense counsel of P, alleging the erroneous application of Article 705, paragraph 2, lett. c), Code of Criminal Procedure. in connection with the risk of the extradited person being subjected to inhuman or degrading treatment due to the prison conditions in the requesting state and the danger of involvement in the war events that could affect Moldova exposed "to the expansionist threat of the Russian state as a neighbor of Ukraine, a country that has been at war with Russia for almost five months."
This is a real danger, by no means averted, as argued by the Court of Appeals, by Moldova's state of neutrality and its imminent entry into the European Union even taking into account the circumstance that a Moldovan oil tanker, on a date after the Court of Appeals' ruling, was "bombed" by the Russian military and the heightening of tensions over the continuing flow of Ukrainian migrants to Moldova.
Above all, the arguments developed in the appealed judgment are partial and contradictory, even in light of the subsequent information requested, on the conditions in Chisinau Prison, known worldwide for its precarious conditions, and Leova Prison to which the extradite should be transferred after a period of observation in the Capital's Penitentiary No. 13.
The court of merit failed to note that the extradite's stay in the Chisinau prison is not limited to the duration of fifteen days since the Moldovan state specified that this period is extendable on the basis of unspecified circumstances.
The Leova Prison, in turn, is no stranger to the remarks made by the C.T.P. regarding overcrowding and lack of control, due to a structural lack of supervisory staff, including medical staff, over the inmate population, "control" entrusted to an informal hierarchy between inmates with generalized danger to the physical safety of the inmates themselves exposed, also, to the risk of abuse by the Police.
CONSIDERED IN LAW
1. The appeal is unfounded.
2. In particular, the censures investing the Court's reasoning on the danger of persecutory treatment to which the extradited person might be exposed in relation to the ongoing armed conflict between Russia and Ukraine are unfounded, a conflict which, as the Court of Appeals correctly noted, at present, does not directly involve the Moldavian State, which has proclaimed its neutrality. The College also notes that it is merely possible further epilogues of a war conflict directly involving the Moldavian state, connected with Russia's expansionist aims on separatist territories of Moldavia, an involvement that has been echoed in the press (in connection with the alleged Russian attack on a Moldavian ship and episodes recorded in the Transnistria region), events, these, which have not been clarified in the competent international fora following the requests for intervention made by the Moldovan authorities and whose genesis, significant in the defense reconstruction because of the possible persecutory and discriminatory treatment to which the plaintiff would be exposed as a result of an invasion by Russia, is still obscure and in any case not traceable to an ongoing armed conflict between the two countries.
3. On the second aspect, the appeal is also unfounded.
The trial court, in line with the findings made by this Court in the annulment judgment, requested clarifications from the Moldovan authorities on the actual prison treatment reserved for P, clarifications forwarded by the National Administration of Penitentiaries in a note dated May 5, 2022, with specific reference to the conditions of detention both in the prison in Chisinau, where the extradite will be held in transit, and in the destination prison, the Leova penitentiary (which was not, however, indicated, in the original note of October 5, 2021 as the institution of custody of the extradite).
The defense's deductions do not compare with the arguments that the Court of Merits developed on the basis of the content of the information transmitted on May 5, 2022: hence the generic nature, due to unspecificity, of the ground of appeal focused on the danger of inhuman and degrading treatment to which the extradite would be exposed during detention, a danger referring to the general conditions of detention in the country resulting from the conclusions reached by the Committee for the Prevention of Torture (C. P.T.) of the Council of Europe in its report of July 27, 2020, published on September 15, 2020, when reviewing the overall state of detention conditions in the Moldovan state and which had also covered the prison in Chisinau, on the basis of a monitoring visit carried out from January 28 to February 7, 2020.
The appellant refers extensively to that Report, the content of which, moreover, was the basis for this Court's annulment judgment, but does not examine the findings of the contested judgment, which are based on the more current note of May 5, 2022.
The news acquired by the Court of Appeals constitutes, in fact, official news, to which the authorities of the executing state cannot deny faith except on the basis of specific and documented findings to the contrary, and these are current news, as opposed to those contained in the July 2020 report; specific, also with regard to the penitentiary in the capital, Chisinau, and, above all, "individualized" because they relate precisely to the penitentiary treatment to which the present appellant will be subjected including his final assignment to penitentiary no. 4 in Leova, which was not indicated in the original notices attached by the Moldovan authorities for extradition purposes.
Not only did the Court of Merits acknowledge the existence of building conditions, sanitary conditions, cleanliness of environments and recognition of prisoners' rights - to this end, the evaluations expressed in the 2020 Report on the generalized improvement of detention conditions in the country were also recalled - but, above all, the Court of Merits examined those critical conditions of the structural and environmental situation of Moldovan prisons resulting from the 2020 Report not so much attributable, ex se, to the overcrowding of the cells (already in the dating note of October 5, 2021, it was noted that the spaces intended for extradited persons were repaired and provided with a minimum area of 4 square meters for each prisoner) as much as to the combination of the effects of the general overcrowding of Moldovan penitentiary institutions with the scarcity of supervisory staff, including medical staff, effects that reverberated on the internal dynamics, including in relation to the supervisory functions that should have been carried out by the supervisory staff, finding the inmates exposed to acts of violence and intimidation due to the climate of fear established by inmates "who were in the highest ranks of the informal hierarchy of the prison," an aspect, this one, of particular criticality highlighted in the 2020 report.
In the reconstruction developed in the contested order - which summarizes the salient contents of the May 5, 2022 memo - it is acknowledged that the spaces of the prison No. 13 in Chisinau and No. 3 in Leova were completely isolated in compliance with the requirements of the detention regime with regard to isolation, custody and surveillance of inmates.
In the Leova institution, in sector no. 4, there are both single cells and cells that can accommodate from two to four persons, again in compliance with a space of 4 square meters for each inmate, and separation from persons permanently sentenced to imprisonment or life imprisonment is respected; permanent surveillance of convicts is ensured both during the day and at night; the implementation of search measures for the removal of interdicted objects that can be used to commit acts of violence; the immediate separation of the aggressor from the victim in the case of incidents in addition to the accompaniment by staff or video surveillance of inmates during movements outside the cell during the day.
Finally, in the note there is a precise indication of the national institutions (the People's Advocate, in the case of adult prisoners and representatives of the Office of the People's Advocate of the Republic) that have free access to the prison facility, institutions that are in charge of carrying out monitoring and verification of the conditions of prisoners. In the presence of such a change in the overall picture of detention conditions even in the Chisinau penitentiary, the circumstance that the extradite's detention situation connected with the general precariousness of the capital's penitentiary (of uncertainty of the extradite's detention situation connected with the general precariousness of the capital's penitentiary) does not have the significance that the defense attaches to it (of uncertainty of the extradite's detention situation connected with the general precariousness of the capital's penitentiary) that the extradite's stay may be extended since the overall detention conditions quite reasonably and on the basis of the most recent information received, were deemed by the Court of Appeals not to result in the risk of subjecting the extradite to inhuman or degrading treatment.
4. In conclusion, the College notes that on the basis of the Edu Court's jurisprudence on prison overcrowding and the poor conditions of detention that have also affected Moldova, that state has committed itself through an Action Plan for the removal of critical issues - removal that is far from complete - to bring the country's penitentiary institutions up to levels and standards that meet requirements for the humanity of punishment (and imprisonment in general) and for the realization of not only the punitive but also the re-educative effect of punishment. This Court, and the annulment judgment of January 26, 2022 precisely echoed this orientation, stated that in the matter of extradition of a national of a member state, for the purpose of ascertaining the obstructive condition of the danger of inhuman or degrading treatment referred to in Article 698, paragraph 1, Code of Criminal Procedure, the judicial authority of the requested state, even in the absence of defensive allegations, in accordance with Article 4 CDFUE, is required to verify, on the basis of objective and updated elements, the reliability of the guarantee coming from the requesting state about the compliance with the conventional standards relating to the treatment of prisoners during the entire re-educational path followed in penitentiary institutions (Sec. 6, no. 18044 of 30/03/2022, Akridis, Rv. 283157). The attention of the jurisprudence, in the past years, has focused, in particular, on the verification of the guarantee of the existence of a vital space (that of three square meters for each prisoner) or compensatory measures (related to the concrete modes of detention according to rules of greater openness) to "balance" the exiguity of smaller spaces.
The countries concerned, and among them Moldova, have undertaken legislative, regulatory and organizational initiatives that European monitoring bodies - and among them the Committee for the Prevention of Torture - continuously monitor for progress and report incompleteness. The Committee's reports constitute documents that integrate objective, reliable and precise elements in relation to the existence of systemic or generalized deficiencies in the conditions of detention, transforming detention into inhuman and degrading treatment by the State requesting the surrender thus being integrated the hostile condition provided for in Article 698, paragraph 1, of the Code of Criminal Procedure.
In the presence of such reports and with reference to the shortcomings recorded, it was considered configurable the onus of the proceeding judge to request supplementary information aimed at knowing the prison treatment to which the extradited person will actually be subjected, pursuant to Art. 13 of the European Convention on Extradition, even in the absence of defensive allegations in this regard (Sect. 6, no. 22818 of 07/23/2020, Balcan, Rv. 279567; Sect. 6, no. 31257 of Oct. 6, 2020, Nastas, non mass.).
The Court of Appeals is obliged, therefore, to acquire updated information from the competent Authorities of the requesting State, so as to verify the current conditions of treatment in the relevant penal institutions, information that must be individualized on the person of the extradited person and on the existence of a detention plan indicating the precise manner of execution since the judicial authority of the requested State must be placed in a position to verify on the basis of precise and detailed information regarding the connotations of the re-educational course followed in the penitentiary institutions where the extradited person will be received, the reliability of the guarantee coming from the requesting State regarding the observance of the conventional standards provided for the purpose of respecting the principles established by Art. 3 ECHR, as interpreted in the jurisprudence of the EDU Court (cf, in motivation, the precedents cited by Sect. U, no. 6551 of 24/09/2020, dep. 2021, Ministry of Justice - Department of Prison Administration, Rv. 280433).
In the case at hand, even in the face of the described critical aspects of the most recent report of the Committee for the Prevention of Torture of the Council of Europe, the content of the most recent information acquired by the Court of Appeal, set out with logical arguments and with completeness, satisfies the requirement of compliance with conventional standards and, therefore, quite reasonably, the Court of Appeal considered the danger of his being subjected to inhuman and degrading treatment to have been overcome, with reference to the extradite.
5. It follows that the appeal is dismissed and the appellant is ordered to pay the costs of the proceedings. The Clerk's Office will take care of the requirements of Article 203 disp. att. cod. proc. pen.
P.Q.M.
Dismisses the appeal and orders the appellant to pay the court costs. Directs the clerk's office to take care of the formalities referred to in Article 203 disp. att.
Code of Criminal Procedure.
Thus decided, on September 1, 2022
The President