Diplomatic assurances consent extradition to Ukraine: despite the ongoing war conflict, it has been assured that international human rights treaties are fully respected in the territories of Ukraine, which are not occupied by the Russian Federation, and that restrictions, due to martial law, concern exceptional cases and under no circumstances can they limit the fundamental elements inherent in the right to a fair trial under Art. 6 ECHR, including the right to defense and legal assistance, the presumption of innocence, the right to silence, the principle of ne bis in idem, and the right to a fair trial. Against these assurances-the extraditee must attach specific acts or facts, which would allow a different conclusion, without which extradition should be granted.
It is true that Ukraine has also suffered in territories not directly affected by ground fighting, bombings and missile attacks by the armed forces of the Russian Federation. However, these are circumstances concerning the general situation existing in the extradition requesting state that do not appear to affect the position of today's applicant, because of the guarantees that the judicial authority of that requesting state has provided regarding the individualizing detention treatment that will be assured to the extradite in a penal institution that is currently located in an area not directly affected by the war events.
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Court of Cassation
Sec. VI Criminal
Judgment 36440 Year 2024
President: APRIL ERCOLE
Rapporteur: PACILLI GIUSEPPINA ANNA ROSARIA
Hearing Date: 01/07/2024 - 30/09/2024
JUDGMENT
On the appeal brought by.
MD, born in Ukraine on **/1970
Against the judgment delivered by the Court of Appeal of Genoa on 23/4/2024.
Having regard to the acts, the judgment appealed and the appeal;
Hearing the report delivered by Councilor Giuseppina Anna Rosaria Pacilli;
read the indictment of Deputy Attorney General Marco Patarnello, who concluded by requesting that the appeal be dismissed;
read the brief filed by Attorney LM, counsel for the appellant, who asked that the appeal be granted
IN FACT
1. In a judgment dated April 23, 2024, the Genoa Court of Appeal declared that the conditions for granting the extradition request made against DM , because he was subject to a provisional arrest order for extradition purposes, issued on April 24, 2023 by the District Court *** - Ukraine for the crime of violation of road safety regulations or transport operations by persons driving vehicles, in case of death of the victim, committed on December 30, 2021.
2. DM's defense counsel appealed against this judgment in cassation, putting forward the following grounds.
2.1. In his first plea, he alleged violation of Articles 705, paragraph 2 (a) and (c), and 698 of the Code of Criminal Procedure, as well as contradictory reasoning, since the Court of Appeal erroneously held that the grounds for preventing the surrender were absent. Where the appellant was handed over to the Authorities of the State of Ukraine, in any case, he would be exposed to serious risks to his life or safety as well as to treatment likely to constitute a violation of fundamental personal rights. The assurances, given by the requesting State, regarding the location of the prison and its conditions, which, moreover, are absolutely different in their description from the reports of the relevant International Organizations and, above all, from the report of the last visit by envoys of the Council of Europe, would not guarantee respect for the rights of the detainee, in the light, in any case, of the escalation of the ongoing conflict and the progressive and constant Russian advance, capable of determining the concrete risk of the evanescence of any reassurance by the requesting State. Once he appeared before the domestic court, the appellant could be subjected to a less afflictive measure and would be at liberty in a war-torn country, with the real risk of being conscripted and sent into combat. The Court of Appeals would also have overlooked the fact that, already shortly after the beginning of the acute phase of the conflict, a ban on expatriation for men between the ages of 18 and 60 entered into force in Ukraine at the same time as so-called martial law, with the obvious purpose of conscription.
2.2. In the second plea, he alleged violation of Article 705 lett. b) of the Code of Criminal Procedure, as it did not appear from the transmitted documents that the appellant's defense counsel had been notified of the act restricting his personal freedom, in blatant violation of the right to defense.
CONSIDERED IN LAW
1. The appeal must be dismissed, because the grounds, articulated therein, are unfounded.
2. As to the first ground, it must be noted that the Court of Appeal, after stating that the European Court of Human Rights - in proceedings concerning complaints against the requesting State by convicted persons and detainees for violations of the rights guaranteed by Articles 2 and 3 of the Convention in view of the dangerous conditions of their detention as a result of the ongoing conflict - following the information provided by the Ukrainian State did not adopt provisional measures pursuant to Art. 39 of the Rules of Procedure, considering the situation of the institutions to be under control, given the commitment to ensure the fundamental human rights and security of the detainees, added that the Ukrainian Minister of Justice had approved a list of pre-trial detention institutions intended for persons handed over to Ukraine in extradition proceedings, indicating in which among those institutions, located in the western part of the country, far from the combat zone, the extradited person would be confined in case of surrender, specifying the detention conditions applied in that institution in compliance with the standards required by the jurisprudence of the Strasbourg Court and the Supreme Court (space, prison regime, sanitary conditions, access to defense); similar measures will be applied in the case of execution of sentences, should the extradited person be convicted.
The reasoning of the contested order thus appears to be appropriate, the judges of the merits having, by valuing the specific and individual information sent by the Ukrainian judicial authority, pointed out that, in the event of extradition, the appellant - who is answerable for a common crime, without any reflection of a political nature - will be destined for an institution located in a region currently not directly affected by the fighting between the Ukrainian and Russian armed forces, in general conditions that are more than adequate and compatible with the fundamental rights of the person. In the face of these allegations, based on the extensive information acquired, including the assurances given regarding the location of the penal institution where the appellant would be taken, the appellant's grievances appear generic and merely repetitive of those disrerarded by the Genovese judge.
It is true that Ukraine has also suffered in territories not directly affected by ground fighting, bombings and missile attacks by the armed forces of the Russian Federation. These are, however, circumstances concerning the general situation existing in the extradition requesting state that do not appear to affect the position of today's applicant, because of the guarantees that the judicial authority of that requesting state has provided regarding the individualizing detention treatment that will be assured to the extradite in a penal institution that is currently located in an area not directly affected by the war events.
3. The other grievances raised in the first ground of the appeal also miss the point. It must be noted, in fact, that the feared danger that the extradited person will be subject to a ban on leaving the country is entirely possible, because, in application of the measure imposed on him, he will go to a detention institution and will not be free. It should be added that the danger, also denounced in the appeal, of the application against the appellant of military martial law, currently in force in Ukraine, as well as of the discipline that provides for forms of forced mobilization and recruitment in that country to meet the needs of the armed forces and logistical and support structures was not raised on appeal and, therefore, cannot be raised for the first time here. Moreover, such a danger was raised in generic terms, as no objective, precise and up-to-date elements suitable to substantiate the fear that extradition to Ukraine could prelude his being subjected to martial law were attached.
4. The second ground of the appeal is also unfounded. The Court of Appeals - with regard to the question of the effective exercise of the right of defense in the ongoing proceedings in the requesting state - stated that in the order, issued by the investigating judge on April 24, 2023, applying the pre-trial detention measure against the applicant and in the additional information, transmitted, following the request of the same court by the Ukrainian Prosecutor General's Office in a note dated March 4, 2024, it had been specified that, if the pre-trial detention measure is issued in the absence of the suspect/defendant, who voluntarily left the national territory, as in the present case, the investigating judge, within 48 hours of the surrender, shall consider with the participation of the suspect and his defense counsel whether to apply pre-trial detention in prison or a milder measure.
Therefore, the procedure and, therefore, the provisional nature of the April 24, 2023 order exclude the possibility of a violation of the principle of defense in this case. The Court of Appeals added that in the annex to the extradition request to the record it was assured that, despite the ongoing war conflict, international human rights treaties are fully respected in the territories of Ukraine, which are not occupied by the Russian Federation, and that the restrictions, due to martial law, concern exceptional cases and under no circumstances can they limit the fundamental elements inherent in the right to a fair trial under Article 6 ECHR, including the right to defense and legal assistance, the presumption of innocence, the right to silence, and the principle of ne bis in idem. These reassurances were reiterated in the note on further information provided on March 4, 2024, following a request, which stated that the applicant will be guaranteed the right to a fair and public trial within a reasonable period of time by an independent and impartial tribunal and a legal defense with the assistance of defense counsel. The Court added that - in the face of these assurances - the extraditee had not attached specific acts or facts, which would allow a different conclusion to be reached.
5. Ultimately, the appeal must be dismissed, which entails, pursuant to Article 616 of the Code of Criminal Procedure, an order that the appellant pay the costs of the proceedings.
6. The Clerk's Office will take care of the formalities pursuant to Article 203 disp. att. cod. proc. penale.
P.Q.M. Dismisses the appeal and orders the appellant to pay the court costs. Sends to the clerk's office for compliance with Article 203 disp. att. cod. proc. penale. Thus decided on July 1, 2024