Following the recent war in Ukraine, the Committee of Ministers of the Council of Europe, having noted (in Resolution CM/Res (2022)2 adopted on March 16, 2022) that the Government of the Russian Federation, in a communication dated March 15, 2022, informed the Secretary General of its withdrawal from the Council of Europe and of its intention to denounce the European Convention on Human Rights, has decided - as part of the procedure initiated pursuant to art. 8 of the Statute of the Council of Europe - that the Russian Federation will cease to be a member of the Council of Europe as of March 16, 2022.
In a subsequent Resolution adopted on 23 March 2022 at the 1429- bis meeting of the Delegates of Ministers [CM/Res(2022)3)], the Committee of Ministers of the Council of Europe, recalling, in particular, its previous resolution of 16 March 2022 and that adopted on 22 March 2022 by the European Court of Human Rights on the consequences of the termination of the membership of the Russian Federation in the Council of Europe in the light of Art. 58 of the European Convention on Human Rights, decided, inter alia, that the Russian Federation, while continuing to be a party to the conventions and protocols concluded within the framework of the Council of Europe, to which it has expressed its consent to be bound, and which are open to accession by third States (such as, for example, that relating to extradition), ceases to be a High Contracting Party to the European Convention on Human Rights on September 16, 2022.
The judicial authority of the requested state is required to verify, on the basis of precise and detailed information regarding the connotations of the treatment and the entire re-education process followed in the penitentiary institutions where the extradited person will be received, the reliability of the guarantee from the requesting state regarding compliance with the conventional standards laid down for the purpose of respecting the principles established by the ECHR, as interpreted in the case law of the European Court of Human Rights and Fundamental Freedoms.
In order to ascertain the ban to extradition, the Court of Appeal may base its decision on the existence of human rights violations in the requesting country also on the basis of documents and reports drawn up by non-governmental organizations - such as, for example, Amnesty International and Human Rights Watch -, since these are organizations considered reliable at international level.
The judicial authority of requested State has to consider that in the extradition request the authorities of the requesting State have expressly referred to the provisions of art. 3 and 6 ECHR as parameters. 3 and 6 ECHR as parameters of reference to be respected in order to ensure the extradited person from the danger of torture or inhuman, degrading and harmful treatment of human dignity: conventional provisions, these, which contain the affirmation of fundamental principles, solemnly enshrined in an international convention to which the Russia as requesting State, however, will cease to be part from September 16, 2022, as a result of its withdrawal from the Council of Europe and its intention to denounce that European Convention.
When an extradition request from a third State is submitted to a Member State of the European Union to which a national of another Member State has travelled, it is obliged to inform the Member State of which the claimed person is a national, in order to allow the competent authorities of the latter to issue a European arrest warrant for his or her surrender for the purpose of prosecution.
Court of Cassation
Sentence VI criminal section
No. 18044 Year 2022
President: RICCIARELLI MASSIMO Rapporteur: DE AMICIS GAETANO
Date of Hearing: 30/03/2022 - filed May 5, 2022
JUDGMENT
on the appeal brought by
AK (alias KA), born on **/1965 in Russia
against the sentence of January 14, 2022 of the Court of Appeal of Milan
having regard to the deeds, the contested measure and the appeal;
having heard the report of Counselor Gaetano De Amicis;
having heard the opinion of the Public Prosecutor, in the person of the Deputy Attorney General, Simone Perelli, who concluded by requesting that the appeal be rejected;
having heard the opinion of the Attorney General, Mr. AL, who concluded by insisting that the appeal be accepted.
FACTS CONSIDERED
1. With the judgment of January 14, 2022 the Court of Appeal of Milan declared the existence of the conditions for the procedural extradition to the Russian Federation of the Greek citizen AK alias KA, in relation to the arrest warrant issued by the Court of Syktyvkar on March 15, 2012 for the crimes of participation in a criminal organization, participation in a stable armed group and assaults perpetrated by it, as well as for the crime of murder, referred to in Articles 210, par. 2, 209, par. 2, 105, par. 2, points g) and h) of the Russian Criminal Code.
2. The defense counsel appealed against this decision in cassation, putting forward a first plea in law alleging violations of the law pursuant to articles 700, paragraph 2, letter c), 703, 704 and 705 of the Code of Criminal Procedure, in relation to the failure to analyze the fingerprints useful for ascertaining the real identity of the requested person, since the Court of Appeal failed to compare those sent by the requesting State in relation to the person of K with those carried out on the person of A.
The only evidence in support of the coincidence of the two identities would be offered by a photograph - not sent with the extradition request - of which, however, the origin and nature, the date of formation and the author of the transmission are unknown.
In the documents sent by the Russian Federation, moreover, there is no reference to the person of A, while any act and element of circumstantial evidence in terms of imputation of the wanted subject are referred exclusively to the person of K.
2.1. The second ground of appeal alleges violations of the law pursuant to Article 705, paragraph 2, letter a) and letter c), Article 698 of the Code of Criminal Procedure and Article 4(2) of the Charter of Fundamental Rights of the European Union, in relation to the failure to assess the prison treatment and sanctions to which the extradited person would be subjected, in that the Court of Appeal considered the general indications provided by the requesting State to be sufficient, although no concrete indication could be found with reference to the actual compliance with the provisions of Article 19 of the Charter of Fundamental Rights of the European Union. 19 of the Charter of Fundamental Rights of the European Union and in spite of the documentary evidence concerning the dramatic conditions in Russian prisons and the recent sentences pronounced by the European Court of Human Rights for conduct contrary to art. 3 ECHR.
2.2. Finally, a third plea alleges similar defects in relation to Articles 18, 20 and 21 of the Treaty on the Functioning of the European Union, given the failure to inform Greece, as the extradite's State of nationality, of receipt of the extradition request from a third State, and the consequent failure to state reasons for the defence's objection in this regard.
3. In a memorandum sent to the Registry of this Supreme Court on March 24, 2022, the extraditee's lawyer, Mr. AL, illustrated further arguments in support of the grounds for appeal, insisting on its acceptance.
CONSIDERED IN LAW
1. The appeal is well-founded and must be accepted for the reasons set out below.
2. With regard to the first ground, it should be noted that the statements contained in the judgment under appeal are not conclusive with regard to the many aspects of the complaint relating to the necessary verification of the real identity of the extradited person, since, on the one hand, they have not explained, if not in a conjectural way, the reason why he is in possession of regular identity documents issued by the Greek authorities, on the other hand, they have not examined the complex of exceptions accurately formulated by the defense.
Recalling what has already been stated in the narrative (see, supra, par. 2), it must also be added that, for the purpose of a certain attribution of the identity of K to the person of the present appellant, the contested decision incongruously considered as sufficient the content of a letter sent by the requesting State, which pointed out that, in apparent contradiction with the documents in possession of the extradited person (birth certificate and marriage of his parents) and with what he himself declared, the person of A was not registered with a Russian passport and was not a citizen of the Russian Federation: in this regard, in fact, the District Court did not evaluate the error in the indication of the name of the extraditee, nor the factual circumstances - also punctually pointed out by the defense - relating to the absence of any investigation with respect to the applicant's mother and the Russian passport number verified as not corresponding to the name of A.
No comparative examination of the fingerprints provided by the requesting state was carried out, nor can the hypothetical statement that the proven authenticity of Greek identity documents does not exclude the assumption of a new identity be considered supported by an adequate logical and argumentative basis.
3. The third ground of appeal, concerning the failure to activate the procedure for informing the Hellenic Republic, of which the extradited person is a citizen, about the extradition request made against him by the Russian Federation, is also well founded.
In this respect, indeed, the decisive consideration that the decisions in this regard issued by the Court of Justice of the European Union (6 September 2016, Petruhhin, C-182/15; 10 April 2018, Pisciotti, C.191 /16; 17 December 2020, BY with the intervention of Generarstaatsanwaltschaft Berlin, C-398/19) have established the principle that, when an extradition request from a third State is submitted to a Member State of the European Union to which a national having the nationality of another Member State has travelled, it is obliged to inform the Member State of which the claimed person has the nationality, in order to allow the competent authorities of the latter the possibility of issuing a European arrest warrant for his or her surrender for the purpose of prosecution.
A similar principle has been affirmed in this regard by this Supreme Court (Sect. 6, no. 26310 of 26/05/2021, Klug, Rv. 281543).
To this end, in accordance with the principle of loyal cooperation enshrined in art. 4, par. 3, first paragraph, TEU, the European Union and the Member States respect and assist each other in carrying out the tasks arising from the Treaties (see, to that effect, judgment of 6 September 2016, Petruhhin, C-182/15, paragraph 42), with the result that it is for the requested Member State to inform the competent authorities of the Member State of which the claimed person is a national not only of the existence of an extradition request concerning him but also of all the elements of law and fact communicated by the requesting third State in the context of that extradition request, it being understood that those authorities are nevertheless required to respect the confidentiality of those elements where the latter has been requested by that third State, which has been duly informed in that regard.
Moreover, the Member State requested to extradite is also under an obligation to keep those authorities informed of any change in the situation of the person claimed to be extradited which is relevant to the possible issuance of a European arrest warrant against him or her, as set out in paragraphs 43 and 44 of the aforementioned decision of 17 December 2020 of the Court of Justice in the BY case.
4. With regard to the content of the grounds for complaint that are the subject of the second ground of appeal, this Supreme Court has in general ruled, establishing the principle according to which, for the purposes of ascertaining the hostile condition provided for by art. 698, paragraph 1, of the Italian penal code, it is necessary to assess whether there is a general risk of inhuman or degrading treatment in the requesting country, using, to this end, objective, reliable, precise and appropriately updated elements regarding the conditions of detention in force there and, having verified the existence of this risk, it must carry out a targeted investigation, also through the request for additional information, in order to ascertain whether, in the concrete case, the person interested in the delivery will be subjected, or not, to inhuman or degrading treatment (see Sez. 6, no. 28822 of 28/06/2016, Diuligher,, Rv. 268109).
It has also been specified that, on the subject of extradition for foreign countries, in the presence of a situation of risk of being subjected to inhuman or degrading treatment attested by reliable international sources, it is the duty of the court of appeal, for the purposes of ascertaining the hostile condition provided for by art. 698, paragraph 1, cod. proc. pen, to request additional 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 (Sez. 6, no. 22818 of 23/07/2020, Balcan, Rv. 279567).
4.1. In examining the reasons for the defense's objection, the District Court complied with the above-mentioned principles, ordering the acquisition, through the Ministry of Justice, of additional information from the competent authorities of the requesting State, in order to verify the current state of treatment conditions in the relevant penal institutions.
On the basis of the reply note sent by the Ministry of Justice on January 11, 2022, with which the requesting State's reply was forwarded, the judgment under appeal held that the defense's objections regarding the adequacy of prison treatment were unfounded, on the one hand excluding the existence of a widespread situation of a systemic, or in any case generalized, nature, of violation of the fundamental rights of persons detained in the penitentiary institutions of the requesting state, on the other hand highlighting the circumstance that in the prison indicated as that of destination of the extradited - located in the territory of the Republic of Komi - there are no conditions of prison overcrowding for the suitability of living space (four square meters) reserved for each person and are reserved for each 'person. ) reserved for each person and other relevant standards are respected (duration of exposure to daylight, heating, water supply, natural and artificial lighting, equipment in the cells, etc.) for the purposes of compliance with the guarantees provided by the provisions of Articles 3 and 4 ECHR.
4.2. Having said that, it must be noted that the judicial authority of the requested State is required to verify, on the basis of precise and detailed information regarding the characteristics of the treatment and the entire re-education process followed in the penitentiary institutions where the extradited person will be received, the reliability of the guarantee given by the requesting State regarding compliance with the conventional standards laid down for the purpose of respecting the principles established by the ECHR, as interpreted in the case law of the European Court of Human Rights and Fundamental Freedoms (most recently see. Sez. 6, no. 9680 of January 26, 2022, Plasciuc; Sez. 6, no. 31257 of October 6, 2020, Nastas; see, Moreover, the precedents referred to by Sect. 6, no. 6551 of 24/09/2020, dep. 2021, Ministry of Justice - Department of Prison Administration, Rv. 280433).
In the same perspective, reference should also be made to the principles established by the Court of Justice (Grand Chamber, April 2, 2020, C-897-19 PPU, I.N.), according to which the Member State requested for extradition, in accordance with Article 4 of the Charter of Fundamental Rights, which prohibits inhuman and degrading punishment or treatment, cannot limit itself to taking into consideration only the declarations of the requesting third State or the acceptance, by the latter, of international treaties that guarantee, in principle, respect for fundamental rights. The competent authority of the requested Member State " must rely, for the purposes of that verification, on objective, reliable, precise and appropriately updated elements, elements which may result, in particular, from international judicial decisions, such as judgments of the European Court of Human Rights, from judicial decisions of the requesting third State and from decisions, reports and other documents prepared by the bodies of the Council of Europe or belonging to the United Nations system (judgment of 6 September 2016, Petruhhin, C-182/15, EU: C:2016:630, paragraphs 55 to 59 and case law cited therein)".
In relation to these profiles, on the other hand, it does not appear that the documentation produced by the appellant regarding the significance attributable to recent decisions issued by the EDU Court (Third Chamber, 19 January 2021, Shlykov and others v. Russia, nos. 78638/11 etc.) for violations (relating to practices in the field of human rights and the protection of human rights, etc.) has been examined. ) for violations (relating to the practice of systematic and prolonged handcuffing of persons detained for serious offences) occurring in the territory where the prison of destination is allegedly located, nor that relating to the findings offered by a detailed and recent (January 13, 2022) journalistic investigation by an Italian newspaper concerning the existence of widespread torture and acts of violence in numerous prisons in the requesting State, or the results of an equally recent inspection visit (from September 20 to October 4, 2021) to several Russian prisons by the Council of Europe's Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT).
There is also to be considered that, in the light of the principles established by this Supreme Court regarding the criteria for verifying the reported danger of cruel, inhuman or degrading treatment (most recently see Sec. 6, no. 54467 of 15/11/2016, Resneli, Rv. 268933), for the verification of the bam to extradition provided for by art. 698, paragraph 1, cod. proc. crimin. the Court of Appeal may base its decision on the existence of human rights violations in the requesting country also on the basis of documents and reports prepared by non-governmental organizations - such as, for example, Amnesty International and Human Rights Watch - as these organizations are considered reliable at international level, as also stated by the jurisprudence of the EDU Court in the sentence Saadi v. Italy of February 28, 2008.
In this regard, the latest report drawn up by Amnesty International (2021-2022), with reference to the conditions in the penal institutions of the requesting State, shows the persistence, with features defined as "endemic", of acts of torture and other ill-treatment of persons held in custody, while the legal proceedings initiated against the perpetrators of such conduct continue to be "very rare".
4.3. Finally, it should be noted that, following the recent war conflict in Ukraine, the Committee of Ministers of the Council of Europe, having noted (in Resolution CM/Res (2022)2 adopted on March 16, 2022) that the Government of the Russian Federation, in a communication dated March 15, 2022, informed the Secretary General of its withdrawal from the Council of Europe and of its intention to denounce the European Convention on Human Rights, has decided - as part of the procedure initiated pursuant to art. 8 of the Statute of the Council of Europe - that the Russian Federation will cease to be a member of the Council of Europe as of March 16, 2022.
In a subsequent Resolution adopted on 23 March 2022 at the 1429- bis meeting of the Delegates of Ministers [CM/Res(2022)3)], the Committee of Ministers of the Council of Europe, recalling, in particular, its previous resolution of 16 March 2022 and that adopted on 22 March 2022 by the European Court of Human Rights on the consequences of the termination of the membership of the Russian Federation in the Council of Europe in the light of Art. 58 of the European Convention on Human Rights, decided, inter alia, that the Russian Federation, while continuing to be a party to the conventions and protocols concluded within the framework of the Council of Europe, to which it has expressed its consent to be bound, and which are open to accession by third States (such as, for example, that relating to extradition), ceases to be a High Contracting Party to the European Convention on Human Rights on September 16, 2022.
Factual and procedural circumstances, those just mentioned, which the District Court must examine together with all the above mentioned critical profiles that have been the subject of the - not adequately examined - reasons of complaint set out in the second ground of appeal, appreciating in practice the impact in light of the fact that in the extradition request the authorities of the requesting State have expressly referred to the provisions of art. 3 and 6 ECHR as parameters. 3 and 6 ECHR as parameters of reference to be respected in order to ensure the extradited person from the danger of torture or inhuman, degrading and harmful treatment of human dignity: conventional provisions, these, which contain the affirmation of fundamental principles, solemnly enshrined in an international convention to which the requesting State, however, will cease to be part from September 16, 2022, as a result of its withdrawal from the Council of Europe and its intention to denounce that European Convention.
5. On the basis of the above considerations it is necessary, in conclusion, to annul the contested sentence, with referral for a new judgment to another Section of the Court of Appeal indicated in the operative part.
The Clerk's Office will see to the completion of the tasks referred to in art. 203 of the Code of Criminal Procedure.
P.Q.M.
Annuls the contested sentence and refers the case to another section of the Court of Appeal of Milan for further judgment.
It sends the Clerk of the Court to carry out the formalities referred to in Art. 203 of the Code of Criminal Procedure.