Basically, once it has been affirmed that the principle of ne bis in idem does not constitute either a principle or a custom of international law, it has been held that when Italian jurisdiction is recognised on the basis of the norms of domestic law (articles 6 and 11 of the Italian penal code), these can withdraw with respect to international norms, which provide for hypotheses of ne bis in idem, only in the presence of conventions between states, ratified and made executive, which bind only the contracting states, within the limits of the agreement reached.
This approach, which is still valid on a properly international level, deserves to be reconsidered in the European context, where the principle of ne bis in idem finds important and repeated affirmations which, also taking into account the pronouncements of the European Courts, qualify it rather as a general principle.
First of all, the principle finds an almost general application in Europe and has risen to the rank of a fundamental right of the citizen with the Additional Protocol no. 7 to the European Convention on Human Rights, signed on November 22, 1984, which in art. 4 states the right not to be judged or punished twice ("no one shall be prosecuted or sentenced in criminal proceedings by the courts of the same State for an offence for which he has already been cleared or convicted following a final judgment in accordance with the law and criminal procedure of that State").
In the context of the defined area of application of the fundamental rights provided for in the Nice Charter, it must be considered that the principle of ne bis in idem referred to in art. 50 must be fully recognized in our domestic system, in the sense that the Italian judge must implement it through the recognition of the sentences issued by the judges belonging to the member states of the Union. In essence, in the European context, any judgment issued by a member state must be valid as a judgment of each individual state, on the assumption that these are systems based on respect for human rights and defensive guarantees that constitute the core of due process. The national judge is also a judge of the European Union and as such is obliged to apply the principles and fundamental rights that are part of the constitutional structure of the Union, which is also based on the idea of a "community of rights" (Grundrechtsgemeinschaft). In fact, it is up to the national judge, who has to deal with the integrated system of constitutional, community and international sources as well as with the legislation of the Union, to ensure the constant protection of fundamental rights and the fundamental right of ne bis in idem which, as it is placed for the protection of the individual, must be ensured and guaranteed to anyone who has already been judged by a court of a member state of the European Union, regardless, of course, of European citizenship.
In fact, art. 54 of the CISA establishes that "a person who has been judged by a final judgment in one Contracting Party may not be subjected to criminal proceedings for the same facts in another Contracting Party, provided that, in the event of conviction, the sentence has been served or is actually being served at present or, according to the law of the convicting Contracting Party, can no longer be served".
unofficial translation
Cassazione penale
VI criminal chamber, ruling 21-12-2016, n. 54467 (hearing 15/11/2016)
Consisting of the Ill.mi Sigg.ri Magistrates:
Dr. ROTUNDO Vincenzo - President - - Dr. FIDELBO Giorgio - Relative Counselor -.
Dr. FIDELBO Giorgio - rel. Counselor - - Dr. CAPOZZI Angelo - Counselor.
Dr. CAPOZZI Angelo - Councilor - Dr. GIORDANO Emilia Anna - Dr. GIORDANO Emilia Anna.
Dott. GIORDANO Emilia Anna - Councilor - Dott.
Dr. CORBO Antonio - Councilor -
pronounced the following:
JUDGMENT
on the appeal brought by:
R.A., born on (OMISSIS);
against the judgment of 27/04/2016 issued by the Court of Appeal of Venice;
having regard to the acts, the judgment under appeal and the appeal;
having heard the report of Counsel Dr. Giorgio Fidelbo;
having heard the Public Prosecutor, in the person of the Deputy Attorney General Dr. Cardia Delia, who concluded by requesting the annulment with referral of the contested judgment;
having heard the opinions of the legal experts, Massimo Krogh and Nicola Canestrini, the latter acting as legal representative for the lawyer, Gilberto Tommasi, who called for the appeal to be accepted.
Facts of the proceedings
1. With the decision indicated in the epigraph, the Court of Appeal of Venice declared that the conditions existed for the acceptance of the extradition request made by the Republic of Turkey against R.A., on the basis of the arrest warrant issued by the judicial authorities of Istanbul, for the crime of association and illegal drug trafficking, having transported 86 kilos of heroin from Turkey to Germany.
The territorial Court, while acknowledging that the extradited person has already been judged for the same fact in Germany, where he has served the sentence imposed, considered, on the basis of art. 9 of the European Convention on Extradition, that the rule of ne bis in idem is valid within the domestic procedural relations and cannot be transferred to international relations, in the absence of a specific conventional provision. Moreover, the existence of conditions preventing the acceptance of the extradition request referring to inhuman treatment and prison conditions in Turkey has been excluded, considering the documentation produced in this regard by the defense inadequate, because extracted from the internet and in any case insufficient to demonstrate the inhuman condition of the Turkish prison system.
2. Against this decision the attorneys Gilberto Tommasi and Massimo Krogh, R.'s advocates, appealed for cassation.
2.1. With the first plea they claim that there is a defect in the reasoning, as the Court of Appeal did not evaluate, in a complete manner, the elements resulting from the acts and produced by the defense regarding the reasons that would justify the refusal of extradition pursuant to art. 705 c.p.p., paragraph 2, letter a). paragraph 2, lett. a) and c), reasons related to the fact that for R. the delivery to Turkey would involve the risk of being subjected to a trial without adequate guarantees and to suffer inhuman treatment, in violation of fundamental human rights. In this regard, they complain that the Territorial Court did not take into consideration what emerged from the documents and, in particular: a) the cooperation given by the extradited person to the German judicial authority, with the revelation of the names of the other participants in the association and the capture of the same in Turkey, where it appears that they have also been sentenced; b) the submission to a protection program in Germany; c) the attempts of conditioning suffered by the members of the criminal association to make him recant; d) the situation of compromise of human rights in Turkey, as documented by the results of a visit made in that country by representatives of the Italian Criminal Chambers and by the documentation of Amnesty International. This production would have been completely devalued and considered insufficient. In any case, it is argued, that the judges could, however, acquire and evaluate elements through information from the press.
2.2. With the second reason denounce the violation of art. 705 c.p.p.. paragraph 1, and Law no. 300 of 1963, art. 9, challenging the contested decision that, while acknowledging that R. was convicted for the same fact in Germany, denies relevance to the principle of ne bis in idem. According to the defenders, the Court of Appeal did not take into account the fact that the 1988 Code of Procedure and the insertion of art. 705, paragraph 1, introduced a tendential principle, which inspires the international legal system, that responds to obvious reasons of guarantee of the individual before the punitive claims of States, even if it is not assumed as a rule of international law. Recalling many of the international Conventions and Acts - including, in particular, art. 50 of the Charter of Fundamental Rights of the European Union of 7 December 2000 (Nice Charter) and the European Summit of Tampere in 1999, which consider the principle of international ne bis in idem fundamental and define it as an individual right, they maintain that it is a general principle, certainly applicable in our internal system in the light of articles 3, 27 and 113 of the Italian Constitution, art. 12 of the Charter of Fundamental Rights of the European Union, and art. 12 of the Treaty of Lisbon. art. 12 preleggi and the same articles 649 and 705 c.p.p.. This principle must be applied within the European Union, through the full recognition of the sentences issued by European judges.
In conclusion, any sentence issued by the judicial authorities of an EU member state, if final, has the same effects as an Italian sentence, also producing the effects of ne bis in idem.
2.3. With a subsequent memorandum and with additional grounds the applicants have reiterated the reasons underlying the appeal, both in relation to the existence of the conditions that justify the refusal of extradition due to the danger to the safety of R., based on the documentation received from Germany and Turkey, and with regard to the effects of the principle of ne bis in idem.
2.4. On 3 November 2016, lawyer Nicola Canestrini, as procedural substitute for lawyer Tommasi, filed an integration of the grounds of appeal, with specific reference to the violation of fundamental rights and the right to a fair trial by Turkey.
Reasons for the decision
1. Both of the pleas raised are well-founded.
2. The Court of Appeal, while acknowledging that it is undisputed that R. has already been judged in Germany - with a sentence of seven years' imprisonment handed down by the Court of Cologne, which became enforceable on 24.3.2003 (sentence served) - for the same facts for which extradition is requested, held that art. Article 9 of the European Convention on Extradition, which is applicable in this case, limits the principle of ne bis in idem to cases in which there is a final sentence handed down against the extradited person in the requested State, but does not cover the hypothesis of a sentence handed down by a third country, which is the case here. The judges refer to a precedent of this Court which applied the same principle with reference to art. 9 cited above, excluding the hypothesis of ne bis in idem in the case of an extradited person requested from Italy by Greece, who claimed to have been acquitted, for the same crime, in Albania (Sez. 6, no. 3747 of 18/12/2013, Dyrmyshi, Rv. 258250).
However, in this decision there is a relevant passage, in which it is recognized to the Law of September 30, 1993, n. 388, art. 54, ratifying the Schengen Convention of 1990 character of conventional rule able to transfer the value of the principle of ne bis in idem from the internal procedural relations to international relations, although then it is excluded that it may have relevance in the case in question, probably because - on this point the decision is not explicit Albania is not among the countries adhering to the Schengen agreements. Well, in the present appeal the case is different, since the third country (Germany), where the sentence was issued for the same facts that are the subject of the extradition request, is not only a country that has joined the Schengen agreement, but above all it is a member state of the European Union.
The precedent cited by the contested judgment is not, therefore, superimposable to the present case and, on the contrary, contains a statement that is indicative of a normative evolution of the principle of ne bis in idem in the European context, as correctly pointed out in R.'s appeal.
2.1. As is well known, the principle of ne bis in idem finds its internal discipline in art. 649 c.p.p., but is not expressly contemplated in art. 649 c.p.p.. but it is not expressly contemplated by the Italian Constitution; however, the constitutional jurisprudence refers it to articles 24 and 111 of the Italian Constitution (Constitutional Court, sentence no. 649 of the Italian Constitution). (Constitutional Court, sentence no. 501 of 2000 and sentence no. 129 of 2008) and is considered by the Court of Cassation a general principle of the system, functional to the requirements of rationality and functionality of the system, a principle from which the judge, in accordance with art. 12 preleggi, paragraph 2, cannot disregard in the interpretative activity (Sez. U, no. 34655 of 28/09/2005, Donati).
2.2. On an international level, the principle in question has always found a certain resistance to being accepted, in that it ends up limiting national sovereignty and the same art. 11 c.p., which denies any preclusive value, has been accepted by the courts. The jurisprudence of legitimacy, starting from the ascertainment that ne bis in idem is not a general principle of international law and as such applicable in the domestic system, considers that a trial held against a foreign defendant in a State with which there are no agreements in force that can derogate from the discipline of art. 11 c.p., does not preclude the renewal of the trial against a foreign defendant in the event that the crime has been committed, even in part, in Italy. does not preclude the renewal of the trial in Italy for the same facts (Sect. 1, no. 29664 of 12/06/2014, Spalevic, Rv. 260537; Sect. 1, no. 20464 of 05/04/2013, N., Rv. 256162; Sect. 6, no. 44830 of 11/09/2004, Cuomo, Rv. 230595; Sect. 1, no. 12953 of 05/02/2004, Di Blasi, Rv. 227852).
Basically, once it has been affirmed that the principle of ne bis in idem does not constitute either a principle or a custom of international law, it has been held that when Italian jurisdiction is recognised on the basis of the norms of domestic law (articles 6 and 11 of the penal code), these can withdraw with respect to international norms, which provide for hypotheses of ne bis in idem, only in the presence of conventions between states, ratified and made executive, which bind only the contracting states, within the limits of the agreement reached.
This approach, which is still valid on a properly international level, deserves to be reconsidered in the European context, where the principle of ne bis in idem finds important and repeated affirmations which, also taking into account the pronouncements of the European Courts, qualify it rather as a general principle.
First of all, the principle finds an almost general application in Europe and has risen to the rank of a fundamental right of the citizen with the Additional Protocol no. 7 to the European Convention on Human Rights, signed on November 22, 1984, which in art. 4 states the right not to be judged or punished twice ("no one shall be prosecuted or sentenced in criminal proceedings by the courts of the same State for an offence for which he has already been cleared or convicted following a final judgment in accordance with the law and criminal procedure of that State").
A first important recognition of the European value of the criminal judgement is constituted by the European Convention on the International Validity of Criminal Judgements, opened for signature in The Hague on May 28, 1970, as well as the European Convention on the European Transmission of Criminal Judgements, opened for signature in Strasbourg on May 15, 1972, and the Brussels Convention of May 25, 1987, on the application of the principle of ne bis in idem in the European context, in which the principle is considered as "international effect of the judgement rendered in each of the member states", a formulation that will be taken up in the Schengen Convention. With specific reference to Europe, other instruments have made express reference to the principle of ne bis in idem, including, by way of example, the Convention of 26 July 1995 on the financial interests of the European Communities (art. 7) and the Convention on the fight against corruption involving officials of the European Communities (art. 10).
However, it is with the Convention of June 19, 1990 for the application of the Schengen Agreement that the recognition of the effect of ne bis in idem on a higher level than the national one is consolidated, on the assumption of a common and mutual trust between European States, especially after the Convention became part of the Community acquis, with the protocol signed in Amsterdam on October 2, 1997.
In fact, art. 54 of the Convention, implemented by Law no. 388 of September 30, 1993, establishes that "a person who has been judged by a final judgment in one Contracting Party may not be subjected to criminal proceedings for the same facts in another Contracting Party, provided that, in the event of conviction, the sentence has been served or is actually being served at present or, according to the law of the convicting Contracting Party, can no longer be served".
In this way the national judgement is attributed a preclusive efficacy with regard to the exercise of the criminal action for the same fact in any other member State, although the operativeness of the principle is limited by the provision contained in art. 55, in which the contracting parties are recognized the faculty to exclude from the application of the convention the decisions relating to facts committed, even in part, on the national territory or to crimes against the security or against essential interests of the contracting party or even committed by public officials in violation of their official duties.
In any case, with art. 54 cited above there has been a normative evolution in the consideration of the European ne bis in idem, an evolution recognized by jurisprudence (cf, In any case, with art. 54 cited above, there has been a normative evolution in the consideration of the European ne bis idem, an evolution acknowledged by jurisprudence (see, Sez. 1, no. 28299 of 03/06/2004, Desiderio, Rv. 228779) and by doctrine, which has pointed out how, with the Schengen Convention, the substantial equivalence between the final sentences pronounced by the contracting States has been achieved, which is justified on the basis of the "substantial homogeneity of the systems of the countries that signed the agreement due to the effect of the common adhesion to the general principles of community law and to the framework of substantial and procedural guarantees inherent in the respect of human rights and fundamental freedoms of European citizens". On the other hand, the Court of Justice of Luxembourg identifies the presupposition of the principle of ne bis in idem precisely in the existence of a relationship of mutual trust between the member states within a common judicial area in which each country is obliged to accept the application of the criminal law in force in the systems of the other member states, "even when recourse to its own national law would lead to different solutions" (Court of Justice, 11/02/2003, Gozutok and Brugge; Court of Justice, 10/03/2005, Miraglia; Court of Justice, 09/03/2006, Van Esbroeck).
However, until the Convention of 1990, with which the Schengen Agreement was implemented and significant progress was made in recognizing the existence of a European judicial area also due to the importance of the principle in question, jurisprudence has always avoided conceiving ne bis in idem as a generally recognized principle of international law, applying it only when it was provided for by a contractual norm implemented by Italy.
It is with the Charter of Fundamental Rights of the European Union (the so-called Charter of Nice) which, as a result of the Treaty of Lisbon has assumed the same legal value as the Treaties establishing the Union, that the principle of ne bis in idem is further consolidated in its European dimension and is configured as a real right to protect the accused.
Article 50 of the Charter states the right not to be tried or punished twice for the same offence: "no one shall be liable to be tried or punished again for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law". In its effective conciseness, art. 50 offers a broader form of protection of the ne bis in idem insofar as it goes beyond the need to recall the application of the principle in the individual contractual provisions and configures it as a general guarantee to be invoked in the European legal area whenever a criminal judgment has been passed on the same fact and on the same person.
Its inclusion in the Charter of Nice, among the fundamental rights of the European Union, can ensure it the value of a general principle within the European law of the Union, placing itself for national judges as a binding rule and functional to the realization of a European judicial area in which the risk of conflicts of jurisdiction is reduced. This is the effect of the recognition of the binding value of the Charter of Fundamental Rights (art. 6 par. 1 of the TEU).
It is useful to recall, at this point, that the Constitutional Court has long considered ne bis in idem as a principle of legal civilization, enhancing its role as a right of the individual and overcoming its original dimension related to the objective value of the judgment (most recently see, Corte cost. n. 200 of 2015; moreover, Corte cost., n. 284 of 2003; n. 115 of 1987; n. 6 of 1976; n. 1 of 1973), moreover in some sentences has highlighted the "expansive force" of this right, which is marked by the nature of personal "guarantee" (Corte cost,).
However, the general nature of the affirmations relating to fundamental rights referred to in the Charter is limited by art. 51, which states that the Nice Charter applies to member states exclusively in the implementation of Union law, a provision that limits the scope of application of the Charter itself to matters that fall within the competence of the European Union. It must be considered, sharing the conclusions reached by part of the doctrine, that art. 51 can be interpreted in an extensive way, recognizing that it "imposes the respect of fundamental rights in all those cases in which the domestic legislation, although not constituting the implementation of European legislation, is nevertheless to affect an area of competence of the Union or in areas already governed by Union law".
Through this extensive reading of the provision in question, the Charter, with the reference to fundamental rights, would be applied in cases where even only "an element of connection can be found, even if not in terms of precise implementation or execution of EU law". The European Commission has also argued that, for the Charter to be effective in the Member States' legal systems, it is sufficient that the situation examined by the national court "has an element of connection with Union law" (Communication of 19 October 2010).
But, above all, the European jurisprudence moves in this direction. Although in a first phase the Court of Justice has favored an attitude aimed at circumscribing the scope of application of fundamental rights, limiting its scope to European Union law and national law arising under European law, in recent times there is a tendency to expand the concept of implementation of Union law referred to in Article 51 of the Charter, as pointed out by the most attentive doctrine. The Court of Justice has considered as implementation "any national legislation intended even simply to affect areas regulated by the above-mentioned EU sources", specifying "that the general principles of the European Union are binding on the member states when they transpose obligations arising from EU law (...) but also when they adopt measures derogating from those obligations", so that "all national rules capable of entering into the field of application of EU law are subject to the scrutiny of those principles" (cf, Therefore, on the basis of what has been defined as a natural evolution of the jurisprudence of the Court of Justice, it must be recognized that in the presence of an expansive concept of the notion of "implementing rules" of EU law, the scope of application of fundamental rights contained in the Charter tends to be broader.
2.3. In the context of the defined area of application of the fundamental rights provided for in the Nice Charter, it must be considered that the principle of ne bis in idem referred to in art. 50 must be fully recognized in our domestic system, in the sense that the Italian judge must implement it through the recognition of the sentences issued by the judges belonging to the member states of the Union. In essence, in the European context, any judgment issued by a member state must be valid as a judgment of each individual state, on the assumption that these are systems based on respect for human rights and defensive guarantees that constitute the core of due process. The national judge is also a judge of the European Union and as such is obliged to apply the principles and fundamental rights that are part of the constitutional structure of the Union, which is also based on the idea of a "community of rights" (Grundrechtsgemeinschaft). In fact, it is up to the national judge, who has to deal with the integrated system of constitutional, community and international sources as well as with the legislation of the Union, to ensure the constant protection of fundamental rights and the fundamental right of ne bis in idem which, as it is placed for the protection of the individual, must be ensured and guaranteed to anyone who has already been judged by a court of a member state of the European Union, regardless, of course, of European citizenship.
2.4. It follows, returning to the case at hand, that the Court of Appeal of Venice should have taken into consideration the judgment issued by the German judicial authority against R. and should have recognized the existence of the ne bis in idem, which the extradited person timely objected to. It does not matter that R. has already been judged by a third country with respect to the extradition procedure requested by Turkey, since what matters is the fact that the judgment was issued by a member state of the European Union, within which the right not to be judged for the second time must be enforced by any national judge belonging to the European Union. Nor can it be said that the fundamental right of ne bis in idem affirmed by the Charter of Nice cannot be ensured because it is outside the implementation of the Community matter, since the element of connection with the law of the Union - according to the interpretation quoted above, in favor of an extension of the concept of "implementation of the law of the Union" - can be found in the fact that extradition was requested for the crime of drug trafficking, a matter which, as is known, is expressly provided for by art. 83, par. 1, of the Treaty on the Functioning of the European Union.
3 . The Court of Appeal of Venice then held that the conditions which could have led to the rejection of the extradition request pursuant to art. 705 c.p.p., paragraph 2, letter a), did not exist. paragraph 2, lett. a) and c), excluding that the extradited person runs the real risk of suffering inhuman treatment in Turkish prisons, in violation of fundamental human rights.
The judges considered inadequate the documentation extracted from the internet and produced by the defense to demonstrate the difficult prison situation and, in any case, have argued that there are not enough concrete elements to believe that the prison situation in Turkey is inhuman or to state that torture is applied in that country.
These are considerations that cannot be shared, first of all in terms of method.
3.1. In some cases, this Court has ruled out the possibility that the decision to refuse extradition, as per art. 705 c.p.p., paragraph 2, could be based solely on the fact that the extradition of a prisoner is inhumane. paragraph 2, could be based exclusively on the documentation taken from the website of Amnesty International, but such statements were certainly not referred to the source of information, but rather to the type of information provided, which showed only occasional episodes of persecution or discrimination, such as not to be considered as peculiar to a system (Sez. 6, no. 30864 of 08/04/2014, Lytuynuk, Rv. 260055; Sez. 6, no. 2657 of 20/12/2013, Cobelean, Rv. 257852; Sez. 6, no. 15626 of 05/02/2008, Usurelu, Rv. 239672).
In other words, the jurisprudence - to which the appealed sentence seems to refer - has never considered unsuitable in an absolute sense the documentation as extracted from the internet, but has always required that the documentation attached by the interested party, as evidence of the existence of situations in which the fundamental rights of the person are violated, is reliable and finds an alarming situation referable to a normative or factual choice of the requesting State, regardless of contingencies extraneous to institutional guidelines and in respect of which it is still possible to activate a legal protection (Sez. In the case in question, the territorial court seems to rely solely on the unsuitability of the source (internet), considered objectively unreliable, omitting any investigation and consideration of the reliability of the information contained in the documentation produced by the defense, also overlooking that although the extradited person has a burden of allegation, however, once fulfilled, it is up to the judge to verify the reliability of the information provided.
In short, it is the duty of the judge to proceed ex officio to the verification of the conditions preventing extradition, without prejudice to the burden of the interested party to indicate useful elements for such verification through an allegation that, of course, should not be based on mere conjecture.
Moreover, similar principles have been expressed by the Court of Justice of Luxembourg which, in relation to the European arrest warrant, has held that it is up to the judicial authority to assess whether there is a risk of inhuman treatment, based on objective, reliable, precise and up-to-date elements (Court of Justice, 05/04/2016, Aaranyousi). The Court of Appeal of Venice has, however, omitted any serious assessment regarding the content of the attached documentation, limiting itself, erroneously, to a judgment of unsuitability of the source, without even taking into account that it was news taken from a report of Amnesty International, i.e. a non-governmental organization whose reliability is generally recognized at the international level. This Court of Cassation, precisely in an extradition case concerning Turkey, has affirmed that the decision as to the existence of human rights violations in the requesting country can also be affirmed on the basis of documents and reports drawn up by non-governmental organizations, such as Amnesty International or Human Rights Watch, since these are organizations that are considered reliable at an international level (see, Sez. 6, no. 32685 of 08/07/2010, Seven, Rv. 248002). The European Court of Human Rights also considers the reports of the above-mentioned organizations to be fully usable as sources of documentation of situations of violation of human rights (EDU Court, February 28, 2008, Saadi v. Italy).
3.2. Well, from the documentation of Amnesty International produced by the defense there are reported cases of torture and ill-treatment of detainees, as well as an excessive use of force by the police, a situation that is referred to in various reports on human rights from 2008 to 2016 and that therefore allows to consider that this is a widespread situation and not episodic, systemic or otherwise generalized, which eventually leads to serious violations of human rights and affects the treatment in prisons.
On the other hand, in support of this documentation, R.'s defense also referred to the report of a delegation of Italian jurists and lawyers, representing the Criminal Chamber, who noted an absolutely worrying picture for the respect of human rights, a circumstance already emerged some time ago as Turkey has suffered the highest number of convictions in Europe for failure to respect human rights.
This situation, already relevant in itself under art. 705 c.c.p.. paragraph 2, for the purposes of deciding on the extradition request - so much so that in the past this Court of Cassation has already had the opportunity to confirm a decision against the extradition requested by Turkey (Sez. 6, no. 32685 of 08/07/2010, Seven) - was further aggravated after the events of the attempted coup d'état of 15 July 2016, following which the Government of Turkey, on 21 July 2016, by means of an official statement to the Council of Europe, declared its intention to avail itself of the derogation provided for in Article 15 of the Convention for the Protection of Human Rights, to which it accedes as a Contracting Party. As a result of the use of the derogation provided for by the aforementioned art. 15, with the consequent partial suspension of the Convention, today a series of defensive rights of the accused in criminal proceedings are drastically limited, with a strong increase in the powers of the police (significant is the provision of police custody for up to thirty days, without judicial review). Moreover, from the documentation attached to the defense brief, filed on November 3, 2016, we learn that recently, with a decision of September 22, 2016, the Court of Appeal of Schleswig-Holstein (Germany) refused an extradition requested by Turkey, justifying this refusal precisely with reference to the situation that occurred after the declaration of "suspension" of the Convention. The German Court, on the basis of an official communication of the Ministry of Foreign Affairs, refused the extradition in consideration of the violation of articles 3 and 6 of the European Convention on Human Rights, after having taken note of the limitations provided for in Turkey to the right of defense, with the provision of substitution of the defender without the consent of the accused by the Public Prosecutor's Office and with the limitations to the right of the accused to be present in the hearing, as well as with the worsening of the situation of the places of detention, unsuitable and overcrowded. The College believes that it can take into consideration the judgment produced, considering that jurisdictions are not "closed places within their own systems", but are conditioned by the experiences of other systems, especially if they are experiences that take place within the European legal area. These are conditions that are also reflected in the further documentation attached by the defense and, in particular, in the note of the Italian section of Amnesty International of July 24, 2016, in which general cases of arbitrary detention, violation of the rules of due process and torture practices carried out against detainees are highlighted. Moreover, as further evidence of the crisis situation of the entire Turkish judicial system, there are reports in the national and international press, of common knowledge, which document the dismissal and suspension from office of thousands of magistrates (about 2. 700) by the High Council of Judges and Prosecutors, chaired by the Minister of Justice, a situation so worrying that it has determined the Superior Council of the Magistracy to suspend all cooperation with the Superior Council of Judges and Prosecutors of Turkey because of the lack of respect for the independence of the judiciary of that country, as well as the violation of the rights of due process and fundamental rights affirmed in the European Convention on Human Rights (in the same way the Italian Superior School of the Magistracy has interrupted cooperation in the training of magistrates with Turkey).
3.3. Therefore, even considering the contingent nature of the situation described above, i.e. linked to the state of emergency declared in Turkey, it must be acknowledged that R.'s surrender would expose him to the concrete risk of being subjected to a criminal trial with severe limitations on the rights of defense, in violation of the principles of due process, as stated in the Convention on Human Rights and reaffirmed by the jurisprudence of the Strasbourg Court, as well as being subjected to inhuman and degrading treatment in the prisons of that country, in violation of the fundamental rights of the person.
4. In conclusion, in accepting the proposed pleas, the appealed sentence must be annulled without referral, since the existence of the conditions for the extradition requested by Turkey must be excluded.
Consequently, the immediate release of R.A. must be ordered, unless detained for other reasons.
The Chancellery will take care of the fulfilments as per art. 626 c.p.p. and art. 203 dispositions. attested c.p.p..
P.Q.M.
Annul the contested sentence without referral since the conditions for the requested extradition do not exist and order the immediate release of R.A. unless detained for another reason.
Send to the Clerk of the Court for the fulfilment of the obligations set forth in art. 626 of the Code of Criminal Procedure and art. 203 of the Code of Criminal Procedure.
Thus decided in Rome, on November 15, 2016.
Deposited at the Clerk's Office on December 21, 2016.