Extradition to Ukraine for common crime is prevented by detention conditions and the impossibility - due to the war - of a fair trial, given that since Ukraine has exercised its right to derogate from obligations under treaties it has ratified, particularly obligations under Articles 5, 6, 8, and 13 of the European Convention on Human Rights, and the Ukrainian State Attorney General has drawn up a list of derogations from fundamental rights arising from martial law.
(automatic non official machine translation)
COURT OF APPEAL OF REGGIO CALABRIA
FIRST CRIMINAL SECTION
No. 14/2023 R.G. (Extr.)
The Court of Appeals, sitting in chambers in the persons of Mr. and Mrs. Magistrates (**) delivered the following
JUDGMENT
In extradition proceedings for foreign countries against OV, generalized in deeds, recipient of arrest warrant issued on 31.l 0.2022 by the Ukrainian judicial authority for the crime of road murder.
THE TRIAL
On 19.11.2023, officers on duty at ]a Police Headquarters in Reggio Calabria took the defendant into custody, in execution of the aforementioned international arrest warrant.
This Court, in an order issued on November 20, 2023, validated the arrest by ordering the precautionary measure of custody in prison, which was maintained as a result of the timely request by the Ministry of Justice pursuant to Article 716, paragraph 4, Code of Criminal Procedure.
At the hearing on November 22, 2023, heard before this Court, the prefect denied consent to extradition.
Following a timely extradition request advanced by the Ukrainian judicial authority, the General Prosecutor's Office formulated in an indictment a request for a judgment in favor of granting it.
On 9.2.2024 the Defense filed a defense brief with annexes, requesting the rejection of the extradition request.
At today's hearing, the Prosecutor and the Defense concluded in the tennines indicated in the minutes, in a manner consistent with the above conclusions.
GROUNDS FOR THE DECISION
Finds the Court that, in light of the application and attached documents, the conditions for a favorable extradition ruling do not exist.
The extradition request, pursuant to the Paris European Convention on Extradition of December 13, 1957, was : made for precautionary purposes, given that the extradite is under investigation in the requesting state for the crime of road murder.
It should be noted that the EDU Court, in its January 30, 2020 judgment (Sukachov v. Ukraine, Application No. 14057/17), which became final on May 30, 2020, issued a pilot judgment against Ukraine, having found a structural and persistent problem in that state's prison system.
The Court also found that, beyond the pending applicationsj, according to a number of international and domestic reports, many people were detained in that state in overcrowded and otherwise inadequate coonditions, without having effective remedies that would allow them to achieve an improvement in their situation; that the Committee of Ministers recognized the structural nature of the problem of detention conditions in Ukraine, adopting, in December 2018 an interim resolution, in which ' again emphasized the structural nature of the problem and that in previous decisions the same Committee repeatedly called on the authorities and to take decisive action to establish preventive and compensatory remedies to address this problem; that the Committee for the Prevention of Torture has repeatedly acknowledged the persistent nature of the problems of prison conditions in Ukraine and that, in its most recent report on Ukraine (2018), it welcomed the ongoing reform of the prison system and the measures taken to reduce overcrowding, but pointed out that the reform had awto no impact on the situation of people held in pre-trial detention and urged the authorities to continue to reduce their numbers (it noted in particular that the old standard of 2.5 square meters of living space per inmate in first detention prisons was still in effect; that the material conditions of detention in the prisons it visited were poor, and had even worsened in some of them since its previous visits).
The EDU Court, noting that, although some steps had been taken, no concrete progress had been made, granted All-Ukraine a period of 18 months from the finality of the judgment pronounced against it for the resolution. of the issues found.
In light of the outbreak of the Russian-Ukrainian conflict, it is reasonable to assume that the problem of prison conditions in Ukraine still exists.
But there is more.
As a result of the aforementioned conflict, Ukraine has exercised its right to derogate from its obligations under treaties it has ratified, in particular its obligations under Articles 5, 6, 8 and 13 of the European Convention on Human Rights, and that the Ukrainian State Prosecutor General has drawn up a list of derogations from fundamental rights arising from martial law.
More specifically, restrictions on the right to a fair trial and the rights of the defense have led to an amendment to Article 615 of the Code of Criminal Procedure, which now allows cases of detention without a decision of the investigating judge or court, but by an "authorized official," as well as cases of suspension, until the end of martial law, of the investigation, based on a reasoned decision of the prosecutor, who is then required to rule on the extension of pre-trial detention.
It follows that the pre-trial detention of today's extradite will depend on an "authorized official" and its extension on the investigating authority depending on the duration of martial law and war, these restrictions being applicable to the entire territory of Ukraine and not only the part occupied by Russian military forces.
It should be noted, altresl, that the destruction of Ukrainian court buildings and the fact that the participants in court proceedings are victims of hostilities depose the impossibility of ensuring the conduct of a trial in a reasonable time, also in light of the recommendations issued by the Council of Judges of Ukraine on the activity of courts during martial law, which advocate postponing the consideration of non-urgent cases.
It follows that the requesting state is unable to ensure that the defendant is tried by a court that offers basic procedural guarantees and protection of defense rights.
Therefore, it is necessary to reject the interposed request for extradition, given that the defendant will be subjected to proceedings that do not assìcura ii respect for fundamental rights and there is reason to believe that he will be subjected to acts that constitute a violation of one of the fundamental rights of the person.
P.Q.M.
Rejects the extradition request advanced against OV, revoking the pre-trial detention measure ordered against him and ordering his release.
Sends to the Chancery for the fulfillments of jurisdiction, as well as for the translation of this judgment into Ukrainian.
Reggio Calabria, February 15, 2024