EAW to Greece has to be rejected despite supplementary information regarding detention conditions.
The manner in which detention is carried out must be compatible with respect for human dignity and must not subject the person concerned to a state of discouragement or to an ordeal of an intensity exceeding the level of suffering already unavoidably deriving from the restriction, having regard also to the protection of the detainee's health and well-being. which must be adequately ensured.
(automatic translation)
COURT OF APPEAL OF BOLOGNA
SECTION I CRIMINAL
judgment 32/2022 of 20 october 2022
WHEREAS:
on 7 July 2022 at 1.30 a.m., personnel of the Border Police of the Bologna State Police arrested RD born on ***, residing in **, domiciled in **, under European Arrest Warrant No. 11/22 issued on 17 June 22 by the Greek Judicial Authority - investigating magistrate at the Orestiada Criminal Court. Judicial Authority of GREECE - investigating judge at the Criminal Court of Orestiada Prosecutor's Office at the Court of Appeals of Thrace - for the crime of abduction of minors under the age of 14 years, committed in conspiracy with the mother of the minors **;
at the hearing for the identification and validation of the arrest, held on 8.7.22 the same, defended by attorney Nicola Canestrini, refused to consent to be handed over to the requesting authority and the arrest was validated. with the application of the precautionary measure of the obligation to present himself to the Public Prosecutor's Office, later revoked by order made at the collegiate hearing of 20.7.2022;
by order dated 20.7.12, it was ordered to obtain from the Greek judicial authority specific information on the
A) the characteristics of the detention regime to which the defendant will be subjected. the various institutions to which he will be assigned. the likely developments in the proceedings and the detention status of the arrested person before and during the trial and the execution of the sentence which. over time. will affect him;
B) as well as on the prison regime which will be reserved for him. as well as: what will be the surface area of the cell to which the applicant will be assigned. whether he will be assigned to so-called 'open' or 'semi-open' detention regimes. which has operational qualities of greater freedom of movement or to 'closed' detention regimes: what will be the hygienic and sanitary conditions
of the institution. the type of educational welfare activities from which the prisoners benefit. with a description that must be 'individualised' with reference to R D;
- for the facts which are the subject of the aforementioned European Arrest Warrant occurred on 20.4.2022 R filed a "self-report"" for international child abduction to the Public Prosecutor's Office at the Court of Bologna;
- on 28.9.22 this Office received the information requested from the Judicial Authority of Greece - which confirmed the validity of the arrest warrant under assessment against R and reported on the detention conditions in the Komotini Prison Institute (see note of the Prosecutor of the Court of Appeal of Thrace dated 19.9.22- and note of the Secretary General of the Anti-Crime Police of Athens dated 9.11.21 );
- at today's hearing, the public prosecutor maintained the laconicity of the Greek State authority's replies to the requests made by this court to the requesting authority concerning the connection between the present proceedings and the proceedings instituted against ***, in respect of which Greece has withdrawn its request for his surrender. **/22 dott. * Public Prosecutor's Office at the Court of Bologna) and requested that the request for surrender be rejected;
- at today's hearing the defence counsel confirmed his opposition to the request for the surrender of Mr R by the Greek judicial authority - which had already been formalised at the validation hearing and at the subsequent collegial hearings - arguing that there was a risk that the person surrendered to Greece would be subjected to inhuman and degrading treatment in view of the known conditions of prisons in Greece (as per the documentation already produced at the hearing of S.7 .2022 and in a memorandum lodged at today's hearing and at the hearing of 22.9.22 (see in particular new CPT report of 2.9.22 on the conditions in prisons in the Greek state and memorandum lodged at today's hearing ) and also concurred with the PG's deductions.
Held that
it is necessary to make an urgent decision on the request for execution pursuant to Article 17 of Law No. 69 of 22 April 2005 as amended by Legislative Decree No. 10 of 2 February 2021 ;
pursuant to Article 18 bis paragraph I letter b) of Law No. 69 of 22 April 2005 as amended by Law No. 117 of 4 October 2019, the fact that criminal proceedings are already pending before the Public Prosecutor's Office of Bologna against the R for facts covered by the European arrest warrant (as ascertained by the Public Prosecutor and reported at the hearing) constitutes an optional ground for refusing to surrender (see Criminal Court of Cassation No. 2959 of 22.1.2020)
in the light of the documentation obtained from the Greek authorities in relation to the questions put by this Court, uncertainty remains as to the compatibility of the manner in which detention in the requesting country is carried out with respect for human dignity;
The following should be recalled on this point:
a) the well-established case-law of the European Court of Human Rights, starting with the judgment in Sulejmanovic v. Italy, passing through the fundamental Torreggiani v. Italy, to arrive at the more specific Kargakis v. Greece of 1-L 1.2021:
b) the concept of violation of Art. 3 of the European Convention on Human Rights: the notion of inhuman and degrading detention can be found in the case-law of the Strasbourg Court, according to which the modalities of execution of the detention must be compatible with respect for human dignity and must not subject the person concerned to a state of discomfort or to an ordeal of an intensity exceeding the level of suffering already inevitably resulting from the restriction, also having regard to the protection of the health and well-being of the detainee, which must be adequately ensured:
(c) according to the ECHR, where prison overcrowding is severe alone is sufficient to constitute a violation of Article 3 of the Convention;
the conditions in Greek prisons are affected by serious problems of overcrowding (according to the Council of Europe's Committee for the Prevention of Torture with a rate of 107% as of 1 April 20 I 9: in the Committee's visit in 20 I 9 the rate of imprisonment was 135%; the state of serious overcrowding was confirmed in the CPT's latest report of 2. 9.21 on the conditions in prison establishments in the Greek state) and that the Council of Europe itself had asked Greece in 2019 to undertake a legislative policy plan to reduce the number of inmates in prison facilities ( see Court of Cassation judgement of 20.7.2021 whereby the judgement of 26.5.2021 of this Court of Appeal, which had ordered the surrender of a person attacked by EAW to the requesting Judicial Authority, was annulled with referral to another section where it is stated that even the material conditions of detention are deplorable. favouring more affluent detainees and not adequately monitoring the health conditions of the detainees);
in a nutshell. with regard to the Komotini penitentiary: where a potential of 162 detainees is envisaged. the number of detainees turns out to be 313. with an average of 300 detainees: detention cells of sq. 9 designed to hold up to five persons and rooms with a surface area of between 53 and 56 square metres where up to 33 detainees can be housed, with a space available per head, therefore. of less than 2 square metres; then there are cells with a surface area of between 2 and 17 metres where between two and eight detainees can be held. with a space for each detainee of just over two square metres per head. not counting the presence of furnishings;
therefore, the Court considers that the surrender of R to the applicant state of Greece must be refused: it should be recalled the well-established case law of the European Court of Human Rights, starting from the judgment Sulejmanovic v. Italy, passing through the fundamental Torreggiani v. Italy, to arrive at the more specific Kargakis v. Greece of 14.1.2021;
in fact, the notion of violation of Article 3 of the European Convention on Human Rights, the notion of inhuman and degrading detention can be found in the case law of the Strasbourg Court, according to which the modalities of execution of detention must be compatible with respect for human dignity and must not subject the person concerned to a state of discomfort or to an ordeal of an intensity exceeding the level of suffering already inevitably resulting from the restriction, also having regard to the protection of the health and well-being of the detainee. which must be adequately ensured;
again, according to the European Court of Human Rights, where prison overcrowding is severe. alone is sufficient to constitute a violation of Article 3 of the Convention: in particular. where the space per person per cell is less than 3 square metres, the violation is established, whereas, where the space allowed is between 3 and 4 square metres, consideration must be given to other significant aspects concerning the possibility of using reserved toilets. available ventilation, access to natural light and air. quality of heating and respect for basic sanitary requirements;
as pointed out above, the prisoner would be confined - while awaiting trial - in penitentiary institutions in conditions of serious overcrowding. since the prisoners have a per capita space in the cell of less than 3 rnq;
this circumstance is not contradicted by the note from the Secretary-General for Anti-Crime Policy in Athens, sent to the Directorate-General for Anti-Crime Policy on 9.11.21. where it is stated that, in the event of overcrowding The content of the note - identically sent to the Directorate with reference to a practice to be implemented "in general" in relation to all "cases of European arrest warrant" - is contradicted in the present case, with reference to the prison in Komotini to which Mr R. is to be transferred, as can be seen from the above-mentioned note of the Prosecutor of the Court of Appeal of Thrace dated 19.9.22;
consequently. the surrender of R D to the Greek judicial authorities must be refused. because of the well-founded risk that he will be subjected. for a long time. in the requesting state. to inhuman and degrading treatment within the meaning of Article 3 of the E.E.D.U.
for this reasons
Having regard to Articles 17 and 18 bis L.69/2005 as amended :
DECLARES
that the conditions for the surrender to the judicial authorities of Greece of R D born on *** and residing in Istanbul (Turkey) *** under European arrest warrant No 11/22 issued on 17.6.22 by the judicial authorities of GREECE are NOT met.
Bologna 20.10.22