In the minimum individual space of three square meters, to be ensured for each prisoner, in order for the state not to incur a violation of the prohibition of inhuman or degrading treatment, established by Article 3 of the EDU Convention, as interpreted by the case law of the EDU Court, regard must be had to the area that ensures normal movement in the cell and, therefore, furnishings that tend to be fixed to the ground, including, for example, bunk beds, must be deducted, however. The so-called "compensatory factors," consisting of the short duration of detention, dignified prison conditions, and sufficient freedom of movement outside the cell through the performance of appropriate activities, if jointly recurring, may make it possible to overcome the presumption of violation of Art. 3 of the ECHR, arising from the availability, in the collective cell, of a minimum space of less than three square meters while, in the case of the availability of an individual space between three and four square meters, the aforementioned compensatory factors contribute, together with others of a negative nature, to the unitary assessment of the overall conditions of detention.
(unofficial machine translation)
Trento Court of Appeals
judgment 2/23 EAW
25/01/2023
The Trento Court of Appeals - Criminal Section- in the persons of magistrates:
Dr. Gabriele PROTOMASTRO President-Rapporteur
Dr. Ettore DI FAZIO Councilor
Dr. Aldo GIANCOTTI Councilor
Pronounced the following:
S E N T E N C E
(with reasoning delivered immediately to Article 17 Law No. 69 of April 22, 2005)
By judgment of September 27, 2022, The Court of Appeals of Trento - Bolzano detached section - ordered the surrender to the Greek judicial authority of XXX, born in XXX, on XXX, in execution of the European Arrest Warrant issued by the Court of Appeals of Crete, Felonies Department, on June 12, 2013, case number, Schengen ID (XXX), for the execution of the conviction issued on June 8, 2012 for the crime of theft of religious icons, provided for and punished by Articles. 1, 14, 26 par. 1a, 372 par. 1a und 374 of the Greek Penal Code, committed on October 12, 2004, for which he had been sentenced to a term of imprisonment of SIX years and has yet to serve a term of imprisonment of FIVE years, eleven months and twenty-seven days.
In a ruling dated Nov. 16, 2022, the Sixth Criminal Section of the Supreme Court annulled the aforementioned sentence, with referral for a new trial to the Trento Court of Appeals.
The Supreme Court noted how well-founded was the ground of appeal concerning the failure to state reasons for the contested judgment regarding the risk of inhuman and degrading treatment with reference to the overcrowded conditions in Greek prisons.
Following this decision, the Court of Appeal of Trent, by order dated December 7, 2022, requested the Judicial Authority of Greece, through the Ministry of Justice, to provide documentation, i.e. detailed information, regarding the: the situation of the prison of "Chania" (where the surrendered would be imprisoned) and, in particular, the indication of the criteria for establishing the minimum space available to each detainee, in consideration of the presence of the other imprisoned subjects; the detention regime to which the surrendered would be subjected (open or semi-open); the timetables for carrying out activities outside the cells, the period of detention to be spent in such regime, according to the criteria set forth by the ECHR, Grand Chamber, October 20, 2016, Mursic v. Croatia, no. 7334/2013; to the mechanisms for monitoring the actual conditions of detention of the surrenderer.
On January 9, 2023, the Ministry of Justice transmitted the documentation sent to the Greek Authorities, ritually translated, in which it noted the following.
The "Chania" penitentiary has 5 wings, each of which can accommodate up to 120 people (total capacity 600 inmates).
Each cell, measuring 12 sq. m. (not including the bathroom area, which measures 1.44 sq. m.), can accommodate up to three people.
The "Chania" Penitentiary is part of the General Penitentiaries (as determined by Art. 19 of Law 2776/1999, replaced by Art. 20 pr. 1 of Law 4985/2022), for which the organization of inmates' time is regulated by Art. 8 of DM 58819/7-4-2033 (Internal Regulations for the Operation of General Penitentiaries of Type A-B).
The time for sports, work and participation in educational and leisure programs is from 8.00 a.m. to 12.00 p.m. and from 3.00 p.m. until half an hour before sunset. Afternoon hours for rest are from 12.30 to 3 p.m. and night hours are from 8.30 p.m. (winter period) or 9 p.m. (summer period) until 7.30 a.m.
In each wing of the Penitentiary there is a guard, who watches the surveillance cameras, and part of the spaces where he has visual contact, and the cameras are also followed remotely (central surveillance guard).
As early as September 20, 2022, the Greek authority had represented how the two wings of the "Chania" Penitentiary had an indoor area and an outdoor courtyard; how the surrenderer was given a choice of the library area, the second-chance school, the therapy center, and the gymnasium area; how the bathroom and shower had hot water how each cell had a window and a heater; how the prison had electronic recording, a social service, a secretary's office, a doctor's office, an infirmary, an accounting office, a canteen, a supermarket, and a kitchen; how three meals a day were available; and how there was a hospital about five kilometers away for more serious problems.
That being said, it must be considered how, the United Sections of the Supreme Court, with particular reference to the assessment of the minimum individual space of three square meters, to be ensured to each detainee, in order for the State not to incur the violation of the prohibition of inhuman or degrading treatment, established by Article 3 of the EDU Convention, as interpreted by the case law of the EDU Court, one must have regard to the surface area that ensures normal movement in the cell and, therefore, furnishings that tend to be fixed to the ground, including, for example, bunk beds, must be deducted.
It was added how the so-called "compensatory factors," consisting of the short duration of detention, decent prison conditions, and sufficient freedom of movement outside the cell through the performance of appropriate activities, if jointly recurring, may enable the presumption of violation of Art. 3 of the ECHR, arising from the availability, in the collective cell, of a minimum space of less than three square meters while, in the case of the availability of an individual space of between three and four square meters, the aforementioned compensatory factors contribute, together with others of a negative nature, to the unitary assessment of the overall conditions of detention (U.S.S., No. 6551 of July 24, 2020, Ministry of Justice, Rv. 280433).
In the present case, the information received, through the Ministry of Justice, from the Greek authorities shows how the penitentiary, where the consignee is supposed to be imprisoned, has five wings each of which can accommodate up to 120 people (total capacity 600 inmates).
Each cell, measuring 12 square meters (not including the bathroom area, which measures 1.44sqm) can accommodate up to three people; the institution is among those for which the organization of inmates' time is regulated by Art. 8 M.D. 58819/7-4-2003 (Greek regulations).
The time for sports, work and participation in educational and leisure programs is from 8 a.m. to noon and from 3 p.m. until half an hour before sunset.
Afternoon hours for rest are from 12:30 to 3:00 p.m. and night hours are from 8:30 p.m. (winter period) or 9:00 p.m. (summer period) until 7:30 a.m;
In each wing of the Penitentiary there is a guard, who watches the surveillance cameras, and part of the spaces, where he has visual contact, and the cameras are also followed remotely.
The Court finds how such information is not found sufficient to prevent XXX from being subjected to inhuman and degrading treatment in violation of Article 2 of L. 22.04.05 No. 69, as well as Article 3 of the European Convention on Human Rights.
In fact, if one subtracts from the cell size of 12 square meters the 1.44 square meter area of the bathroom, one obtains a space of 10.56 square meters, which, divided by three, makes 3.52 square meters.
To this dimension, must be (according to the principle established by the jurisprudence of legitimacy, and referred to above) then deducted the space occupied by furniture anchored to the ground ( not indicated in the present case), such as beds.
Ultimately, the space available for each individual inmate appears to be well under 3 sq. m.
Moreover, it is not specified whether the detention regime is open or semi-open, nor what are the concrete possibilities of access to areas outside the cell.
Therefore, in application of the principles established by the ruling ( recalled by the Supreme Court in its judgment annulling the judgment of the Bolzano branch) Mursic v. Croatia of the Grand Chamber of the EDU Court of October 20, 2016, in the present case there is a presumption of violation of Art. 3 of the Convention (§ 124), given the absence of so-called compensatory factors (§ 130-135), such as the presence of natural light and air in the cell, the adequacy of ventilation and temperature, the possibility of using the toilet in private, and compliance with general sanitary requirements.
In the present case, the short duration of the possible imprisonment cannot be noted as a compensatory factor, since the remaining sentence to be served is five years, eleven months and twenty-seven days.
In the present case, it should be noted that there are also doubts with respect to the recreational activities referred to in the information: it should be pointed out in this regard that the CPT's report on Greek penitentiary institutions dated September 2, 2022, represents how despite the legal provisions governing the right of all prisoners to educational and vocational training activities, work, organized physical activities, cultural and recreational activities, the activities offered remain totally insufficient for the number of prisoners.
Also worth mentioning is the reference to the presence of a guard in each wing of the penitentiary, who watches the cameras. In fact, each wing houses up to 120 people; therefore, surveillance is entrusted (remotely) to one person for as many as 120 inmates. Moreover, this figure is in line with what has already been pointed out several times in international sources: the Hellenic penitentiary institutions are under-staffed, a fact that - inevitably - results in episodes of violence that are difficult to control.
Therefore, it is noted that there is a real risk that XXX may suffer inhuman and degrading treatment in the country of issuance of the EAW, which is a reason that prevents the surrender of the subject, according to the provisions of Article 2 of L.69/2005, as amended by Legislative Decree 10/2021. 1.
The refusal of the requested surrender and the revocation of the precautionary measure in place follows.
FOR THESE REASONS
Having regard to Law No. 69 of April 22, 2005, as amended, Law No. 334 of July 25, 1998, Article 735 of the Code of Criminal Procedure, and Law No. 241/2006;
Judging on remand following Supreme Court of Cassation Decision No. 1610/2022 of November 16, 2022, and within the limits of the ordered annulment;
Refuses - time being - the surrender of XXX, born in XXX, on XXX, requested under the European Arrest Warrant issued by the Court of Appeal of Crete for the execution of the conviction issued on June 8, 2012 for the crime of theft of religious icons, committed on October 12, 2004.
To that effect, revoke the pre-trial detention measure still in place against XXX and order his immediate release, if not detained for another cause.
From this judgment shall be read at the hearing, which reading shall be equivalent to service on the parties, even if not present, who shall be entitled to obtain a copy of this order.
After the lapse of five days from the legal knowledge of this judgment, for the lodging of the appeal provided for in Article 22, Paragraph 1, Law No. 69/2005, the judgment is immediately communicated to the Ministry of Justice, for the measures of competence.