The principle of ne bis in idem constitutes neither principle nor custom of international law: in the European context the principle of ne bis in idem is 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 Additional Protocol No. 7 to the European Convention on Human Rights, signed on November 22, 1984, which in Article 4 enunciates the right not to be tried or punished twice ("no one shall be liable to be prosecuted or convicted criminally by the jurisdiction of the same State for an offence for which he has already been exonerated or sentenced following a final judgment in accordance with the law and criminal procedure of that State").
It is with the Charter of Fundamental Rights of the European Union (the so-called Nice Charter), which, as a result of the Lisbon Treaty has taken on the same legal value as the founding Treaties of the Union, that the principle of ne bis in idem is further consolidated in its European dimension and is configured as a true right for the protection of the accused.
Article 50 of the Charter enunciates the right not to be tried or punished twice for the same offense: "no one shall be liable to be tried or punished twice for an offense for which he or she has already been acquitted or convicted within the Union as a result of a final criminal judgment in accordance with the law."
In its effective conciseness, Article 50 offers a broader form of ne bis in idem protection insofar as it goes beyond the need to refer to the application of the principle in individual covenant provisions and configures it as a general guarantee to be invoked in the European legal space whenever a criminal judgment has been made on the same fact and against the same person.
Its inclusion in the Charter of Nice, among the fundamental rights of the European Union, can assure it the value of a general principle within the European law of the Union, posing itself for national judges as a binding and functional rule for the realization of a European judicial space 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 (Article 6/1 TEU).
SUPREME COURT OF CASSATION
SIXTH CRIMINAL SECTION
JUDGMENT
no. 54467 filed 21-12-2016
On the appeal brought by:
R.A., born on (OMISSIS);
against the judgment of 04/27/2016 issued by the Court of Appeal of Venice;
Having regard to the acts, the judgment appealed and the appeal;
Hearing the report of Counselor Dr. Giorgio Fidelbo;
Hearing of the Public Prosecutor, in the person of Deputy Prosecutor General Dr. Cardia Delia, who concluded by requesting that the appealed judgment be annulled with referral;
Hearing attorneys Massimo Krogh and Nicola Canestrini, the latter a procedural substitute for attorney Gilberto Tommasi, who insisted that the appeal be granted.
In fact
1. By the decision indicated in the epigraph, the Court of Appeal of Venice declared that the conditions were met for granting the extradition request made by the Republic of Turkey against R.A., on the basis of the arrest warrant issued by the Istanbul judicial authority, for the crime of association and illegal drug trafficking, having transported 86 kilograms of heroin from Turkey to Germany. The territorial court, while noting that the extradite had already been tried for the same act in Germany, where he had served the sentence imposed, held, based on Article 9 of the European Convention on Extradition, that the ne bis in idem rule has validity in the context of 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 extradition request from being granted referring to inhuman treatment and prison conditions in Turkey was excluded, considering the documentation produced in this regard by the defense inadequate, because it was extracted from the Internet and in any case insufficient to prove the inhuman condition of the Turkish prison system.
2. Against this decision, lawyers Gilberto Tommasi and Massimo Krogh, R.'s defense counsel, appealed for cassation.
2.1. In their first plea, they allege a defect in reasoning, in that the Court of Appeals did not evaluate, in a complete manner, the elements resulting from the documents and produced by the defense regarding the reasons that would have justified the refusal of extradition under Article 705 of the Code of Criminal Procedure. (2) (a) and (c), reasons related to the fact that for R. the surrender to Turkey would entail the risk of being subjected to a trial without adequate guarantees and suffering inhuman treatment, in violation of the fundamental rights of the person. In this regard, they complain that the territorial court did not take into consideration what was apparent from the record and, in particular: (a) the cooperation given by the extradite to the German judicial authority, with the disclosure of the names of the other participants in the association and the capture of them in Turkey, where it appears that they have also been convicted; (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 deemed insufficient. In any case, it is argued, that the judges would, in any case, have been able to acquire and evaluate elements through information from the press organs.
2.2. In their second plea, they denounce the violation of Article 705 of the Code of Criminal Procedure. , paragraph 1, and L. no. 300 of 1963, art. 9, challenging the contested decision which, while recognizing 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 Appeals failed to take into account that with the 1988 Code of Procedure and the insertion of Article 705, Paragraph 1, a tendential principle was introduced, which is the inspiration for the international legal system, and which 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 Article 50 of the E.U. Charter of Fundamental Rights of Dec. 7, 2000 (Nice Charter) and the 1999 Tampere European Summit, which consider the principle of international ne bis in idem fundamental and define it as an individual right, they argue that it is a general principle, certainly applicable in our domestic legal system in light of Articles 3, 27 and 113 of the Constitution. , Art. 12 preleggi and the same Articles 649 and 705 of the Code of Criminal Procedure, a principle that must be applied within the framework of the European Union, through the full recognition of judgments issued by European courts.
In conclusion, any judgment issued by the judicial authority of an E.U. member state, if final, deploys the same effects as an Italian judgment, also producing the effects proper to ne bis in idem.
2.3. In a subsequent memorandum and with additional grounds, the applicants reiterated the reasons put forward for the appeal, both in relation to the existence of the conditions justifying the refusal of extradition because of the dangers to R.'s safety, on the basis of the documentation received from Germany and Turkey, and in relation to the effects of the principle of ne bis in idem.
2.4. On November 3, 2016, attorney Nicola Canestrini, as a procedural substitute for attorney Tommasi, filed a supplement to the grounds of appeal, with specific reference to Turkey's violation of fundamental rights and the right to a fair trial.
Reasons for the decision
1. Both pleas raised are well-founded.
2. The Court of Appeals, while acknowledging that it is undisputed that R. has already been tried in Germany - with a sentence of seven years' imprisonment by the Cologne District Court, which became enforceable on March 24, 2003 (sentence served) - for the same facts for which extradition is requested, held that Art. 9 of the European Convention on Extradition, which is applicable in this case, limits the principle of ne bis in idem to the case where there is a final judgment rendered against the extradited person in the requested state, but does not cover the hypothesis, which occurs in this case, of a judgment rendered by a third state. The judges recall a precedent of this Court, which applied the same principle precisely with reference to Article 9 cited above, excluding the hypothesis of ne bis in idem in the case of an extradite requested to 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 L. September 30, 1993, no. 388, art. 54, ratifying the 1990 Schengen Convention is recognized as a conventional norm capable of transferring the value of the principle of ne bis in idem from domestic procedural relations to international relations, although it is then ruled out 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, as the third country (Germany), in which the conviction for the same facts that are the subject of the extradition request was handed down, is not only a country that has acceded to Schengen, but more importantly it is a member state of the European Union.
The precedent cited by the judgment under appeal is, therefore, not superimposable on the present case and, indeed, contains a statement that is indicative of a normative development of the ne bis in idem principle in the European context, as was correctly pointed out in R.'s appeal.
2.1. As is well known, the ne bis in idem principle finds its domestic regulation in Article 649 of the Code of Criminal Procedure. but it is not expressly contemplated by the Italian Constitution; however, constitutional jurisprudence traces it back to articles 24 and 111 of the Constitution (Constitutional Court, sent. no. 501 of 2000 and sent. no. 129 of 2008) and it is considered by the Court of Cassation a general principle of the system, functional to the needs of rationality and functionality of the system, a principle from which the judge, pursuant to art. 12 preleggi , paragraph 2, cannot disregard in his interpretative activity (Sez. U, no. 34655 of 28/09/2005, Donati).
2.2. Internationally, the principle under consideration has always found some resistance to being accepted, as it ends up limiting national sovereignty and Article 11 of the Criminal Code itself. The jurisprudence of legitimacy, moving from the observation that ne bis in idem is not a general principle of international law and as such applicable in the domestic legal system, holds 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 Article 11 of the Criminal Code, does not preclude the renewal of the trial. , 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).
In essence, once it has been affirmed that the principle of ne bis in idem constitutes neither principle nor custom of international law, it has been held that when Italian jurisdiction is recognized on the basis of the rules of domestic law ( Articles 6 and 11 of the Criminal Code ), these can recede with respect to international ones, which provide for hypotheses of ne bis in idem, only in the presence of conventions between states, ratified and made enforceable, which bind only the contracting states, within the limits of the agreement reached.
This approach, still valid on the properly international level, deserves to be reconsidered in the European context, where the principle of ne bis in idem finds important and repeated affirmations that, also taking into account the pronouncements of the European Courts, rather qualify it 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 Additional Protocol No. 7 to the European Convention on Human Rights, signed on November 22, 1984, which in Article 4 enunciates the right not to be tried or punished twice ("no one shall be liable to be prosecuted or convicted criminally by the jurisdiction of the same State for an offence for which he has already been exonerated or sentenced 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 judgment is the European Convention on the International Validity of Criminal Judgments, opened for signature in The Hague on May 28, 1970, as well as the European Convention on the European Transmission of Criminal Judgments, 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 the "international effect of the judgment 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 July 26, 1995 on the Financial Interests of the European Communities (Article 7) and the Convention on the fight against corruption involving officials of the European Communities (Article 10).
However, it is with the Convention of June 19, 1990 implementing the Schengen Agreement that the recognition of the ne bis in idem effect is consolidated on a level above the national level, on the assumption of a common and mutual trust among European states, especially after the Convention became part of the acquis communautaire, with the protocol signed in Amsterdam on October 2, 1997. In fact, Article 54 of the Convention, implemented by L. September 30, 1993, No. 388 , stipulates that "a person who has been finally judged in one Contracting Party may not be subjected to criminal proceedings for the same facts in another Contracting Party, provided that, if convicted, the sentence has been served or is actually being served at present or, according to the law of the convicting Contracting Party, may no longer be served."
This gives domestic judgments preclusive effect with regard to the prosecution of the same fact in any other member state, although the operation of the principle is limited by the provision contained in Article 55, in which the Contracting Parties are given the option of excluding from the application of the convention judgments relating to acts committed, even in part, on the national territory or to offenses against the security or essential interests of the Contracting Party or still committed by public officials in violation of their official duties.
In any case, with Article 54 cited above there has been a normative evolution in the consideration of European ne bis in idem, an evolution recognized by case law (cf, Sect. 1, No. 28299 of 03/06/2004, Desiderio, Rv. 228779) and by the doctrine, which has pointed out how with the Schengen Convention the substantial equalization between the final sentences pronounced by the contracting states has been realized, which is justified on the basis of the "substantial homogeneity of the systems of the countries signatory to the agreement as a result of the common adherence to the general principles of Community law and to the framework of substantive and procedural guarantees inherent in the respect for human rights and fundamental freedoms of the European citizen."
On the other hand, the Court of Justice in Luxembourg identifies the prerequisite of the ne bis in idem principle precisely in the existence of a relationship of mutual trust of 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 1990 Convention, by which the Schengen Agreement was implemented and significant progress was made in recognizing the existence of a European judicial area also due to the prominence of the principle in question, jurisprudence 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 covenantal norm transposed by Italy.
It is with the Charter of Fundamental Rights of the European Union (the so-called Nice Charter), which, as a result of the Lisbon Treaty has taken on the same legal value as the founding Treaties of the Union, that the principle of ne bis in idem is further consolidated in its European dimension and is configured as a true right for the protection of the accused.
Article 50 of the Charter enunciates the right not to be tried or punished twice for the same offense: "no one shall be liable to be tried or punished twice for an offense for which he or she has already been acquitted or convicted within the Union as a result of a final criminal judgment in accordance with the law."
In its effective conciseness, Article 50 offers a broader form of ne bis in idem protection insofar as it goes beyond the need to refer to the application of the principle in individual covenant provisions and configures it as a general guarantee to be invoked in the European legal space whenever a criminal judgment has been made on the same fact and against the same person.
Its inclusion in the Charter of Nice, among the fundamental rights of the European Union, can assure it the value of a general principle within the European law of the Union, posing itself for national judges as a binding and functional rule for the realization of a European judicial space 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 (Article 6(1) TEU).
It is useful to recall at this point that the Constitutional Court has long regarded 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, Constitutional Court No. 200 of 2015; also, Constitutional Court, No. 284 of 2003; No. 115 of 1987; No. 6 of 1976; No. 1 of 1973), moreover, in some judgments has highlighted the "expansive force" of this right, which is marked by the nature of a personal "guarantee" (Constitutional Court, No. 230 of 2004; No. 381 of 2006).
However, the general nature of the statements regarding fundamental rights referred to in the Charter suffers a limitation as a result of Article 51, which states that the Nice Charter applies to the Member States exclusively in the implementation of Union law, a provision that circumscribes the scope of application of the Charter itself to matters falling within the areas of competence of the European Union.
It must be held, agreeing with the conclusions reached by part of the doctrine, that Article 51 can be interpreted broadly, recognizing that it "imposes respect for fundamental rights in all those cases in which domestic legislation, while not constituting the implementation of European legislation, nevertheless comes to affect an area of Union competence or areas already governed by Union law."
Through this expansive reading of the provision in question, the Charter, with its reference to fundamental rights, would be applied in cases where even a "connecting element can be found, even if not in terms of the timely implementation or enforcement of Union law." The European Commission has also argued that for the Charter to be effective in member states' legal systems, it is sufficient if the situation examined by the national court "has an element of connection with Union law" (Communication of October 19, 2010).
But more importantly, European jurisprudence is moving in this direction. Although at an early stage the Court of Justice favored an attitude aimed at circumscribing the scope of fundamental rights, limiting its scope to European Union law and national law arising under European law, however, in recent times there is a tendency to dilate the concept of implementation of Union law to which Article 51 of the Charter refers, as pointed out by the most attentive doctrine. The Court of Justice has deemed to be implementation "any national legislation intended even simply to affect areas regulated by the aforementioned EU sources," specifying "that the general principles of the European Union bind 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 liable to enter the field of application of Union law are subject to the scrutiny of those principles" (cf, Court of Justice, 29/05/1997, Kremzow; Court of Justice, 22/11/2005, Mangold; Court of Justice, 19/01/2010, Kucukdeveci; Court of Justice, 26/02/2013, Akerberg Fransson).
Therefore, on the basis of what has been called a natural evolution of the jurisprudence of the Court of Justice, it must be recognized that in the presence of an expansive conception of the notion of "implementing rules" of European Union law, the scope of application of the fundamental rights contained in the Charter tends to be broader.
2.3. Within the defined area of application of the fundamental rights provided for in the Nice Charter, it must be held that the principle of ne bis in idem set forth in Article 50 must find full recognition in our domestic legal system, in the sense that the Italian court must give effect to it through the recognition of the judgments issued by the courts belonging to the member states of the Union. In essence, in the European context, every judgment issued by a member state must be valid as a judgment of each individual state, on the assumption that these are systems founded on respect for human rights and the defensive guarantees that constitute the core of due process. The domestic court is also a court of the European Union and as such is obliged to apply the fundamental principles and rights that are part of the constitutional arrangement of the Union, which is also based on the idea of a "community of rights" (Grundrechtsgemeinschaft).
Indeed, it is up to the national court, which has to deal with the integrated system of constitutional, community and international sources as well as with the Union's legislation, to ensure the constant protection of fundamental rights and the fundamental right of ne bis in idem, which, as it is placed to protect 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 recognized the existence of ne bis in idem, timely objected to by the extradite. It does not matter that it was a third country that had already tried R. 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 Union, within the framework of which the right not to be tried for the second time must be enforced by every national court that is part of the European Union. Nor can it be said that the fundamental right of ne bis in idem affirmed by the Nice Charter cannot be secured because one is outside the implementation of the EU subject matter, since the connecting element with EU law - according to the interpretation above, favoring an extension of the concept of "implementation of EU law" - can be traced in the fact that the extradition was requested for the crime of drug trafficking, a subject matter which, as is well known, is expressly provided for in Art. 83(1) of the Treaty on the Functioning of the European Union.
3 . The Venice Court of Appeals then found that the conditions that could have led to the rejection of the extradition request under Article 705 of the Code of Criminal Procedure were non-existent. (2)(a) and (c), ruling out that the extraditee ran the real risk of suffering inhuman treatment in Turkish prisons, in violation of fundamental human rights.
The judges on the merits found inadequate the documentation extracted from the Internet and produced by the defense to demonstrate the difficult prison situation and, in any case, argued that there is insufficient and concrete evidence to consider that the prison situation in Turkey is inhumane or to claim that torture is applied there.
These are considerations that cannot be shared, first of all in method.
3.1. In a number of cases, this Court has ruled out the possibility that the pronouncement opposing extradition, referred to in Article 705 of the Code of Criminal Procedure. paragraph 2, could be based exclusively on documentation taken from Amnesty International's website, but such statements certainly did not refer to the source of information, but rather to the type of news provided, from which only occasional episodes of persecution or discrimination were evident, such as not to be considered as peculiar to a system (Sez. 6, No. 30864 of 08/04/2014, Lytuynuk, Rv. 260055; Sec. 6, No. 2657 of 20/12/2013, Cobelean, Rv. 257852; Sec. 6, No. 15626 of 05/02/2008, Usurelu, Rv. 239672).
In other words, the jurisprudence - to which the appealed judgment seems to refer - has never held documentation as extracted from the Internet to be unsuitable in an absolute sense, but has always required that the documentation attached by the interested party, as proof of the existence of situations in which the fundamental rights of the person are violated, be reliable and find an alarming situation referable to a normative or factual choice of the requesting state, regardless of contingencies unrelated to institutional guidelines and with respect to which legal protection can still be activated (Sez. 6, no. 10905 of 06/03/2013, Bishara Meged, Rv. 254768).
In the case at hand, the territorial court seems to rely solely on the unsuitability of the source (the Internet), deemed objectively unreliable, omitting any investigation and consideration regarding the reliability of the information contained in the documentation produced by the defense, moreover neglecting that although the extradite has a burden of allegation, however, once fulfilled, it is still up to the judge to verify the reliability of the information provided.
In short, it is the duty of the judge to proceed of his own motion to verify the conditions preventing extradition, without prejudice to the burden of the person concerned to indicate elements useful for such verification through an allegation activity which, obviously, must not be based on mere conjecture.
After all, 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, Aranyousi). The Court of Appeal of Venice, on the other hand, failed to make any serious assessment regarding the content of the attached documentation, limiting itself, erroneously, to a judgment of the unsuitability of the source, without even taking into consideration that it was news taken from a report by Amnesty International, that is, a nongovernmental organization whose reliability is generally recognized internationally.
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 nongovernmental organizations, such as Amnesty International or Human Rights Watch, since these are organizations considered reliable at the international level (see, Sect. 6, No. 32685 of 08/07/2010, Seven, Rv. 248002). The European Court of Human Rights also considers the reports of the cited organizations fully usable as sources of documentation of situations of human rights violations (EDU Court, 02/28/2008, 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 excessive use of force by the police, a situation that is referred to in the various reports on human rights from 2008 until 2016 and that for this reason allows us to consider that this is a widespread and non-episodic situation of a systemic or at least generalized nature, which ends up leading to serious violations of human rights and affects prison treatment.
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 in terms of respect for human rights, a circumstance that had already emerged some time ago as Turkey had the highest number of convictions in Europe for failure to respect human rights.
This situation, already relevant in itself under Article 705 of the Code of Criminal Procedure. 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 occasion to confirm a decision against extradition requested by Turkey (Sec. 6, no. 32685, July 08, 2010, Seven) - has been further aggravated after the events of the attempted coup d'état of July 15, 2016, following which the Government of Turkey, on July 21, 2016, in an official communiqué to the Council of Europe, declared its intention to avail itself of the exception provided for in Article 15 of the Human Rights Convention, to which it is a party. As a result of the use of the waiver provided for in the aforementioned Article 15, resulting in a partial suspension of the Convention, a number of defense rights of the accused in the criminal trial are now drastically limited, with a sharp increase in the powers of the police (significant is the provision of police detention 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, in a decision dated September 22, 2016, the Court of Appeal of Schleswig-Holstein (Germany) refused an extradition requested by Turkey, justifying this refusal precisely by reference to the situation that occurred after the declaration of "suspension" of the Convention. The German court, on the basis of an official communication from the Foreign Ministry, refused the extradition in view of the violation of Articles 3 and 6 of the European Convention on Human Rights, after noting the limitations provided in Turkey to the right of defense, with the provision of substitution of defense counsel 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 trial, as well as with the aggravation of the situation of the unsuitable and overcrowded places of detention.
The Court 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 space. These are conditions that are also reflected in the additional documentation attached by the defense and, in particular, in the note of the Italian section of Amnesty International dated July 24, 2016, which highlights general cases of arbitrary detention, violation of the rules of due process, and torture practices carried out against detainees. Moreover, as a further testimony to the crisis situation of the entire Turkish judiciary, there are the reports learned from the national and international press, which are common knowledge and documented reports of dismissals and suspensions 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 disturbing that it has led the Superior Council of the Magistracy to suspend all cooperation with the Superior Council of Judges and Prosecutors of Turkey due to 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 (similarly, the Italian Superior School of the Magistracy has discontinued cooperation in the training activities of magistrates with Turkey).
3.3. Therefore, even considering the contingent nature of the situation that has been described, that is, linked to the state of emergency declared in Turkey, it must be recognized that today R.'s surrender would expose him to the concrete risk of being subjected to a criminal trial with severe limitations on his defense rights, in violation of the principles of due process, as affirmed 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 that country's prisons, in violation of the fundamental rights of the person.
4. In conclusion, upholding the proposed grounds, the appealed judgment must be annulled without referral, since the conditions for the extradition requested by Turkey must be excluded.
Accordingly, the immediate release of R.A. must be ordered, unless detained for other reasons.
The Clerk's Office will carry out the formalities set forth in Article 626 of the Code of Criminal Procedure and Article 203 of the Provisions of the Code of Criminal Procedure.
for this reasons
Annuls without referral the appealed judgment since the conditions for the requested extradition do not exist and orders the immediate release of R.A. unless detained for another cause.
Sends to the Clerk's Office for fulfillment of the requirements of Article 626 of the Code of Criminal Procedure and Article 203 disp. att. c.p.p.
Thus decided in Rome, November 15, 2016.
Filed at the Clerk's Office on December 21, 2016.