Fundamental rights are not affected in an extradition to Moldova since detention institutions are not directly affected by war events.
The existing prison situation in Moldova currently satisfies the requirement of compliance with conventional standards regarding the prohibition of subjecting the detainee to inhuman and degrading treatment, also in light of the requested and obtained detailed information on the prison treatment to which the applicant will actually be subjected.
(automatic unofficial machine translation original here)
Court of Cassation
Sec. VI Criminal, Judgment 14883 Year 2024
President: DE AMICIS GAETANO
Rapporteur: APRILE ERCOLE
Hearing Date: 03/04/2024 - filing 10/04/2024
JUDGMENT
on the appeal brought by B.A. born in omissis on omissis against the judgment of 14/07/2023 of the Court of Appeal of Venice, Juvenile Section;
Having regard to the acts, the contested order and the appeal;
Hearing the report delivered by Councilor Ercole Aprile;
read the indictment of the Public Prosecutor, in the person of Deputy Attorney General Giuseppe Riccardi, who concluded by requesting the inadmissibility of the appeal;
read the brief of Advocate ADM, defense counsel for the appellant, who concluded by requesting that the judgment under appeal be set aside.
IN FACT
1. With the aforementioned judgment, the Court of Appeal of Venice, Juvenile Section declared that the conditions for the extradition to the Republic of Moldova of BA requested to execute the judgment issued September 1, 2019 by the omissis Court, which became irrevocable, by which the defendant was sentenced to seven years and six months of imprisonment in relation to the crime of multiple aggravated murder, committed on December 19, 2018 when B.A. was a minor.
2. B.A. appealed against this sentence. , by a deed signed by his defense counsel, who relied on the following grounds.
2.1. Violation of the law, in that the territorial court recognized the existence of the conditions for granting the request for extradition, despite the fact that the defendant is charged in Italy for the crime under Article 497-bis of the Criminal Code, with reference to which a pre-trial appearance hearing has been scheduled before the Court of Padua, a trial in which he is entitled to participate in order to be able to exercise his right of defense.
2.2. Infringement of the law, in that the District Court ruled out the recurrence of grounds for impediment to surrender, although the risk had been pointed out that the defendant, if transferred to the Republic of omissis, might be destined to inhuman and degrading prison treatment, as, moreover, has been verified by international organizations and as has been certified by the European Court of Human Rights, which, precisely in relation to a previous period of pre-trial detention suffered by B . A . in a prison omissis condemned Moldova for the conditions to which the applicant was subjected, for violation of the provisions of Articles 3, 5 and 13 ECHR.
2.3. In the memorandum transmitted via pec on March 28, 2024, B.A.'s counsel also complained about the possible risk that his client could be transferred to the territory of a state in which there is a current and obvious danger of entry into war in connection with the conflict between Russia and Ukraine: as is confirmed by the events that have recently affected the pro-Russian population of the omissis region in which there is a situation that would not allow B.A. to benefit from an adequate re-educational path in a Moldovan prison.
3. The proceedings were dealt with in today's hearing in chambers in the form and manner set forth in Article 23, paragraphs 8 and 9, of Decree-Law No. 137 of October 28, 2020, converted by Law No. 176 of December 18, 2020, the effects of which were extended by subsequent legislative amendments.
CONSIDERED IN LAW
1. It is the opinion of the Court that the appeal filed in the interest of BA should be dismissed.
2. The first ground of the appeal is manifestly unfounded.
It constitutes an expression of a consolidated orientation of the jurisprudence of legitimacy the principle - to which, in the case in point, the territorial court's ruling conformed - according to which, on the subject of extradition for foreign countries, the pendency of criminal proceedings in the territory of the State against the foreigner whose surrender is requested is not an obstacle to the favorable deliberation of the Italian judicial authority, but entails the possible suspension of the execution that is the responsibility of the Minister of Justice and not of the judicial authority (in this sense, among others, Sez. 6, no. 33173 of 04/07/2019, Ascione, Rv. 276478).
3. The second ground of the appeal is unfounded. It turns out to be congruously motivated, with assessments with reference to which the violation of any rule of law is not recognizable, the judgment under appeal by which the Court of Appeals has enhanced the knowledge data available to exclude the recurrence of the prospected profiles of censure. Situation in which that violation of Art. 3 ECHR which," as specified by the Strasbourg Court, imposes on the State the positive obligation to ensure that all detained persons are detained in conditions compatible with respect for human dignity, that the manner in which the measure is carried out does not subject the person concerned to stress or trial the intensity of which exceeds the unavoidable level of suffering inherent in detention, and that, having regard to the practical requirements of imprisonment, the health and well-being of the detainee is adequately ensured (thus in Ciobanu v. Romania and Italy, No. 4509/08, §§ 44, July 9, 2013).
The appellant's grievances appear merely repetitive of those already motivatedly disregarded by the judges of the merits, who, with a congruous path of argumentation, explained how the situation existing in Moldova currently satisfies the requirement of compliance with conventional standards regarding the prohibition of subjecting detainees to inhuman and degrading treatment (in the same sense Sez. 6, no. 47011 of 30/10/2023, Gutu, non mass.; Sez. F, no. 32430 of 01/09/2022, P., non mass.).
On the other hand, it must be said that in the present case the Court of Appeal of Venice requested and obtained detailed information on the prison treatment to which the appellant will be concretely subjected: thus being placed in a position to verify the current conditions of treatment in the relevant penal institutions, to acquire individualized information on the plano of detention with the precise modalities of execution and of the re-educational path that will be followed in the penal institutions where the extradite will be assigned: very specific aspects with which the appellant has substantially failed to confront.
4. The third ground of appeal - moreover, formulated, in the particular terms indicated, only for the first time not with the appeal but with a subsequent defense brief - is also unfounded.
This Court has already had occasion to clarify how it does not entail a violation of Article 705 of the Code of Criminal Procedure to grant a request for extradition to a state for assignment to detention institutions that are not directly affected by war events (see Sect. 6, no. 47011 of 30/10/2023, Gutu, cit.; Sect. 6, no. 45527 of 16/11/2022, Nedzelskiy, non mass.; conf. Sect. F, no. 32430 of 01/09/2022, P., cit.). In this sense, it should be noted that none of the aforementioned provisions of law are violated by the decision of the District Court under appeal, from which it follows that today's appellant will be destined for a prison located in an area not directly affected by the fighting between the Ukrainian and Russian armed forces; while indeterminate and only possible fears of an internal coup d'état in Moldova appear.
5. Dismissal is not followed by an order that the appellant pay the costs of the proceedings on account of his minor age at the time of the criminal acts for which he was tried.
The clerk's office is to be referred to for the statutory communicative requirements.
P.Q.M.
Dismisses the appeal. Remands to the clerk's office for the fulfillments referred to in Art. 203
disp. att. cod. proc. penale.
Thus decided on 03/04/2024 - 10/4/2024