As a result of the outbreak of the Russian-Ukrainian conflict, it is reasonable to assume that the problem of prison overcrowding reported in a pilot judgment as early as 2020 by the European Court of Fundamental Rights is still current, despite the assurances given by the requesting state. The defense of the extradite also pointed out that Ukraine for the force of martial law has requested the derogation of Articles 5, 6, 8, 13 of the European Convention on Human Rights, standing out the possibility of deciding on the extension of pre-trial detention by an autrotized official with violation of fundamental guarantees and protection of the right to defense.
(thanks to Attorney Christine Jöchler for sending the decision)
(unofficial machine translation)
Court of Appeals of Trento
Bolzano detached section
judgment 11/24 dd. 22 - 29.2.2024
In the proceedings sub no. 5/2023 R.G. ESTR. against *** born on date in Ukraine, defended ex officio by attorney Christine Jöchler of the Bolzano Bar, subject to the precautionary measure of signing duty, present
CONCLUSIONS
The General Prosecutor's Office requests that the extradition of to the State of Ukraine take place.
Defense counsel for requests that the extradition request be rejected.
COURSE OF THE TRIAL
** was arrested by the Brenner Police Station, pursuant to Art. 716(1) of the Criminal Code, on May 2, 2023, at 2 p.m., as the addressee of international arrest warrant No. *57***/22-* issued on January 2, 2023 by the District Court of ** the city of Kiev (Ukraine), From the note of the Ministry of the Interior dated 2.5.2023, prot. No. *I-123***-2023-***, it appears the following statement of the facts alleged against the arrested person: "In the period from July 19 to August 24 of the year 2001, in Ukraine, with the complicity of other persons, the named person in question through the use of equipment suitable for circumventing anti-theft devices, unlawfully appropriated the following cars ***."
The arrest report was forwarded on 2.5.2023, at 6:02 p.m., to the Trento Court of Appeals, Bolzano detached section, for the measures of jurisdiction provided for in Articles 7k6 et seq. of the Criminal Code...
By order dated 3:5.2023, the deputy counsel found that the prerequisites existed for the validation of the arrest and for the application of the coercive measure of the obligation to stay in the municipality of Campo di Trens and the obligation to report to the Judicial Police, and set. hearing for the interrogation of the aforementioned.
At the interrogation, which took place on May 9, 2023, the extradite declared that he did not consent to the extradition request and did not waive the principle of specialty, and declared his extraneousness to the facts being charged against him.
In an order dated May 26, 2023, the Court ordered the replacement of the existing precautionary measure with the precautionary measure of the obligation to report to the judicial police for 3 days a week, on Mondays, Wednesdays and Fridays of each week in the time slot from 9 a.m. to 10 a.m. at the Carabinieri Station Command in Campo di Trens. This precautionary measure was further modified later in the proceedings.
On June 7, 2023, the Ministry of Justice forwarded to the Court the extradition request submitted by the Government of Ukraine, with attached documentation in Ukrainian, English and Italian.
In a written indictment dated June 7, 2023, the Attorney General's Office requested this Court to rule on the extradition of ** to the Government of Ukraine and to order the surrender of any seized items.
It appears from the extradition request and attached documentation that it is requested to proceed against the extradite for three separate incidents of car theft committed in the period between July and August 2021 in conjunction with a certain ** . Contrary to what is stated in the note of the Ministry of the Interior dated 2.5.2023, prot. No. ***3-1-****-**2 the events would have occurred in the year 2021 and not in the year 2001. In addition, it appears from the indictment of the Kiev General Prosecutor's Office No. ***, attached to the extradition request, that the extradition was requested not only to proceed in connection with the three aforementioned theft incidents, but also to execute against the extradited person, in the event of conviction, the residual sentence (exceeding 10 months of imprisonment), referred to in the judgment of the Court of Appeals of the Dnipropetrovsk region dated 4.10.2010, pronounced for the crimes referred to in Art.
of the Criminal Code of Ukraine committed for mercenary reasons, on commission, by a group of people on previous. conspiracy; excess of authority, accompanied by violence and actions offending personal dignity. of the victim, which caused serious consequences.).
Following the filing of the extradition request, a hearing before this Court was set for July 13, 2023.
The proceedings were adjourned in order to acquire an Italian language translation of the documentation submitted by the requesting foreign authority.
The Court also requested information on the conditions regarding the extradite's detention, in case of a favorable decision on extradition. At the hearing. on 22.2.2024, the parties made their respective conclusions and the Court read the operative part of the judgment.
GROUNDS FOR THE DECISION
The request for extradition must be rejected, as the reasons for refusal of a favorable extradition decision set forth in subparagraphs (a) and (c) of paragraph 2 of Article 705 of the Code of Criminal Procedure exist.
With regard to the prerequisite of subparagraph (c), it is noted that the Supreme Court, in its judgment dated Nov. 30, 2021, No. 45836, pointed out that it had recently ruled in relation to the Ukrainian situation, noting the existence of serious deficiencies in the Ukrainian prison system. Specifically, the Edu Court, in a judgment of January 30, 2020, which became final on May 30, 2020, had issued a pilot judgment against Ukraine, having found uri structural and persistent problem in the prison system of that state (overcrowding and inadequate prison conditions), assigning 18 months from May 30, 2020 to correct the critical issues found. On the website of the Council of Europe, which is dedicated to the execution of the judgments of the EDU Court, it appeared that as of the date of the last session of the Committee of Ministers in June 2021, Ukraine, despite the approaching expiration of the imposed deadline, had not resolved the structural problems found at all.
This Court is then of the opinion that, as a result of the outbreak of the Russian-Ukrainian conflict and in the absence of any reports or decisions indicating a resolution of the aforementioned problems found, it is reasonable to consider that the problem of prison conditions in Ukraine still exists.
The information/assurances forwarded by the Office of the Prosecutor General referred to in the translation in the record dated January 11, 2024 are not considered sufficient to prevent the risk of the extradited person being subjected to prison treatment that would constitute a violation of one of the fundamental rights of the person. In this regard, it is noted that, from the aforementioned document, it appears that the extradited person, in the event of pre-trial measures ordered against him, will be interned in the pre-trial detention center closest to the place of criminal proceedings (city of Kiev) and precisely in the state institution called "Kiev Pre-trial Detention Center." In that institution 25 cells with improved housing and food conditions designed for 54 persons are in operation, however, the placement of persons to be remanded in custody in such cells is done upon payment and on a voluntary basis. It then appears that the premises of 31 cells in the regime buildings with 474 places have been renovated. The document indicated confirms that the facility has 362 cells capable of accommodating 2,535 persons and that the extradited person, should he or she be placed in such an institution, will be provided with a personal space in the cell of at least 4 square meters, excluding the area dedicated to health services.
Regarding the minimum space to be guaranteed to the detainee, it is noted that the Supreme Court, in its judgment dated 16.11.2022, No. 44015/2022, recalled the principles expressed by the United Sections, according to which in the assessment of the individual space of three square meters, to be ensured to each detainee so that the State does not incur the violation of the prohibition of inhuman or degrading treatment, established by ait. 3 of the EDU Convention, regard must be had to the area that ensures normal movement in the cell and, therefore, furnishings that tend to be fixed to the floor, which include, for example, bunk beds, must be deducted. In the case at hand, the Ukrainian authority ensured an available space of at least 4 square meters, however, only the area dedicated to sanitary facilities was excluded from the area available to the detainee, not also the area occupied by árredi tendenzialmente fissi, such as beds or furniture, the dimensions of which were not indicated. In addition, it is unclear how the minimum space indicated in the note of the Ukrainian Prosecutor's Office can be ensured, since it is not specified what is the exact current number of the prison population present in the said institution: the document mentions a facility capable of accommodating 2,535 persons, but it is not known whether the persons currently detained are in lower or higher nurnumber and therefore whether or not there is an overcrowding situation. It is also noted that it does not appear that the extradite can afford the payment for detention in one of the 25 cells whose conditions have been improved. In conclusion it is noted that in the aforementioned document of the Prosecutor General of Ukraine, it is specified that the "Center, for pre-trial detention in Kiev" is not necessarily the one where the extradite will also serve his sentence in case of conviction. In fact, it has been specified that the type of the prison and correctional facility where the convicted person will serve the sentence will be decided only after the res judicata of the conviction pronounced by the court, taking into account the provisions of the first paragraph of Article 93 of the Criminal Code of Ukraine and the availability of places for prisoners. Taking into account the fact that the extradition was requested both for the conduct of the trial in which the extradite could face a sentence of 5 to 8 years' imprisonment, and for the execution of a residual sentence of 1 year 9 months and 17 days' imprisonment for an already final conviction, there is a real risk that the extradited person would have to serve a long period of detention - in conditions of detention that are not specified and that are likely, given the existing situation found in numerous judicial pronouncements, to be in violation of the prohibition of inhuman or degrading treatment, established by Art. 3 of the EDU Convention.
Next, with regard to the requirement of (a), it appears from the documentation filed by the defense of the extradited person (see in particular the judgment of the Court of Appeals of Reggio Calabria dated February 15, 2024 € documentation in the record), that Ukraine has exercised its right to derogate from its obligations under the 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 Prosecutor General of the Ukrainian state has drawn up a list of derogations from the fundamental rights arising from martial law. In particular, the restrictions on the right to a fair trial and the rights of the defense led to the amendment of 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 investigations, 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 martial law and war, these restrictions being applicable to the whole territory of Ukraine and not only the part occupied by Russian military forces. It therefore follows from the above that the requesting state is unable to ensure that the extraditee will be tried by a court offering basic procedural guarantees and protection of defense rights.
Therefore, the extradition request must be rejected, given that the defendant would be subjected to proceedings that do not ensure the. respect for fundamental rights and there is reason to believe that he would be subjected to acts amounting to a violation of one of the fundamental rights of the person.
P.Q.M.
The Court of Appeal of Trento - Detached Section of Bolzano, having regard to Article 704 et seq. of the Code of Criminal Procedure, rejects the extradition request made against **
Thus decided in Bolzano, on 22.2.2024