The Belgian prison, as stated by European and international bodies, unfortunately do not guarantee the fundamental rights of prisoners. In the event of a request for delivery from Belgium it is necessary to be assisted by a lawyer for extradition to Belgium, if you wish to receive assistance or legal advice on the matter, you can apply here AvvocatoPenalistaH24.it expert in the matter of European arrest warrant (EAW) and extradition to Belgium.
In the two different cases that will be examined, the Court of Appeal of Naples has ordered the delivery of the applicants to the Belgian judicial authority in execution of the European arrest warrant.
It should be noted that the European Arrest Warrant (EAW) is a form of simplified extradition entrusted to the judicial authorities of the member countries of the European Union which is based on mutual trust between the States of the Union. The simplification compared to the classical extradition is represented by a faster procedure where the filter of political power is eliminated.
The case covered by the judgment No 3641/2019 – SEC. VI court of cassation.
The appellant challenged the sentence of the Court of Appeal of Naples for having ordered the extradition to Belgium in violation of the art. 18 lett. h) of the law 69/2005 which provides for the refusal of delivery when there is a serious danger that the requested person will be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.
The lawyer had, for this purpose, reported the rulings of the Court of Cassation, the EDU Court and the Public Declaration issued on 13/7/2017 by the Committee for the Prevention of Torture of the Council of Europe (CPT) in which acknowledged the persistent inability of the Belgian authorities to ensure a minimum service to guarantee the respect for the rights of prisoners in the event of union agitation of the prison staff and the existence of the risk of being subjected to inhuman and degrading treatment related to the conditions of the prison institutions Belgium.
The Court of Appeal of Naples had excluded this risk on the basis of the information received from the Director of the Federal Public Service of Justice of Belgium, which ensured that the requested person would be restricted in the prison of Anversa in full respect of human rights and international standards .
The VI section of the Court of Cassation recalled that, as clarified by the Court of Justice of the European Union, the reason for refusal of delivery related to the “serious danger” that the person should be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment, requires to verify, after having ascertained the existence of a general risk of treatment inhuman by the Member State (based on “objective, reliable, precise and properly updated elements” on the conditions of detention in force in the issuing Member State and proving the presence of either systemic or generalized shortcomings, or limited to certain groups of people or to certain detention centers), if, in practice, the person covered by the EAW may be subjected to inhumane treatment, so that for this purpose any additional necessary information may be requested from the issuing State (Section 6, No. 23277 of 01/06/2016, Barbu).
Well, in this case, the Court of Cassation, accepting the appeal, highlighted the error the Court of Appeal had made in not assessing the documentation produced by the lawyer of appellant – expert lawyer for extradition to Belgium – concerning the concrete risk of being subjected to inhuman and degrading treatment resulting from strikes or other collective actions of prison officers.
On 7/6/2018, the Belgian authorities, in response to the CPT, undertook to adopt a legislative instrument to resolve the issue and to ensure that minimum standards for prisoners continue to be guaranteed even during prison strikes.
The Court of Cassation concluded that, although procedures have been activated to eliminate the aforementioned risk situation, in the mentioned case this situation has not been overcome, which is the reason why the art. 18 letter h) was violated.
Therefore, the judges of legitimacy annulled the contested sentence, returning the process to another section of the Court of Appeal of Naples so that, once the updated information will be acquired about the establishment of a mechanism that ensures the respect for the fundamental rights of prisoners in the event of staff strikes penitentiary, proceed to a new judgment about the existence of the reasons for refusal pursuant to art. 18 lett. h).
The case covered by the judgment No. 8916/2018 – Sec. VI court of cassation.
The appellant challenged the sentence of the Court of Appeal of Naples for having ordered his extradition to Belgium in violation of art. 18 lett. h) Law 69/2005 to have the Court omitted any verification on the prison conditions of Belgium even though the lawyer had attached the documentation proving the risk of inhuman and degrading treatment for the person delivered.
The lawyer for extradition to Belgium also objected that the Court had not specifically assessed all the irrevocable convictions and pending proceedings in Italy relating to the appellant, believing that the crimes covered by the European arrest warrant (EAW) were wrongly more serious that the Italian one.
The Court of Cassation, in accepting the appeal, found that the Court of Appeal had wrongly rejected the grievance concerning the risk of being subjected to inhuman or degrading treatment related to the prison situation in Belgium without ordering the acquisition of additional information and checks, pursuant to art. 16 L. 69/2005.
In fact, the Court of Appeal of Naples had considered outdated the structural problems of the Belgian prisons outlined by the EDU Court to have been overcome without proceeding with the necessary verifications and devaluing the Public Declaration adopted by the CPT in 2017 where it was denounced precisely the risk of subjugation of prisoners of Belgian prisons to inhuman and degrading treatments.
Precisely in relation to the situation in the prisons of Belgium, the Court of Cassation had already clarified that,on the issue of the European arrest warrant issued by the Belgian judicial authority, the risk condition related to structural problems that can result in the subjecting of inhuman or degrading treatment, highlighted by the judgment Vasilescu c. Belgium of 11/25/2014 of the European Court of Human Rights, requires the requested judicial authority to check concretely the existence of this risk, related to the condition of the prison institutions of the issuing State, through the request for information individualized to the requesting State regarding the type of prison treatment to which the person concerned would be specifically subjected (Section 6, No. 22249 of 03/05/2017, Bernard Pascale).
The second reason of appeal, however, was absorbed by the first one.
But the Court of Cassation, in this regard, recalled that the Court of Appeal has the right to postpone the surrender to allow the requested person to be subjected to criminal proceedings in Italy for a different crime than that covered by the arrest warrant, and that this faculty implies an evaluation of opportunities that must take into account not only the gravity of the crimes, their date of consumption, but also other parameters, such as the state of restriction of freedom, the complexity of the proceedings, the phase or degree in which they the extent of the sentence to be served (Section 6, Cassation No. 26877 of 05/25/2017).
In conclusion, the Court of Cassation annulled the contested sentence with referral to another section of the Court of Appeal of Naples to proceed with a new judgment about the existence of the ground for refusal pursuant to art. 18 cit.
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