Ukraine

The mere fact that a State is involved in an armed conflict does not automatically imply that detainees will be subjected to inhuman or degrading treatment. In any event, within extradition proceedings—during which the actual evolution of the armed conflict must be assessed on a case-by-case basis—it is always possible to request additional information from the requesting State, as well as any necessary assurances regarding the place of detention of the requested person and the respect of their fundamental rights.

The case concerned an extradition request by Ukraine for the prosecution of a Ukrainian national accused of aggravated misappropriation, bank fraud and forgery of an official document. The requested person opposed extradition, arguing, among other grounds, that the ongoing armed conflict in Ukraine exposed him to a real risk of death or inhuman or degrading treatment, and that his subsidiary protection status granted by Poland barred surrender. The Italian Supreme Court held that the mere existence of an armed conflict in the requesting State does not automatically preclude extradition. Rather, the executing court must carry out a concrete assessment of the actual risk faced by the requested person, taking into account the location of the detention facilities, their distance from active hostilities, the availability of protective measures, and reliable updated sources. In the present case, Ukraine had identified detention facilities located away from the areas of active conflict and equipped with shelters, while the available UN material showed only a low and non-specific risk in those areas. The Court further held that the CJEU case law concerning refugee status granted by another EU Member State does not apply to subsidiary protection. The appeal was therefore dismissed and the extradition order upheld.

The case concerned a request by Ukraine for the extradition of a sitting Ukrainian Member of Parliament to stand trial for alleged violent offences committed in 2022 and 2023. The requested person resisted extradition on several grounds, arguing that the proceedings were politically and religiously motivated, that he had previously been ill-treated by Ukrainian security officers, that the ongoing armed conflict created risks under Articles 2 and 3 ECHR, and that he would face unfair trial, arbitrary detention, religious persecution and oppression due to ill health. The Westminster Magistrates’ Court rejected the objections based on political motivation, Articles 2, 3, 5, 6 and 9 ECHR, ill health and abuse of process, holding in particular that Ukraine’s specific and verifiable assurances were sufficient to neutralise the identified risks. However, the Court accepted that the requested person had previously been subjected to ill-treatment in SBU custody and considered that this, together with his public perception as sympathetic to Russia, the residual risks arising from the armed conflict, his family circumstances, and the comparatively limited seriousness and likely penal consequences of the alleged offences, created an exceptional cumulative picture. The Court therefore held that extradition would amount to a disproportionate interference with private and family life under Article 8 ECHR and ordered discharge under section 87(2) of the Extradition Act 2003.

The extremely severe situation of the ongoing armed conflict, which is now spreading to areas previously unaffected by attacks by the Russian Federation and whose developments are, at present, unpredictable, constitutes a ground precluding extradition, as it is not possible to provide an effective guarantee as to the absence of a current risk to the safety of the person to be extradited. The exceptional nature of the current situation of the armed conflict in Ukraine constitutes a “matter of common knowledge,” acquired within the collective awareness to such a degree of certainty as to appear indisputable.

Martial law remains in force throughout the territory of Ukraine, and the Ukrainian Government has notified the Council of Europe and the United Nations that it continues to derogate from Ukraine’s obligations under Article 2(3), Articles 9, 14 and 17 of the International Covenant on Civil and Political Rights and Articles 5, 6, 8 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, without prejudice to the fundamental principles of a fair trial and legal protection, including the ne bis in idem principle.The Court found that said derogations were not limited to areas of active conflict. It also highlighted that the Ukrainian government cannot predict which areas might be targeted next and, as a result, might become affected by the derogations. Further, because of the martial law in force, itself dependent on the duration of the war, the temporary detention of the person concerned will depend on an "authorized agent" and its extension will depend on the prosecuting authority, except by decision of a judge or a court. There is no guarantee that the requested individual would benefit from a fair trial within a reasonable time.

In matters of extradition to a foreign State, a bar to surrender based on the risk to the individual’s fundamental rights arises where the requesting State, being involved in an armed conflict, is unable to provide adequate assurances as to the absence of a current risk to the safety of the requested person, due to the widespread, intense and exceptional nature of military attacks affecting its entire territory, where such a situation is objectively established, including as a matter of common knowledge.

In matters of extradition to a foreign State, where the request for surrender is made by the third country of origin of a person to whom another Member State of the European Union has granted temporary protection pursuant to Directive 2001/55/EC, the requested Italian judicial authority must initiate prior consultations with the State that granted such protection, in order to ascertain whether it precludes the execution of the extradition or whether the authority that granted it intends to revoke it pursuant to Article 28 of that Directive. In this context, the principles laid down in the judgment of the Court of Justice of the European Union of 18 June 2024, Case C-352/22, concerning persons granted refugee status under Directive 2011/95/EU, shall apply. (Case concerning an extradition request submitted by Ukraine against one of its nationals, to whom the Portuguese authorities had granted temporary protection, pursuant to Directive 2001/55/EC and Council Implementing Decision (EU) 2022/382 of 4 March 2022, for persons fleeing the ongoing war in that country).

On 18 April 2022, the Permanent Representation of Ukraine informed the Secretariat General of the Council of Europe of the impossibility of guaranteeing the full implementation by the Ukrainian side of its obligations under the international treaties concerning international cooperation within the Council of Europe during the period of armed aggression by the Russian Federation against Ukraine and the imposition of martial law on the territory of Ukraine. The list of aforementioned treaties included: the European Convention on Extradition (ETS No. 24), the Additional Protocol to the European Convention on Extradition (ETS No. 86), the Second Additional Protocol to the European Convention on Extradition (ETS No. 209), the Third Additional Protocol to the European Convention on Extradition (ETS No. 212) and the Fourth Additional Protocol to the European Convention on Extradition (ETS No. 212). As a result, the Requesting State was found unable to guarantee that the requested individual would be judged by a court able to ensure a fair trial and the respect of the rights of the defence. Further, the requested individual could face a denial of justice, as a result of the application of the martial law and the ongoing armed conflict, which could profoundly disrupt the judicial system and prevent the progress of proceedings.

With regard to the request to replace the current custodial measure with house arrest, and as to why such measure — even with the prescribed conditions and safeguards — would not be sufficient to neutralise the identified precautionary needs, the Court is effectively silent. It follows that the challenged order must be quashed on this point; the Court of Appeal shall apply the stated principles and carry out a fresh assessment as to the adequacy of the measure currently in place, or the possibility of replacing it with house arrest.

The ground for refusal based on the risk to the person’s fundamental rights is established where, in the requesting State—engaged in an ongoing armed conflict—martial law is in force and no specific assurances are provided regarding the detention conditions that will be ensured for the person sought.

Summary:The Court of Cassation approves the reasoning of the Appeal Court of Chambéry. Martial law remains in force throughout the territory of Ukraine, and the Ukrainian Government has notified the Council of Europe and the United Nations that it continues to derogate from Ukraine’s obligations under Article 2(3), Articles 9, 14 and 17 of the International Covenant on Civil and Political Rights and Articles 5, 6, 8 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, without prejudice to the fundamental principles of a fair trial and legal protection, including the ne bis in idem principle.The Court found that said derogations were not limited to areas of active conflict. It also highlighted that the Ukrainian government cannot predict which areas might be targeted next and, as a result, might become affected by the derogations. Further, because of the martial law in force, itself dependent on the duration of the war, the temporary detention of the person concerned will depend on an "authorized agent" and its extension will depend on the prosecuting authority, except by decision of a judge or a court. There is no guarantee that the requested individual would benefit from a fair trial within a reasonable time.

The prohibition under Article 297(3) of the Italian Code of Criminal Procedure on multiple precautionary charges entailing the application of the same coercive measure for “the same facts” also applies in extradition proceedings, in the absence of specific conventional or domestic provisions to the contrary. This follows from the general reference made by Article 714(2) of the Code of Criminal Procedure to the provisions set out in Title I of Book IV of the Code. The Court declared the custodial measure ineffective in respect of a requested person who had already served the maximum period of detention in the course of a different extradition proceeding initiated, for the same facts, following a prior request.