No surrender if EU prisons do not guarantee minimum living space

The delivery of a convicted person may be refused if the authorities of the requesting State do not guarantee, for the entire duration of the detention, the possibility for the convicted person to enjoy spaces in line with the parameters of the European Convention on Human Rights. Nor is there an obligation to request further information if, from what emerges from the data acquired, there are insufficient guarantees that the person to be surrendered, within the framework of a European Arrest Warrant, is in a condition to enjoy the three square metres, net of the fixed and 'suspended' furniture, in the cell that will be assigned to him. Three metres that must becomefour during the periods ofopen execution.

The Cassazione, in a ruling in line with the parameters set by Strasbourg, rejected the prosecution's appeal, according to which extradition to an EU country, in the case examined Romania, could not be denied, without asking for more explanations from the State that had secured the 'vital' metres - at least for part of the period of restriction of liberty - without however specifying whether from these were deducted the spaces for furniture fixed to the ground, or for those placed on the wall at a height that prevented free movement.

For the Supreme Court, in fact, the country requesting the surrender is obliged to clarify that the CEDU parameters, which allow the risk of inhuman and degrading treatment to be averted, are respected throughout the detention. Specifically, there was talk of a 21-day quarantine on arrival in a room with a minimum space of 3 square metres.

Subsequently, the offender would be assigned to a facility, in respect of which no clarification was given as to the usable area. The judicial authorities had then assumed semi-open detention with three square metres available and, in the case, open detention with four square metres. All this without going into detail about the actual usable space.

For the Public Prosecutor there was no margin to refuse to comply with the extradition request; if anything, more could, and should, have been asked of the state requesting the surrender. The Court of Cassation took a different view, recalling that the information provided was such that the concrete risk of inhuman and degrading treatment could not be excluded. A risk that an EU State cannot tolerate in respect of fundamental principles, from which the serving of a sentence is not exempt.