- Giulia Borgna
Extradition to Italy should be stayed amid the coronavirus health crisis
Updated: Jun 9, 2022
The World Health Organization (“WHO”) has qualified the novel coronavirus, Covid-19, a pandemic representing a worldwide spread of the new disease.
At the time of writing, there have been hundreds of thousands of confirmed cases of Covid-19 worldwide. Italy accounts for most of the cases and deaths outside of China, with the numbers surging higher by the hour. The outbreak is putting the network of hospitals under colossal strain, with some of them already having reached full capacity (particularly in the Northern regions of Italy, where the infection spread first).
On 8 and 9 March 2020, violent riots broke out in two-dozen Italian prisons, resulting in the death of 13 inmates and the injuring of 40 correctional officers. The unrest was sparked by the emergency restrictions imposed amid the coronavirus outbreak, including restricting contacts with the outside world through limitations on visits.
While the authorities managed to bring the situation under control, the riots have exposed legitimate health-care concerns related to the risk of an outbreak of the infection in prisons. These concerns are further boosted by the issues of overcrowding, lack of hygiene and insufficient health care which notoriously affect Italian prison establishments.
Unlike other countries that have temporarily freed prisoners in an effort to curb outbreaks (Iran and Albania - to see what's going on in European prisons, see here), Italy has not adopted general measures aimed at significantly reducing the prison population. The only measure envisaged in Law-Decree no. 18 dated 17 March 2020 is the possibility of early release for inmates with less than 18 months still to be served (Article 123). According to reliable estimates, this measure could lead to the release of 3.000 detainees at the most. Yet, the Italian prison estate is operating 120% over capacity with a prison population of 61.230 for 50.931 places.
Accordingly, the protection of prisoners’ health is entrusted solely to ad-hoc regulations.
The Department for the Administration of Prisons (“DAP”) issued a variety of regulations with a view of curtailing the risk of outbreak in correctional facilities, ranging from initially restricting access to anyone coming from the so-called “red zone” (read here, here and here) to equipping correctional officers (not inmates) with Individual Protection Devices (“IPDs”), such as masks and gloves (read here and here). In its most recent regulation dated 13 March 2020, the DAP developed contingency policies to deal with potential cases of infected detainees.
When confronted with the CPT’s recommendations, the measures adopted by the Italian Government appear widely insufficient. In a nutshell, the only strategy put in place with a view to contain the risk of a potential outbreak of the infection has been to isolate prison facilities from the outside world.
In the absence of proactive measures to reduce the prison population, the spread of the infection is extremely difficult to contain in overcrowded facilities, such as the Italian ones. Italy already experimented the difficulty of containing the spread of infectious diseases with the outbreak of TBC in several prison facilities across the country. Hand sanitizers are in principle banned due to their alcoholic content and multi-occupancy cells leave little room for social distancing or similar recommendations experts made to curb the spread. Many prisons in Italy also deal with systemic shortage of water and dire hygienic conditions.
Moreover, the contingency procedures set out by the DAP to treat potential cases of coronavirus appear highly problematic. If a detainee shows symptoms, he shall be visited by a health practitioner in his cell, without being transferred to the infirmary. Depending on the specific circumstances of the case, the detainee might be subject to a nasopharyngeal swab and must remain in his cell until the diagnostic results come back. If the inmate tests positive to Covid-19, he shall be either placed in an isolation cell or transferred to a hospital. This means that, during the time required to process the swab, his cellmates are inevitably exposed to the risk of being infected themselves. Seemingly, Covid-19 spreads at its quickest in closed environments.
In addition, despite the internal regulations issued by the DAP, it appears that IPDs are still lacking in most prisons and correctional officers are not screened upon entry in the prisons (read here and here).
The Ombudsman for the Rights of Persons Detained or Deprived of their Liberty (“National Ombudsman”) has been highly critical of the measures adopted thus far by the Italian authorities, arguing that they are “mainly aimed at avoiding the risk of future responsibility rather than actually avoiding the spread of the infection which would certainly be very problematic in collective and closed establishments” (see press release of 3 March 2020; see also statements of 13 March 2020 and 23 March 2020).
In a similar vein, Italian NGO Antigone qualified these measures as “clearly insufficient to address the issues of extreme gravity that the situation would require” and warned that “prisons risk becoming a health bomb” since the “great proximity in which detainees are forced to live may easily boost the number of infections” (read here).
So far, the DAP officially confirmed that 17 detainees have already tested positive for Covid-19, but local media has been reporting many other cases involving correctional officers, detainees and health practitioners across the entire country. The situation is constantly evolving and, as the infection is quickly spreading in the rest of country, it is likely that other cases will soon arise (Antigone created a very useful interactive map constantly updated with the situation in each prison establishment in Italy, see here).
The inadequacy of the measures thus far adopted by the Italian Government becomes relevant also in the field of extradition. It could be easily argued that the current situation in Italy would expose requested persons to serious and irreversible risks for their health and well-being in breach of Article 3 ECHR.
How should the matter be addressed then?
Reasonably, the pandemic will run its course with time. How much time no one knows yet. The most realistic solution would be to adjourn all unheard matters and to halt transfers that have already been authorized, as courts are seemingly doing in Ireland. This is all the more so considering that most European countries have travel bans in place.
At the very least, two sets of problems arise.
The first is of a practical nature and involves compliance with the time-limits to carry out the surrender envisaged by extradition treaties and EAW legislation (see for example para. 1 of Article 23 of FD 2002/584/GAI). But this obstacle could be easily superseded by applying the relevant legislation, which usually allows for the adjournment of the surrender in exceptional circumstances. For example, in relation to the EAW, paras. 2 and 3 of Article 23 allow for postponement of the surrender for, respectively, “circumstances beyond the control of any of the Member States” and “serious humanitarian reasons”. Similar provisions are contained in most extradition treaties (e.g. Article 18, para. 5, of the 1957 Extradition Convention). There is hardly any doubt that the current pandemic would qualify as a case of “force majeur” under the terms of domestic and international law (see, mutatis mutandis, European Court of Justice, case C-640/15, Tomas Vilkas, judgment of 25 January 2017).
But halting transfers would also raise a substantive problem related to the risk of an undue extension of detention pending extradition. Less restrictive measures (such as the prohibition of leaving the country in lieu of detention) should be preferred, but when this is not possible there might be a real issue, as the suspension of transfer would effectively mean that the requested person could be detained until the emergency has been contained, that is sine die.
In its 2017 Handbook on the EAW, the EU Commission recommended that “in situations where such humanitarian reasons are indefinite or permanent the issuing and executing judicial authorities might consult and consider whether there are alternatives to the EAW. For example, possibilities to transfer proceedings or the custodial sentence to the executing Member State or to withdraw the EAW (for example in the case of serious permanent illness) might be examined” (§ 5.9.1). But again, this might not always be possible.
There is still much uncertainty at this time but, until the situation gets under control, transfers to Italy should be halted. For the time being, courts should review the detention of individuals on remand pending extradition and ensure that detention is not excessively imposed.