It is up to the law of the Union to establish the levels of protection of fundamental rights, on the respect of which the legitimacy of the regulation of the European Arrest Warrant and its concrete execution at the national level are subordinate: a conviction without a defender does not constitute any violation of the inviolable right to defense, since the trial can be reopened (without a question of constitutional legitimacy to activate the so-called counter-limits).
Amici curiae filed by the European Bar Association and Fair Trials Europe.
SUPREME COURT OF CASSATION
SIXTH VI CRIMINAL
Judgment No. 46360 cc - 12/12/2024 filing 18/12/2024
Has pronounced the following
On the appeal brought by.
LS, born in Milan on 12/06/1981,
against the judgment of 11/14/2024 issued by the Court of Appeal of Milan
Hearing the report delivered by Councilor Angelo Costanzo;
heard the indictment of Deputy Attorney General Fabio Picuti, who requested that the matter be referred to the European Court of Justice or the Constitutional Court or, in the alternative, that the judgment under appeal be set aside without referral;
Hearing of attorney Nicola Canestrini of the Rovereto Bar, defending SL, who asked that the grounds of appeal be upheld.
HELD IN FACT
1. With the contested judgment, the Court of Appeal of Milan ordered the surrender of LS to the Judicial Authority of Belgium on the basis of a European arrest warrant issued on 4/06/2024 by the Public Prosecutor of * following a sentence of three years and one month of imprisonment pronounced on 15/10/2018 by the Court of First Instance of *, Department of *, No. 2018, and relating to crimes of continuous fraud and sale of counterfeit products in complicity with others, committed in Belgium from 2/10/2014 to 29/04/2019.
2. In the appeal filed by L's counsel, it is requested that the judgment be set aside, with or without referral.
2.1. The first ground of appeal alleges violation of Articles 2 Law No. 69 of April 22, 2005 and 1 l, 24 and 111 Cast, because the Belgian judgment of conviction was issued aconclusion of a trial that took place not only in absentia, but also without the assistance of a defense counsel and, therefore, also with violation of the principle of cross-examination.
It is noted that such a judgment produced in this way could not be recognized in the Italian legal system pursuant to Article 1 of Legislative Decree No. 161 of September 7, 2010, because it is incompatible with constitutional principles regarding fundamental rights of liberty and due process, so that it would be contradictory to recognize it as a valid title for the detention and surrender of the convicted person.
It should be noted that, on this issue, the Court of Cassation raised a preliminary question before the Court of Justice of the European Union on January 23, 2024, in the criminal case against GE-C/2024/2141-25/03/2024- Case C30/24, Derterti, while the preliminary question raised by the Court of Appeal of Rome was decided by the First Chamber of the Court of Justice of the European Union by order C 504/2024 PPU Anacco.
2.2. The second ground of appeal alleges violation of Articles 2 Law. Apr. 22, 2005 No. 69, 117 Cast., 3 ECHR, 4 CDFUE, because the Court of Appeal did not verify whether L could be subjected to inhuman or degrading treatment in the event of surrender because of the conditions of detention in Belgium.
It is noted that the Court of Cassation (Sect. 6., No. 30578, 12/07/2023, non mass.) has held that in the case of a serious systemic situation in the prisons of the requesting state, found by several recent judgments of legitimacy, the Court of Appeal, even in the absence of defensive allegations, has the burden of ascertaining the existence of the relevant cause preventing surrender. In this regard, we point to some of the ruling of this Court of Cassation in which the validity of this principle was specifically referred to the situation of prisons in Belgium in the light of the public statement of the Committee for the Prevention of Torture of the Council of Europe of 13/0772017 and the report of 8/08/2018, partially reiterated in the subsequent report of 2022.
2.3. The third ground of appeal alleges infringement of Article 18-bis, paragraph 2, Law No. 69/2005 in the rejection of the application for the execution of the Belgian sentence in Italy in consideration of L's Italian citizenship and assessing that he was sentenced in his absence and without carrying out appropriate searches to locate him, without the assistance of a defender and without the requesting State having guaranteed the possibilityfor the surrendering person to obtain the reopening of the trial against him.
Based on the arguments/ in the appeal, it is requested that the Court of Cassation, if it does not set aside the judgment under appeal, alternatively:
(a) raise again a question for a preliminary ruling before the Court of Justice of the European Union regarding the compatibility of Article 4-bis of Framework Decision 2002/JHA with Article 6 TEU,Article 48 CDFUE and 6(3)(c) ECHR;
b) stay these proceedings pending the decision of the Court of Justice of the European Union on the similar question raised by the Sixth Criminal Chamber of the Court of Cassation by order of 29/09/2023;
c) raise a question of constitutional legitimacy of Article 18-bis Law No. 69/2005 in relation to Articles 24 and 111 Costi.
Subsequently, the appellant's defense produced a written opinion as amicus curiae drafted by the European Bar Association and Fair Trials Europe, written in English, in which the arguments in support of the appeal are reiterated.
CONSIDERED IN LAW
1. The first ground of appeal is unfounded.
The judgment under appeal states that, in its response to the request for additional information, the Belgian Authority assured that, after his surrender and service of the judgment of conviction, he will have, according to Belgian law, the possibility, within 15 days, to bring an opposition to the judgment of conviction and obtain the holding of a new trial in the presence, with the admission of new evidence and with the possible revision of the previous decision.
The Court of Appeals notes that a remedy similar to rescission of judgment is thus provided, which allows the convicted person to oppose the conviction and defend himself in a new trial, in his presence, and with the assistance of counsel.
Thus, one of the alternative conditions - the one provided for in subparagraph (d) of Article 6, paragraph 1-bis, of the aforementioned law - that may supplement the European arrest warrant issued for the purpose of the execution of a sentence applied at the outcome of a trial in which the person concerned did not appear in person, is met.
In this regard, as recalled by the Court of Appeals, Order C 504/2024 PPU Anacco of the First Chamber of the Court of Justice of the European Union, deciding on a case identical to the one under consideration, ruled that:
"Article 4-bis of Council Framework Decision 2002/584/JHA of June 13, 2002, on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of February 26, 2009, read in the light of Article 6 TEU, as well as Articles 47 and 48(2). 2 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that: it does not preclude national legislation which does not allow the executing judicial authority to refuse to surrender the person concerned under a European arrest warrant issued for the purpose of executing a custodial sentence passed against that person in the issuing State, if that person did not appear in person at the trial terminated by the decision, without being represented by a lawyer instructed or appointed by him ex officio, and if the conditions laid down in Art. 4a(1)(d) are met."
Regarding the question of constitutional legitimacy of Article 18-bis Law No. 69/2005 in relation to Articles 24 and 111 of the Constitution, it should be noted that the Constitutional Court has already ruled (Constitutional Court, ord. no. 216 of 2021), observing that the fundamental rights, to which the framework decision is bound, are those recognized by the law of the European Union and, consequently, by all member states when they implement the law of the Union, and the same constitutional traditions common to the member states contribute to their definition (Art. 6,par. 3, E.U.T.; Art. 52, par. 4, CDFUE), so that it is up to the law of the Union to establish the levels of protection of fundamental rights, to the respect of which the legitimacy of the regulation of the European Arrest Warrant and its concrete execution at the national level are subordinate.
On this basis, the Constitutional Court has made it clear that the need to ensure the uniform and effective application of the legislation on the European Arrest Warrant means that the judicial authorities of the executing state are as a rule precluded from refusing surrender outside the cases imposed or permitted by the Framework Decision, on the basis of purely national canons of protection of the fundamental rights of the person concerned (Court of Justice of the European Union, Judgment of April 5, 2016, in Joined Cases C-404/15 and C-659/15 PPU, Aranyosi and Caldararu, para. 80).
2. The third ground of appeal appears to be well-founded, but in the following terms.
2.1. In the case at hand, it must be preliminarily noted that L, an Italian citizen, requested that the sentence imposed on him be executed in Italy.
Article 18-bis, paragraph 1, no. 2, Law No. 69/2005 provides, as a ground for optional refusal of surrender, that “When the European arrest warrant has been issued for the purpose of executing a penalty or security measure involving deprivation of liberty, the court of appeal may refuse to surrender the Italian national (...) provided that it orders that such penalty or security measure be executed in Italy in accordance with its domestic law.”
Moreover, it does not appear that SL has appealed against the Belgian sentence, which, therefore, must be considered both final and enforceable.
It follows that the optional ground for refusal provided for by Article 18-bis, paragraph 2, Law No. 69/2005, can be legitimately opposed because the aforementioned right of refusal presupposes, pursuant to Article 2 of Legislative Decree No. 161 of September 7, 2010, the finality of the judgment (Sez. 6, No. 37438 of 09/10/2024, G., Rv. 287029).
It should be pointed out, on the other hand, that it is not necessary to ascertain the actual rootedness in the national territory of the Italian citizen for the purposes of the opposability of the optional ground of refusal of delivery for the execution in Italy of the sentence, because the formal possession of citizenship is sufficient (Sez. 6, no. 5233 of 02/02/2023, De Siato, Rv. 284110).
Nor, in the case under consideration, does it emerge that the primary interest related to the pursuit of the re-educational purpose of the sentence, connected to the request for its execution in Italy, is countered by a specific punitive interest of the State on whose territory the crime was committed.
2.2. On this basis, the appealed judgment should be annulled with referral to the Court of Appeal of Milan for a new judgment in line with the recalled principles of law.
3. From the upholding of the third ground of appeal derives the loss of current relevance of the second ground of appeal.
P.Q.M.Annuls the judgment under appeal and remands for new judgment to the Court of Appeals of Milan.
Sends to the clerk's office for fulfillment of the requirements of Section 22(5) of the law.
Thus decided on 12/12/2024