The ground for refusal related to the configurability, in the requested State, of facts committed in whole or in part in its territory, or in a place assimilated to it, cannot be opposed in the case where the problems of inter-jurisdictional coordination relating to the pendency of criminal proceedings for the same facts in different judicial Authorities of several member States of the European Union find their own, albeit provisional, solution as a result of the assumption of the coordination of investigations by the EPPO, with the consequent allocation, within it, of competences among the member states and the possible exercise of the right of avocation under Art. 27 of the Regulation, after consultation, where appropriate, with the competent authorities of the Member State, or States, concerned.
In the occurrence of such an eventuality, it must be considered that the coordination requirements underlying the provisions relating to the consultation mechanism set up by the aforementioned Framework Decision 2009/948/JHA of November 30, 2009 on prevention and settlement of conflicts concerning the exercise of jurisdiction in criminal proceedings have already found, or are destined to find, a temporary point of equilibrium for the purposes of the conduct of investigations and subsequent determinations already within the prosecuting body established at the European level.
Only in the event that a conflict arises between the EPPO and the National Prosecutor's Office regarding the possible attraction of the criminal conduct that is the subject of the E.A.M. to the sphere of application of the European Public Prosecutor's Office's own jurisdiction and its exercise pursuant to Articles 22, 23 and 25, paras. 2 and 3, the resolution of the conflict could be referred Legislative Decree Feb. 2, 2021, no. 9, ex art. 16 to the determinations of the General Prosecutor at the Court of Cassation, as the judicial authority identified as the one competent to decide, at the national level, on the conflict, if any, created between the European Public Prosecutor's Office and one or more Public Prosecutors' Offices, in implementation of the provisions of art. 25(6) of EU Regulation 2017/1939.
The party has no interest in requesting the optional refusal to surrender, given that the same is aimed at protecting the prerogatives of the executing state as a function of conflict resolution: in any case, it must be highlighted that the prerequisites for the configurability of this ground for refusal are pacifically identified in the jurisprudence of this Supreme Court, which, in this regard, has established the principle according to which such a hostile condition must emerge with certainty from the acts and is recognizable when a part of the conduct, even minimal and consisting of fragments lacking the requirements of suitability and unequivocalness required for the attempt, provided that it is preordained to the achievement of the criminal objective, has occurred in the Italian territory.
The realization of the crime in the Italian territory must result with certainty by reason of a factual framework that can be deduced in a way that cannot be disputed from the same elements offered by the issuing authority or from those provided at the time of integration pursuant to Law No. 69 of 2005, Article 16, the mere assumption that the crime has been carried out in whole or in part in the territory of the State not being sufficient for this purpose.
Such an obstructive condition is linked, evidently, to the implications of the principle of territoriality provided for in Article 6 c.p., paragraph 2, according to which, for the purposes of asserting Italian jurisdiction in relation to crimes committed in part abroad, it is sufficient that in the territory of the State even only a fragment of the conduct occurred, understood in the naturalistic sense, thus, any act of the criminal process, provided that the same is appreciable in such a way as to link the part of the conduct carried out in Italy to that committed in the foreign territory.
The ascertainment of such a ground for refusal presupposes, however, that on Italian territory at least part of the conduct for which specifically prosecution is taking place abroad has taken place, according to the description that of the relevant factual substratum of the crime hypothesis that is the subject of the request for surrender is offered in the M.A.E. from the issuing state.
It is necessary, in other words, that the deliberative scrutiny, in this regard carried out by the Judges of the merits, allows for the verification of the existence of "the same criminal conduct" carried out by the "same person," even if only in part, in the territory of the State.
It must be, therefore, a segment of the same criminal conduct that, "naturalistically" understood and considered in unity with the subsequent or previous acts committed abroad, integrates a hypothesis of an attempted or consummated crime. It does not matter, therefore, the commission on Italian territory of other crimes, unrelated to the object of the Euromandate, even if attributable to the same type of crime: what is necessary, in the perspective proper to the hostile condition under consideration, is that on the national territory at least a part of the conduct inherent in the crime for which the surrender is requested has occurred, pursuant to art. 6 of the Criminal Code.
Court of Cassation
Criminal Sec. VI, Sent., (date of hearing 31/05/2023) 01/06/2023, no. 23941
Dr. PIERLUIGI S. - Pres.
Dr. CALVANESE E. - Cons. -
Dr. VIGNA M.S. - rel. Cons. -
Dr. TRAVAGLINI DI NICOLA P. - Cons.
Dr. DI GIOVINE O. - Cons. -
pronounced the following:
JUDGMENT
On the appeal brought by:
A.A., born on (Omissis);
against the judgment of the Court of Appeals of Naples dated 04/27/2023;
Having regard to the acts, the contested order and the appeal;
Hearing the report delivered by Councilor Maria Sabina Vigna;
heard the submissions of the Public Prosecutor, in the person of Deputy Prosecutor General, Epidendio Tomaso, who requested the dismissal of the appeal;
Hearing of attorney GL in place of attorney RA, who insisted on the appeal.
Conduct of the trial.
1.By the judgment under appeal, the Court of Appeal of Naples ordered the surrender of A.A., to the competent authorities of the State of Germany, in execution of the European Arrest Warrant issued on March 6, 2023, by the European Public Prosecutor's Office in Munich, to be subjected to criminal proceedings for the crimes of tax evasion in criminal association integrating the case of fraud, including fraud affecting the financial interests of the European Community, pursuant to the Convention of July 26, 1995, referred to in Art. 2(2) of Council Framework Decision 2002/584/JHA of June 13, 2002, committed in Germany from the year 2018 to the year 2021, making the surrender subject to the condition that the person, after being brought to trial, be returned to the Italian state to serve there the sentence or security measure depriving him of his liberty that may have been pronounced in the issuing member state.
Specifically, A.A. is under investigation because, through three of his inactive companies based in (Omissis), he allegedly aided and abetted the crime of co-defendant B.B., managing director of Fever Auto Gmbh based in (Omissis), relating to the issuance and use in Germany of invoices for nonexistent transactions.
The Court, in particular, ruled out the existence of the hypothesis of Law No. 69 of 2005, Article 18-bis, paragraph 1, letters a) and b) based on the finding that the European arrest warrant concerns crimes committed in whole or in part in Italy and that criminal proceedings are under way against A.A. in Italy for the same facts. The judgment under appeal points out that none of the companies listed in the European arrest warrant issued against him is based in Italy and that there is no lis pendens, which originated from the establishment of criminal proceedings pending at the Turin Public Prosecutor's Office against A.A. for the crime referred to in Legislative Decree No. 74 of 2000, art. 8 (because, in his capacity as owner of the sole proprietorship A.A, based in Portico di Caserta, in order to allow co-defendants, other than B.B., to evade income or value-added taxes, issued invoices for subjectively nonexistent transactions and related to the intra-EU purchase of vehicles).
At the arrest validation hearing, A.A. did not give consent to surrender and did not waive the principle of specialty.
2.Against the judgment, A.A. is appealing for cassation, through his defense attorneys, alleging, as a single ground, violation of the law in relation to Law No. 69 of 2005, Art. 18(a)(a), first part, and (b).
The M.A.E. itself hypothesizes that "there is a suspicion that the suspects are running a criminal association, a VAT fraud scheme, in connection with at least two member states, namely Germany, Italy, Romania and Latvia." The aforementioned fact would be sufficient, ex se, to deem the prerequisite for optional refusal to exist, regarding conduct committed in whole or in part on Italian territory. From the factual reconstruction, there emerged a conduct, chargeable to A.A., of concurring participation in the work of B.B., hypothetically translated into the deliberate provision by A.A. of three corporate structures, one of which was a sole proprietorship, as made recipients of the false invoicing activity carried out by B.B., in order to make them appear as tax-exempt purchasers of cars. It emerged, therefore, that the principal, as an accomplice and "gang member," had been involved in the VAT evasion of Fever auto Gmbh, regarding 20 fraud offenses with a damage amounting to 1,054,428.05 euros.
On this criminal conduct of a concurrent nature, the defense pointed out and documented evidence that, in the case of A.A, for the same facts that were the subject of the European arrest warrant, criminal proceeding No. 15963/2021 had already been registered with the Turin Public Prosecutor's Office, in which the facts in dispute were revelatory of the same and unitary criminal design on the part of the suspects, incorporating the applicant's conduct - as challenged in the European arrest warrant - and the continuation thereof - as challenged in the aforementioned criminal proceeding - within the same fact of the crime of tax fraud, in the area of the marketing of motor vehicles.
A.A., in particular, is under investigation at the Turin Public Prosecutor's Office for the crime under Legislative Decree No. 74 of 2000, Art. 8 because, in order to allow the sole or de facto directors of the company UX.STYLE MOTOR Srl with registered office and tax domicile in (Omissis), to evade income or value-added taxes, he issued invoices for subjectively non-existent transactions related to the intra-EU purchase of vehicles for the years 2018 to 2021.
Explicative of the unity of the conduct in A.A. is the circumstance that among the cars covered by the invoices issued by the German company whose managing director was B.B., and pertaining to the fictitious intra-EU tax-free sale to the company based in Romania and administered by A.A., were the same cars that the Romanian company subsequently resold to the sole proprietorship A.A, based in Portico di Caserta, and the latter, then sold to the company based in (Omissis), which was liable for the crime under Legislative Decree No. 74 of 2000, art. 2 because it used invoices for subjectively nonexistent transactions, relating to the intra-EU purchase of the aforementioned vehicles issued by the fictitious importer A.A.
Fourteen additional invoices are, in addition, produced, relating to commercial transactions of motor vehicles involving the company based in (Omissis) and the company A.A., also purchased from the company based in (Omissis).
The defense attaches, in particular, the invoice for a car subject to fictitious intra-community sale from the German company of B.B. to the Romanian company of A.A.; This car, then, through the sole proprietorship of the aforementioned, based in Italy, was sold to MV Fleming Srl unipersonal based in (Omissis).
It is, therefore, necessary to have the appellant's presence on Italian territory in order to prepare the defense in the proceedings pending in Turin, where evidence emerges of the existence of a system of fraud broader in scope than that alleged in the M.A.E., directed at defrauding VAT in the marketing of the cars, and implemented through paper companies for tax-exempt purposes (which only formally purchased the car from the EU supplier), but which found implementation continuation precisely with the resale operated by A.A. to the Italian buyer (for which there is already a criminal proceeding in itinere), with advantage for tax purposes of both parties involved and in a view of clear unity ab origine of the criminal design The Court of Appeal of Naples should, therefore, have opposed the optional refusal, in the presence of an ontological functional link between the contested concurring conduct of A.A. and B.B, the subject of the M.A.E., and the consequent and unitary commission in Italian territory of the fraud crimes, having as their object precisely the resale of those cars covered by the false invoicing activity carried out by third parties and for which there are criminal proceedings against A.A. pending at the Turin Public Prosecutor's Office, prior to the issuance of the M.A.E.
Reasons for the decision
1. The appeal is unfounded.
2. WHEREAS, the party has no interest in requesting the optional refusal to surrender, given that the same is aimed at protecting the prerogatives of the executing state as a function of the settlement of the conflict (see in motivation Sez. 6, no. 15866 of 04/04/2018, Spa are, Rv. 272912 - 01).
3.In any case, it should be noted that the prerequisites for the configurability of this ground for refusal are pacifically identified in the jurisprudence of this Supreme Court, which, in this regard, has established the principle that such a hostile condition must emerge with certainty from the documents (Sez. 6, no. 27825 of 30/06/2015, Ignat, Rv. 264055) and is recognizable when a part of the conduct, even minimal and consisting of fragments lacking the requirements of suitability and unequivocalness required for the attempt, as long as preordained to the achievement of the criminal objective, has occurred on Italian territory (ex multis Sez. 6, no. 40831 of 18/09/2018, P., Rv. 274121; Sez. 6, no. 5548 of 01/02/2018, Manco, Rv. 272198; Sez. 6, no. 13455 of 18/03/2014, Maligi, Rv. 261097).
The realization of the crime in the Italian territory must result with certainty by reason of a factual picture that can be deduced in a way that cannot be disputed from the same elements offered by the issuing authority or from those provided during integration pursuant to L. No. 69 of 2005, Art. 16 (Sec. 6, No. 45669 of 12/29/2010, Llanaj, Rv. 24897), the mere hypothesis that the crime took place in whole or in part in the territory of the State not being sufficient for this purpose (Sec. 6, No. 17704 of 04/18/2014, Araujo Gomez, Rv. 259345).
Such an obstructive condition is evidently related to the implications of the principle of territoriality provided for in Art. 6, Criminal Code, paragraph 2, according to which, for the purposes of asserting Italian jurisdiction in relation to crimes committed in part abroad, it is sufficient that in the territory of the State even only a fragment of the conduct has occurred, understood in a naturalistic sense, thus, any act of the criminal iter, provided that the same is appreciable in such a way as to link the part of the conduct carried out in Italy to that committed in the foreign territory (Sec. 6, no. 56953 of 09/21/2017, Guerini, Rv. 272220).
The establishment of such a ground for refusal presupposes, however, that in the Italian territory at least part of the conduct for which specifically is being prosecuted abroad has taken place, according to the description that of the relevant factual substratum of the crime hypothesis object of the request for surrender is offered in the M.A.E. from the issuing state.
It is necessary, in other words, that the deliberative scrutiny, in this regard carried out by the Judges of the merits, allows for the verification of the existence of "the same criminal conduct" carried out by the "same person," even if only in part, in the territory of the State.
It must be, therefore, a segment of the same criminal conduct that, "naturalistically" understood and considered in unity with the subsequent or previous acts committed abroad, integrates a hypothesis of an attempted or consummated crime (Sect. F., No. 34572, Aug. 28, 2008, Kaimovsy Sas or, non mass.).
Therefore, the commission in Italian territory of other crimes, unrelated to the object of the Euromandate, even if attributable to the same type of crime, is not relevant (Sec. 6, no. 48946, Dec. 4, 2015, Certan Petru, non mass.).
What is required, from the perspective proper to the hostile condition under consideration, is that at least part of the conduct inherent in the crime for which surrender is requested has occurred on the national territory, pursuant to Article 6 of the Criminal Code.
Entirely different, on the other hand, must be considered the hypothesis in which it is ascertained the presence of criminal conduct that, from a naturalistic and anthological point of view, is actually distinct and autonomous and it is proven that the one for which proceedings are being conducted, in all the elements required to integrate it, was consumed exclusively abroad, since in the face of such an eventuality it cannot be doubted that there is no Italian jurisdiction (Sez. F., no. 34572 of August 28, 2008, Kaimovsy Sas o, cit.).
3.1 Within this perspective, it should be noted how the territorial court correctly carried out the discretionary appreciation of merit required of it, ruling out that the crime for which the M.A.E. was issued was committed, albeit for a fragment in Italy, A.A.'s companies having issued nonexistent invoices being based abroad, and holding that the Turin Public Prosecutor's Office was proceeding for a different fact than the one for which A.A. was requested to be handed over, since the company of A.A. issuing non-existent invoices, in this case, was based in Italy.
4.In another respect, it should then be noted, how from the procedural documents, and from the very grounds of the contested decision, it appears that the European Arrest Warrant in question was issued by the European Public Prosecutor's Office in Munich on March 6, 2023, therefore pursuant to Article 33, par. 2, of EU Council Regulation 2017/1939 of October 12, 2017 on the implementation of enhanced cooperation on the establishment of the European Public Prosecutor's Office ("EPPO"), on the assumption that these are crimes falling within the material, personal and territorial jurisdiction of that judicial body pursuant to Articles 22, par, and 23 of the aforementioned EU Regulation. In this regard, it is understood from a reading of the European Arrest Warrant that the EPPO's jurisdiction to act exists due to the fact that the suspects, which include today's appellant, are suspects for a criminal organization aimed at committing VAT fraud crimes. Pursuant to Article 33(2) of the aforementioned European Regulation, it is provided that "where it is necessary to arrest and surrender a person who is not in the Member State in which the Deputy European Public Prosecutor in charge of the case is located, the latter shall issue or request the competent authority of that Member State to issue a European Arrest Warrant in accordance with Framework Decision 2002/584/JHA." It should also be recalled that of Legislative Decree No. 9 of February 2, 2021, Article 15 by which the enhanced cooperation on the establishment of the European Public Prosecutor's Office "EPPO" was implemented, provides, in Paragraph 1, that "The surrender procedures relating to European Arrest Warrants issued by Deputy European Public Prosecutors are governed by Law No. 69 of April 22, 2005." Paragraph 2 of that provision further states that "For the purposes of the passive surrender procedure, 'issuing member state' means the member state of the European Union where the Deputy European Public Prosecutor who issued the European Arrest Warrant is located."
As a result of the European Commission's Implementing Decision (EU) 2021/856 of May 25, 2021, a start date of June 1, 2021 was set for the operation of the new supranational judicial body of the European Public Prosecutor's Office for the purposes of investigation and prosecution in the matters specified in the aforementioned EU Regulation 2017/1939.
It follows that the ground for refusal related to the configurability, in the requested state, of facts committed in whole or in part in its territory, or in a place assimilated to it, cannot be opposed in cases where the problems of interjurisdictional coordination related to the pendency of criminal proceedings for the same facts at different judicial authorities of several EU member states find their own, albeit provisional, solution as a result of the assumption of the coordination of investigations by the EPPO, with the consequent allocation, within it, of competences among the member states and the possible exercise of the right of avocation under Art. 27 of the Regulation, after consultation, where appropriate, with the competent Authorities of the Member State, or Member States, concerned: avocation from the exercise of which derives the further effect that the competent judicial Authorities of the other Member States have the obligation to transfer the file to EPPO and to refrain from further acts of investigation in relation to the same crime. In the occurrence of such an eventuality, in fact, it must be considered that the coordination requirements underlying the provisions relating to the consultation mechanism set up by the aforementioned Framework Decision 2009/948/JHA of November 30, 2009 on prevention and settlement of conflicts relating to the exercise of jurisdiction in criminal proceedings have already found, or are destined to find, a temporary point of equilibrium for the purposes of conducting investigations and subsequent determinations already within the prosecuting body established at the European level. It should also be considered that the jurisdiction exercised in the case at hand by the European Public Prosecutor's Office is based on Articles 22(1) and (2), 23, 120(2) of the aforementioned Regulation, read in conjunction with Articles 2 and 3 of Directive (EU) 2017/1371 of the European Parliament and of the Council of July 5, 2017, on the fight against fraud affecting the financial interests of the Union by means of criminal law: a jurisdiction, this one, clearly spelled out in the E.A.M, and the determination of which has not been the subject of specific censure by the appellant, appearing, at present, to be consistent with the reference to crimes of criminal conspiracy to defraud in the field of VAT. Only in the event that a conflict arises between the EPPO and the National Public Prosecutor's Office as to whether the criminal conduct covered by the E.A.M. should be drawn within the scope of the European Public Prosecutor's Office's own jurisdiction and its exercise pursuant to Articles 22, 23 and 25(2) and (3), could the resolution of the conflict be referred Legislative Decree No. 2 February 2021, no. 9, ex art. 16 to the determinations of the General Prosecutor at the Court of Cassation, as the judicial authority identified as the one competent to decide, at the national level, on the possible conflict created between the European Public Prosecutor's Office and one or more Public Prosecutors' Offices, in implementation of the provisions of art. 25(6) of EU Regulation 2017/1939.
5. The dismissal of the appeal is followed, pursuant to Article 616 of the Code of Criminal Procedure, by an order that the appellant pay the costs of the proceedings. The Clerk's Office will see to the completion of the duties set forth in Law No. 69 of 2005, Article 22, paragraph 5.
P.Q.M.
Dismisses the appeal and orders the appellant to pay the costs of the proceedings.
Directs the Clerk's Office to carry out the duties set forth in Law No. 69 of 2005, Article 22, Paragraph 5.
Conclusion
Thus decided in Rome, May 31, 2023.
Filed in the Registry on June 1, 2023.