A decision of another EU member state (Hungary) not to grant the extradition has no obstructive value for the purposes of the ne bis in idem principle.
The procedure on extradition is in fact not a proceeding on the merits of the charges brought against the extraditee, having only the purpose of enabling, through the surrender of the wanted person, the requesting state to realize the punitive claim against him. Indeed, the purpose of this procedure is to verify whether the conditions-usually provided for in international conventions or agreements-for cooperation exist. On the other hand, the ne bis in idem principle presupposes the exercise of "prosecution" at the national level with respect to certain unlawful acts: without examination on the merits, a decision to dismiss is irrelevant.
Italian Supreme Court
Sec. VI Criminal No. 9068 Year 2023
Hearing Date: 31/01/2023
President: DI STEFANO PIERLUIGI
Rapporteur: CALVANESE ERSILIA
JUDGMENT
On the appeal brought by.
KZ, born in Hungary on **/1975
against the judgment of 08/09/2022 of the Court of Appeal of Venice
Having regard to the acts, the measure complained of and iii appeal;
Hearing the report delivered by Councilor Ersilia Calvanese;
read the requests of the Public Prosecutor, in the person of Deputy Attorney General Raffaele Gargiulo, who concluded by requesting the dismissal of the appeal.
IN FACT
1. With the judgment indicated in the epigraph, the Venice Court of Appeals declared the existence of the conditions for extradition for trial purposes to the United States of America of ZK, who was wanted by that state for the crimes of criminal conspiracy, bank fraud, money laundering, forgery and use of false passport, travel to facilitate racketeering enterprises, committed from November 2010 to April 2013.
2. The interested party appealed against the above judgment in cassation, denouncing, through a defense counsel, the following grounds within the limits of Article 173 disp. att. cod. proc. penale.
2.1. Violation of the law in relation to the prohibition of ne bis in idem and Articles 649, 705 and 707 of the Code of Criminal Procedure, Article VI of the Bilateral Extradition Treaty, Article 54 of the Schengen Convention and 50 of the Charter of Fundamental Rights of the European Union. The Court of Appeals, with deficient and erroneous reasoning, did not consider the refusal of extradition already expressed by the Hungarian authorities on the same facts to be hostile. That decision resulted in the application of the prohibition of ne bis in idem, enshrined in the above-mentioned international sources (cf. the broad notion of "judgment," implemented by the Court of Justice in the Zupanijski and Koslowski cases) with reference to any proceedings "defined" on the merits by a judicial decision (what matters is that it be adopted by a body participating in the administration of justice).
2.2. Violation of the law in relation to the prohibition of ne bis in idem and Articles VI of the Bilateral Extradition Treaty, Article 54 of the Schengen Convention and 50 of the Charter of Fundamental Rights of the European Union. The Court of Appeals also did not consider the archiving ordered by the Hungarian authorities in connection with the same charges against the appellant to be obstructive, on the mistaken assumption that it was a procedural decision. On the contrary, the Hungarian authority ruled on the merits of the charges, finding that there was no evidence present to continue the proceedings (for a similar case on which the Supreme Court ruled, see Cass. no. 27384, 2022).
2.3. Violation of the law in relation to Articles 705, 698 of the Code of Criminal Procedure and 3 ECHR and the danger of degrading and inhuman treatment resulting from U.S. prison conditions. The Court of Appeals failed to rule on the question posed by the defense regarding prison conditions in the requesting state, despite the production of recent documents from recognized governmental associations noting serious critical issues in the U.S. prison system, both in terms of overcrowding and poor sanitary conditions. The Court of Appeals should have conducted a focused investigation to verify the applicant's prison treatment.
3. Having ordered the proceedings to be dealt with in writing, pursuant to Article 23, paragraph 8, of Decree Law No. 137 of October 28, 2020, conv. by I. December 18, 2020, as amended, in the absence of a request within the terms therein for oral argument, the Attorney General filed written conclusions, as set forth therein.
IN LAW
1. The appeal is inadmissible for the reasons set forth below.
2. Preliminary note should be taken of the communication received by the Chancery of this Court from the Jesolo Police Station of the extradite's escape from the place of house arrest on January 9, 2023, and of the searches carried out for his tracing, at present with negative results. As no certain news of the removal of the person whose extradition is requested from Italian territory has emerged in the meantime (Sec. 6, No. 8601 of 08/02/2022, Rv. 282912), the extradition procedure can be duly processed.
3. It should also be noted that both of the appellant's defense attorneys sent a deed of renunciation of the warrant on December 16, 2022. Reference must be made to the well-established case law of legitimacy, according to which, in cassation proceedings, the waiver of the mandate by the defense counsel, who has already been served with the notice of hearing, has no effect with reference to that hearing, which can be ritually held, the waiver defense counsel still being burdened with the defense of the defendant until the possible appointment of a public defender; it follows that the absence of a defense counsel at the hearing does not entail the obligation to appoint one ex officio to the plaintiff, nor does it constitute an obstacle condition to the regular celebration of the legitimacy trial (among many others Sez. 3, no. 31952 of 09/20/2016, dep. 2017, Rv. 2:70633).
4. That said, the first ground must be considered manifestly unfounded.
4.1. The Hungarian decision not to grant the applicant's extradition has no obstructive value for the purposes of the ne bis in idem principle. Indeed, the procedure on extradition is not a proceeding on the merits of the charges brought against the extraditee, having only the purpose of enabling, through the surrender of the wanted person, the requesting state to realize the punitive claim against him. Indeed, the purpose of this procedure is to verify whether the conditions-usually provided for in international conventions or agreements-for cooperation exist. The ne bis in idem principle, on the other hand, presupposes the exercise of "prosecution" at the national level with respect to certain unlawful acts.
4.2. Nor could the Hungarian decision to dismiss the proceedings against the appellant be considered relevant to the above principle. As the Court of Justice has repeatedly stated, in order to determine whether a decision constitutes a "decision definitively adjudicating a person," within the meaning of Article 54 CAAS, it must be ascertained that such a decision was rendered following an examination conducted on the merits of the case (see, to this effect, judgments of March 10, 2005, Miraglia, C-469/03, paragraph 30, and June 5, 2014, M, C-398/12, paragraph 28).
The Court of Justice has also clarified (Grand Chamber, June 29, 2016, C- 486/14) on the issue of ne bis in idem that a decision taken by the prosecutor not to pursue a criminal prosecution when no thorough investigation has been conducted for the purpose of gathering and examining evidence does not have obstructive value, and this is because it is a decision that has not been preceded by an examination carried out "on the merits" (in the present case, the failure to hear the victim and a possible witness, for the Court, constituted indications of the absence of such an investigation).
According to that arrest, the application of Article 54 of the CISA.; in such a case would have the effect of making it more difficult, or hindering, any real possibility of sanctioning in the member states concerned the unlawful conduct charged against the accused. On the one hand, the said decision to close the case was taken by the judicial authorities of a member state without any assessment of the unlawful conduct charged against the accused. On the other hand, the opening of criminal proceedings in another member state for the same facts would be jeopardized. Such a consequence, according to the Court, would manifestly conflict with the very purpose of Article 3(2)" TEU (in this sense, also judgment of March 10, 2005, Miraglia, C-469/03, paras. 33 et 34).
Therefore, the conclusion that the Court of Appeals drew with reference to the dismissal order issued by the Hungarian Public Prosecutor's Office, which was essentially based on the realistic impossibility of having the evidence and thus being able to successfully prosecute the appellant, must be considered correct.
5. Finally, as to prison treatment, the Court of Appeals examined the attached documentation and found it either irrelevant (since it related to the time of the Covid pandemic and is currently outdated) or significant (the most recent sources gave evidence of improved treatment). Thus, the criticisms appear nonspecific on the point.
6. The inadmissibility of the appeal is followed by an order to pay court costs. In view of the rulings of the Constitutional Court's judgment of June 13, 2000, No. 186, and considering that there are reasons for fault in the determination of the cause of inadmissibility, it must, likewise, be ordered that the appellant pay the sum, determined equitably, of 3,000.00 euros to the Fine Fund.
FOR THESE REASONS
Declares the appeal inadmissible and orders the appellant to pay the costs of the proceedings and the sum of three thousand euros in favor of the Fine Fund. Sends to the clerk's office for the formalities set forth in Article 203 disp att, cod. proc. pen. Thus decided on 31/91j2023.