The 30 days term from surrender to Italy for requesting retrial for in absentia convictions prior to 2014 set in Italian Code of Criminal Procedure constitutes a favorable term as well as an additional guarantee with respect to the ordinary term of 30 days from the date of effective knowledge of the conviction.
The rationale of the provision is based on the need to guarantee the person detained in foreign territory and, therefore, in conditions of greater difficulty, the possibility of fully exercising his or her defenses and, it is assumed, only after having arrived in the territory of the State: since it is therefore a term in favour of the defendant, nothing precludes the convicted person from presenting the request for having an appeal granted even before the surrender.
COURT OF APPEAL OF VENICE
SECTION THREE
SIGE 278/2023
The Court of Appeals of Venice, Third Section, composed of magistrates
dr. Priscilla Valgimigli
dr. Pietro Mondaini
dr. Andrea Battistuzzi
on the application pursuant to Article 175 of the Code of Criminal Procedure made by the Defense of:
TMR, born in **, Germany on **.1977;
following the hearing on 06/26/2023, considering its competence, observes the following.
ORDER
1. By petition dated 8/29/2022, the Defense (defense attorney Nicola Canestrini) made a request for granting appeal in the interest of MR and expounded that the latter had been convicted by judgment 49/12 of June 6, 2012 of the Court of Venice, pronounced in absentia, to nine years' imprisonment and a fine of €20,000.00 for the crimes of exploitation of prostitution, child prostitution as well as violation of the regulations on migration policies. The conviction had been upheld on appeal by ruling 324/2018 of this Court, pronounced on January 25, 2018; the appeal had been file by the court appointed lawyer.
Under this title, R was arrested in the UK for extradition purposes on July 31, 2022.
2. The defendant, as part of the aforementioned proceedings, had been declared a fugitive by decree of May 24, 2007, by the G.i.p. of theTribunal of Venice following the issuance on December 4, 2006, of a pre-trial detention order, unexecuted as per the report of vain searches by the Treviso Mobile Squad (minutes and acts April 13/24, 2007); all subsequent notifications had been made at the court appointed defender (...) pursuant to Article 165 of the Italian Code of Criminal Procedure.
By decree of June 29, 2010, the G.u.p. at the Court of Venice had declared the defendant to be in absentia (pursuant to art. 420-quater c.p.p.of the time), and the subsequent judgment of the Court was pronounced in absentia and, filed out of time (on February 11, 2013), notice of its filing was served pursuant to art. 548 c.p.p. to the public defender. Every subsequent act, the summons for appeal and the second instance judgment had been served on the public defender, who had not filed an appeal in cassation; the appeal judgment had become irrevocable on October 16, 2018.
The application for restitution in terms for filing appeal was filed in relation to the first instance judgment and the possibility of appealing against it, as the filing of an appeal by the court appointed defender of those who did not have knowledge of the proceedings could not be considered an effective defense.
3. The Venice Court of Appeals, in an order rendered de plano on 5.10.2022, declared it inadmissible.
Specifically, a chamber hearing was first set, then revoked with the issuance of a de plano decision, on the assumption of the existence of a cause of inadmissibility due to failure to attach the date of R's knowledge of the first- and second-degree convictions.
The order reads, "The application alleges that the defendant was arrested for this case in the United Kingdom at the end of July (July 31 allegedly). But of this circumstance there is no evidence in the record and it appears in itself at least doubtful in light of the fact that the extradition procedure documented by the party bears a later date(August 1, 2022). Thus, there is at present no possibility of a reliable assessment on the relevant point of the day from which to start counting the 30-day period."
Finally, the Court noted how the reference in the petition to the identity between R's case and that of another co-defendant in the same proceedings, such AO, who had benefited from remittance as well as immediate release, could not be relevant given that, unlike R, AO had already been surrendered to Italy at the time of the petition, while R was still confined in the UK.
4. The Defense made an application to the Court of Appeal to revoke the order declaring inadmissibility, clarifying the course of the extradition proceedings in these terms: R was arrested on 31.07.2022 in the United Kingdom on the basis of a European Arrest Warrant issued by Italy in the year 2021, precisely for the execution of the contumacious sentence that was the subject of the application pursuant to art. 175 co. 2 of the Code of Criminal Procedure; however, the EAW in question - following the exit of the United Kingdom from the European Union - could no longer form the basis of the request for surrender, which is why it was necessary to issue a new Arrest Warrant (not "European") dated 01.08.2022, which again bears the indication of the default conviction referred to in the application for restitution in terms. In a decision dated 12.10.2022, the Court of Appeals declared a non-litigation with respect to the petition, since it was a measure that could be appealed in the ordinary forms.
5. Against these decisions the Defense appealed to the Supreme Court of Cassation, objecting, first, to the violation of procedural rules, the Court of Appeals having decided without cross-examination and, second, objecting to the undue reversal of the burden of proof with respect to the control of the timeliness of the application for remission in terms.
6. In a decision dated 4/14/2023, the Supreme Court annulled the order dated 10/5/2022, censuring the territorial court's decision to proceed in the absence of cross-examination as being based on the failure to allege the period of knowledge of the enforcement title, and thus substantiating an undue reversal of the burden of proof. The Supreme Court observed that the defendant had been arrested on 7/31/2022, there was thus a decisive element of knowledge for the purposes of assessing the timeliness of the petition filed the following August29and in any case argued that if the territorial court had had any doubt as to the timeliness of the petition, it should have exercised investigative powers of its own motion by enhancing the principle of evidence emerging from the record.
7. At today's hearing, the public prosecutor referred to the opinion in the record, with a request for a declaration that the petition was inadmissible since the initial deadline under Article 175 paragraph II bis of the Code of Criminal Procedure for its submission had not yet expired. The Defense represented that the convicted person was still confined under the extradition warrant,filed an order in which the defendant was released on bail on 22.9.2022, with the imposition of precautionary prescriptions, by the U.K. Public Prosecutor's Office and insisted that the request be granted.
8. On the merits, the request is timely and well-founded and deserves to be granted.
It is worth premising that the term fixed in the last part of Article 175 paragraph II bis Italian criminal procedure code (cpp) constitutes a favorable term as well as an additional guarantee with respect to the ordinary term of 30 days from the date of actual knowledge of the measure provided for in the first part of the same article.
And indeed, the Supreme Court has repeatedly clarified that the ratio of the provision is based on the need to ensure the person detained in foreign territory and, therefore, in conditions of greater difficulty, the possibility of fully exercising their defenses and, it is assumed, only after arriving in the territory of the State (see most recently Cass. Sec., VI, no. 9842/2023). Since it is therefore a favorable term, the failure to make it effective does not preclude the convicted person from making the request under Article 175 of the Code of Criminal Procedure even before the actual delivery, a circumstance that occurred in the case at hand. The request for restitution within the time limit was filed on 8/29/2022 and the arrest took place on 7/31/2022, so the 30-day time limit from actual knowledge of the enforcement order was met.
It is also worth premising that the regime applicable in the present case isthat of remission in terms pursuant to Article 175 II paragraph c.p.p. as invigorated before Law 67/2014, since the declaration of default dates back to 29.6.2010 (see Cass. no. 36848/2014 and Cass. no. 14001/2020).
That being said, the prerequisites for the remittance in terms invoked by the Defense exist, since it does not appear that the defendant had knowledge of the proceedings against him, not having personally been notified of any act of the same, not having elected domicile, having been declared a fugitive and therefore not having had personal knowledge even of the vacatio in iudicium since all the acts subsequent to the declaration of absconding were notified to the public defender, nor does it appear from the records that the attorney had contact with his client.
The header of the first and second instance sentences also confirms this fact, since the defendant is characterized as a fugitive and contumacious and it appears that he was defended ex officio by Lawyer **.
Neither from the first instance judgment nor from the order of pre-trial detention in prison do any concrete elements emerge to believe that R had knowledge of the establishment of criminal proceedings against him. In fact, there is no evidence of searches or arrests against the defendant, whose identification was arrived at in the course of telephone tapping and roadside monitoring activities, as is evident from the pre-trial detention order and the judgments obtained in the record. Finally, not even the declaration of absconding of the defendant, assisted by a public defender, constitutes, per se, a suitable element to exclude the lack of blameless knowledge of the proceedings since it has not emerged, as already noted, that the public defender has established, as part of the professional relationship, an effective contact with the assisted or has in any case tracked him down. And indeed, the state of absconding is not an unambiguous element, as it can be linked to situations of a different nature and origin, not being diper per se exhaustively nor unambiguously suitable to exclude the lack of blameless knowledge of the proceedings in the case of a request for remittance in terms for the appeal of default judgment(Cf. Cass. Sec. VI, Judgment No. 17338/2021-Cass. Sec. VI, No. 4929, Jan. 10, 2019-Cass. Sec. VI, No. 14743/2018).
Therefore, the conditions of the law being met, the immediate release of the defendant should be ordered, unless detained for another cause.
P.Q.M.
Having regard to Articles 627 and 175 of the Code of Criminal Procedure;
Ruling on the referral of the Court of Cassation ordered by judgment dated 4/14/2023;
orders that TMR, born in **, Germany on **.1977, be remanded in terms to file an appeal against Judgment No. 49/12 of 6.6.2012 of the Court of Venice, confirmed on appeal by Judgment No. 324/2018 of this Court, pronounced on 25.1.2018.
Orders the immediate release of TMR, unless detained for other cause. Sends to the Public Prosecutor General for execution.
Venice, June 26, 2023