An arrest fort an Interpol red notice by Italian police for extradition purposes is not lawfully made for an offense for which the foreign state's law provides for the death penalty, nor may a provisional coercive supervision measure be applied for the same offense.
SUPREME COURT OF CASSATION
SIXTH CRIMINAL SECTION
(date of hearing 15/05/2024) 06/06/2024, no. 22945
Dr. RICCIARELLI Massimo - President
Dr. CAPOZZI Angelo - Rapporteur
pronounced the following
JUDGMENT
On the appeal brought by.
A.A., born in G (P) on (Omissis)
against the order dated 03/29/2024 of the Court of Appeal of Bologna.
Having regard to the acts, the contested order and the appeal;
Hearing the report made by member Angelo Capozzi;
Hearing the Public Prosecutor, in the person of Deputy Attorney General Silvia Salvadori, who concluded by requesting the dismissal of the appeal;
Hearing defense counsel MB, who asked that the appeal be granted.
Course of the trial.
1. By the order in the present case, the Bologna Court of Appeal, in the person of the Deputy Councilor, validated the arrest of A.A. in relation to the crime of “attempted murder/riot” and ordered the precautionary measure of custody in prison “in relation to the crime under articles 575 and 576 of the Criminal Code as per arrest warrant No. NIL issued on July 6, 2012 by the District Court of Gujrat (Pakistan).”
2. A.A.'s defense counsel appealed against the order pursuant to Article 719 of the Criminal Code, citing the following grounds:
2.1. In the first plea, violation of the law and defective reasoning in that, pursuant to articles 714, paragraph 3 and 705, paragraph 2, lett. c) of the Code of Criminal Procedure, the ordered precautionary measure was precluded because the crime referred to in the arrest warrant is abstractly punishable by capital punishment. This is clear from the note of the Ministry of the Interior attached to the appeal, according to which the arrest warrant is for the crime of murder for which Pakistan alternatively imposes the death penalty or imprisonment for life, and in our system there is an absolute prohibition of extradition if there is reason to believe that the person will be subjected to acts that constitute a violation of one of the fundamental rights of the person within the meaning of Article 705, paragraph 2 lett. c) of the Code of Criminal Procedure. Moreover, the only mitigation to this prohibition, which can be found in Article 698, paragraph 2, of the Code of Criminal Procedure, does not apply in the case under consideration since an irrevocable sentence of conviction has not yet been pronounced against the appellant, being the appellant sought for trial purposes and having to take into account Constitutional Judgment No. 223 of 1996, which imposes an absolute guarantee of exclusion of the application of the death penalty, being constitutionally inadmissible the “sufficient assurances” referred to in the former Article 698, paragraph 2, of the Code of Criminal Procedure.
Moreover, European jurisprudence has also affirmed that even the mere expectation of the execution of capital punishment itself constitutes inhuman and degrading treatment.
The Court of Appeals, in recalling the compatibility of life imprisonment with that provided by our system under articles 575,576 of the Criminal Code, omitted to consider the alternative penalty constituted by the death penalty.
2.2. With the second plea, violation of art. 178 lett. c) cod. proc. penale and 143, par. 2, 292 cod. proc. penale for failure to translate the measure that ordered the personal precautionary measure into the language known by the extradite alloglotta, it being known that the arrested did not know the Italian language and not being able to give importance to the fact that he participated in the hearing to validate the arrest in the presence of an interpreter.
2.3. By the third plea, failure to state reasons in relation to the description of the facts, the correspondence between the crime of murder referred to in the arrest warrant issued by Pakistan, the arrest made by the judicial police pursuant to Article 716 of the Code of Criminal Procedure for the crime of attempted murder, and the request for application of the coercive measure formulated by the Attorney General's Office for “crimes” of attempted murder.
2.4. With the fourth plea, violation of procedural law and defect in the statement of reasons in relation to the failure to rigorously assess the danger of flight, taking into account that the applicant has been permanently residing for more than two years at the same home in the province of Ferrara, is employed with an open-ended employment contract with the qualification of bricklayer, has been legally residing in the national territory since 2018 and, most recently, has had his application for suspension of the denial of the issuance of a residence permit for special protection granted. Nor, on the other hand, can said danger be inferred from the seriousness of the offense alone;
2.5. By the fifth plea, violation of the law and defect in the statement of reasons in relation to the failure to justify regarding the request for house arrest.
3. The Attorney General filed a brief in support of the dismissal of the appeal.
Reasons for the decision
1. The appeal is well founded in relation to the first absorbing ground, which can be examined together with the related third ground.
2. It appears from the text of the order under appeal, beyond the expressive discrepancies justifiably denounced in the third ground of appeal, that, following the memo of 3/27/2024 from the Ministry of the Interior, the appellant was taken into custody by the judicial police as the addressee of an arrest warrant issued on July 6, 2012 by the Gurjat District Court in connection with the crime of murder committed in the village of Chak Hussain, Gujrat district, on (Omissis) for which Pakistani law provides as the maximum possible penalty the death penalty or life imprisonment. Articles 302/109/148/149 of the Pakistani Penal Code referred to in Ministry of Interior Notice No. (Omissis)/ARD-Interpol are indicated to this effect.
In examining the existence of the prerequisites for the application of the precautionary measure requested by the Attorney General, the order notes, in addition to the manifest intention of the Pakistani state to formulate a request for extradition, that “the punishment of the crime in relation to which the precautionary measure is to be ordered is in conformity - with regard to that of life imprisonment - with that provided by the Italian system under articles 575 and 576cod. pen. (use of weapon).”
2. There can be no doubt, therefore, that the appellant was arrested for the crime of voluntary manslaughter punishable, in the Islamic Republic of Pakistan, where it was committed, by the death penalty or, alternatively, by life imprisonment. The arrest for that offense was validated by the Italian Judicial Authority, and the provisional protective measure of detention in prison was applied for the same offense.
Therefore, the Court of Appeal's failure to take into consideration - which limited itself to finding the alternative sentence of life imprisonment compatible - the relevant provision in the Islamic Republic of Pakistan's legal system for the crime in respect of which he was prosecuted/death penalty, as, moreover, expressly indicated in the aforementioned ministerial note, must be censured.
3. It is the opinion of this court that same provision cannot legitimize the validation of the arrest made by the judicial police and the consequent coercive precautionary measure applied by the Court of Appeals in the contested order.
4. The orientation of legitimacy, recalled by the Attorney General, expressed by Sect. 6, no. 4344 of 16/01/2004, Rafik, Rv. 228377 in a similar case of a crime punishable by capital punishment, according to which “on the subject of extradition for foreign countries, the validation order issued by the President of the Court of Appeals pursuant to Article 716, third paragraph, of the Code of Criminal Procedure cannot be shared. is exhausted in a cartular verification on the existence of the conditions legitimizing the arrest with regard to the fact - crime contested, the evidentiary basis of the request and the existence of the custodial title issued by the requesting State, not investing instead the conditions for a favorable extradition judgment, and specifically those referred to in articles 698 and 705, second paragraph cod. proc. penal, which are the responsibility of the Court of Appeals at the next stage of the proceedings.” It was argued in that decision that “the control that must be carried out for the purpose of validation is a control of a different type from that carried out under Article 391 of the Code of Criminal Procedure, both with reference to the terms for validation, and with regard to jurisdictional guarantees, and finally with regard to the adoption of a coercive measure, and it is exhausted in a cartular verification, which does not affect the outcome of the extradition proceedings in the least. It ultimately represents a mere deliberation on the existence of the conditions legitimizing the arrest, with regard to the fact of the crime charged, the evidentiary basis of the request and the existence of the custodial order, issued by the requesting state (Cass. Sez. 6 no. 2035 of 23/7/99 rv. 214933; no. 2416 of 12/1/00 rv. 215311). No verification, therefore, is the responsibility of the President of the Court of Appeals of the conditions for a favorable extradition ruling, namely those in Articles 698 and 705 co. 2 of the Code of Criminal Procedure, so much so that Art. 716 recalls co. 2 of Art. 715 (existence of a measure restricting personal liberty, i.e. a conviction; description of the fact - crime and identification of the extradite; danger of flight) and not also Art. 714 co. 3 c.p.p.”
According to a different perspective was expressed by Sec. 6, 16/4/2009 No. 25543, Akbari, non. mass, which ordered the annulment of the validation of the arrest and coercive measure affirming that “if the crime for which the requesting state intends to submit an extradition request is punished, according to that system, with the death penalty, the circumstance is an obstacle to extradition and, therefore, to the adoption of coercive measures functional to the same (sent. C. Const. no. 223/96 and art.714 c.p.p., para. 3).”
4. According to this Court, the functional perspective underlying the latter orientation, which links precautionary and coercive measures with the extraditional purpose, must be shared, considering the placement of the provisions of Art. 716 of the Code of Criminal Procedure within the general rules provided by Art. 714(2) and (3) of the Code of Criminal Procedure on precautionary measures for extradition purposes: the second paragraph establishes the pre-eminent need for the coercive measure to ensure extraditionary delivery; the third paragraph places a prohibition on the application of the coercive measure where there is evidence to believe that a judgment favorable to extradition may be issued. In this way, the two provisions thus express the strict functional nature, emphasized by the shared recalled guideline, of the coercive measure - and of the prodromal arrest by the judicial police - to the extradition procedure.
Moreover, on the legitimacy of the arrest carried out by the judicial police, the relevance of the penalty provided by the system of the foreign state for the crime for which it is being prosecuted, is designated by art. 716, paragraph 1, cod. proc. penal, which for the arrest by the judicial police indicates the need that, in addition to urgency, the conditions provided by art. 715, paragraph 2, cod. proc. penal, including the specification of the penalty provided for the crime for which it is being prosecuted, must exist. Equal importance said penalty has for the adoption of the subsequent provisional coercive measure, based on the subsequent paragraph 3 of the same Article 716 of the Code of Criminal Procedure, which, providing for the verification by the president of the court of appeals of the recurrence of the conditions, can only refer, again, to the provisions of the aforementioned Article 715 of the Code of Criminal Procedure.
5. Therefore, the verification of the recurrence of the conditions of the lawfulness of arrest for extradition purposes and of the prerequisites for the application of the coercive measure includes the prognosis, as the record stands, by the court of appeals of a judgment in favor of surrender.
Therefore, the principle expressed in Article 698, paragraph 2, of the Code of Criminal Procedure must be considered, for what is relevant in the present case, introduced by Article 5, Paragraph 1, of Law No. 149 of July 21, 2016, following the well-known Constitutional Judgment No. 223 of 1996, according to which “ if the fact for which extradition is requested is punishable by the death penalty according to the law of the foreign state, extradition may be granted only when the judicial authority ascertains that an irrevocable decision has been adopted that imposes a penalty other than the death penalty and if this has been imposed, it has been commuted to a different penalty (...).”
According to us, the aforementioned principle is also relevant in the phase prior to the decision on surrender, that is, in the precautionary and cautionary phases that are closely related to each other and functionally prodromal to it, otherwise finding no legal justification for the compression, even if only temporary and provisional, of the personal freedom of the person affected by the international cooperation activity.
6. In this regard, reference should be made to the convincing recent decision of Sec. 6, no. 17316 of 11/03/2024, Abbas, not summarized, in an extradition matter concerning similar crime of murder upon request of the Islamic Republic of Pakistan, which affirmed the principle that “in the absence of a treaty with the requesting state, the rule provided for in Article 698, paragraph 2, Code of Criminal Procedure. does not allow for procedural extradition in favor of the foreign state when the act for which extradition is requested is punishable by the death penalty,” in the presence, in the case at hand, of a crime punishable by capital punishment and the coincidental conditions constituted by the absence of treaty with the foreign state and the procedural nature of the prospective extradition request.
7. Therefore, the following principle of law must be affirmed: “an arrest by the judicial police, pursuant to Article 716, Paragraph 1, of the Code of Criminal Procedure, for extradition purposes for a crime for which the system of the foreign state provides for the death penalty is not legitimately carried out, nor can a provisional coercive precautionary measure for the same crime be applied, pursuant to Article 716, Paragraph 3, of the Code of Criminal Procedure.”
8. The other grounds of appeal are absorbed by the acceptance of the first and third grounds above.
9. It follows that the contested order should be annulled without referral with immediate release of A.A., if not otherwise detained.
Clearly, that constituted by the measure aimed at maintaining the provisional precautionary measure pursuant to Article 716, paragraph 4, of the Code of Criminal Procedure (see ministerial request of April 2, 2024 in the record) cannot be considered another cause for detention, since its object is only the continuation of the annulled one, descending - in turn - from the validation, likewise annulled, in relation to which, moreover, the term within which the maintenance of the provisional measure must be requested by the Minister of Justice is established.
10. Court clerks shall act pursuant to Articles 626 cod. proc. penale and 203 disp. att. cod. proc. penale.
FOT THESE REASONS
annuls the appealed order without referral and orders the immediate release of A.A., if not detained for another cause. Sends to the Clerk's Office for fulfillment of the requirements of Articles 626 of the Code of Criminal Procedure and 203 disp. att. cod. proc. penale.
Conclusion
Thus decided on May 15, 2024. Filed in the Clerk's Office on June 6, 2024.