The substitution of the court appointed lawyer (or public defender) is legitimate if the appointed counsel has not performed any defensive actions and has not acted in favor of his client, the principle of immutability of the defense not operating in such a case until the eventual dispensation from the assignment or fiduciary appointment.
The service of the contumacious extract of the judgment made to the convicted fugitive at the public defender who had assumed the defense in the proceedings is valid, although the appointment of another public defender - implicitly revoked as a result of the appointment of the second - who had not carried out any activity during the period of formal tenure, had previously taken place.
(Please note that appoint a lawyer of own choice of the defendant is always possibile and leads automatically to the the replacement of the court apinted lawyer. read more avbout how to choose an Italian criminal defense attoreny)
SUPREME COURT OF CASSATION
SECTION ONE CRIMINAL
(hearing date 11/21/2017) 01/24/2018, No. 3444
Composed of the Honorable Magistrates:
Dr. CARCANO Domenico - President -
Dr. SIANI Vincenzo - Councilor -
Dott. FIORDALISI Domenico - Councilor -
Dott. BINENTI Roberto - rel. Councilor -
Dr. DI GIURO Gaetano - Councilor -
pronounced the following:
JUDGMENT
On the appeal brought by:
B.A. born on (OMISSIS);
against the order of 05/04/2017 of the TRIBUNAL of PADOVA;
having heard the report delivered by Councilor ROBERTO BINENTI;
read the conclusions of the PG, in the person of Deputy Attorney General PAOLO CANEVELLI, who requested the dismissal of the appeal.
Conduct of the trial.
1. With the order indicated in the epigraph, the Court of Padua, insofar as it is relevant here, rejected the petition in the interest of B.A. aimed at obtaining the ineffectiveness of the enforcement title constituted by the sentence of conviction issued by the same Court on November 16, 2012, which had become irrevocable since it had not been appealed within the terms; it also declared inadmissible the petition made at the same time for restitution within the time limit for appealing the aforementioned sentence.
2. Dwelling on the reasons for the rejection of the request pursuant to Article 670 of the Code of Criminal Procedure, the Court noted that the notification to the defense counsel of the conviction had been ritual because of B.'s decree of absconding, issued on May 20, 2010 after the information acquired on May 10, 2010, which had made it possible to ascertain that B. had already left Italy on March 25, 2010. Nor was there any onus thereafter to conduct a new search. B. had voluntarily placed himself in the condition of untraceability having knowledge, given the previous investigative activities, that a measure of application of personal precautionary measure could be issued against him. Service of the default excerpt had been properly made on the public defender who had assumed the defense in the proceedings, given that other defense counsel, previously appointed ex officio and implicitly revoked with the new designation, had not carried out any defense activity in the span of just two months in which only formally had his appointment been extended. The initial investigations that had resulted in a notice of investigation, search, seizure and voluntary salivary sampling for DNA extraction against B. and the execution of a precautionary measure against a co-defendant for the same fact, had allowed the same B. to acquire all the information required by “due process” before voluntarily leaving Italy, evading execution of the measure.
The inadmissibility of the request pursuant to Article 175 of the Code of Criminal Procedure, was held by the Court observing that it had been submitted only on March 9, 2017 and therefore well beyond the thirty-day period provided for by Article 175
c.p.p., paragraph 2 bis. A term that had to be made to run from B.'s actual knowledge of the measure having occurred at least since November 4, 2016, when the same, following the execution of a European arrest warrant, had entered Italy by being detained at the Sanremo Prison House.
3. B. appeals for cassation through defense counsel.
3.1. With a first plea, alleging violation of Art. 111.
Const., art. 6 ECHR and articles 175 , 295 and 296 of the Code of Criminal Procedure, as well as contradictory and manifestly illogical motivation, notes that the decree of absconding had been irregularly issued on the sole basis of the news that about two months earlier B. had boarded an airplane flight that had taken him out of Italy. This had in any case occurred not because of a voluntary choice, since he was a foreigner in an illegal condition who had already been served with a deportation order and convicted of failure to comply with it. Therefore, it had not been intended to escape the execution of the precautionary measure issued in the proceedings for the crime of sexual violence, so much so that a good twenty days had passed since the acts of investigation indicated by the Court. The searches that had been followed by the decree of absconding were insufficient, since, since the relevant report merely noted that he had left Italy by air about two months earlier, it did not appear that it had been ascertained whether B. had in the meantime returned to the country illegally, given, moreover, that not even the searches conducted at his mother's home, where he had previously set up residence and had been traced, had been represented.
2.2. In a second plea, with reference to erroneous application of Articles 24 and 11 of the Constitution, Article 6 ECHR, Articles 165 , 97 and 106 of the Code of Criminal Procedure, they censure the observations made by the Tribunal with regard to the relevance of the position of inertia of the public defender initially appointed, not taking into account the principle of the immutability and uniqueness of the defense authoritatively affirmed in jurisprudence, the possible activities of that defender not represented by the procedural acts, the lack of knowledge on the part of B. of the appointment of another defender other than the one indicated to him and at whose office he had elected domicile at the time of the information of guarantee, the position of acquiescence assumed by the new defender with respect to violations in the continuation of the proceedings.
2.3. In a third ground of appeal, with reference to the violation and erroneous application of Articles 24 and 111 of the Constitution, Article 6 ECHR and Article 175 of the Code of Criminal Procedure, it is argued that the time limit under Article 175 of the Code of Criminal Procedure, could not in the present case guarantee the rights of the accused, having regard to a trial held in absentia, as recognized by the jurisprudence of the European Court of Human Rights, there having been a lack of information on the matter even during the extradition procedure and other serious obstructive factors recurring, including the detention of B. in a place, where to agree on the defensive line, far from that where the trial was held.
3. In an indictment filed on July 18, 2017, the Attorney General's Office requests the dismissal of the appeal, illustrating observations on the groundlessness of the findings.
Reasons for the decision
1. The appeal is unfounded.
2. As for the first ground, it must be premised, in line with the same observations made in the appeal, that the invalidity of the decree of absconding can be asserted in the execution incident brought pursuant to Article 670 of the Code of Criminal Procedure, for the sole purpose of challenging the validity of the service of the default extract of the judgment and therefore the fact that the enforcement order has been formed.
The question of the validity of said decree was correctly examined by the judges of merit, first of all taking into account the converging elements known to B. (information of guarantee, search, seizure, voluntary taking of salivary sample for DNA extraction, execution of precautionary measure with regard to the co-defendant for the concurrence in the serious crime of sexual violence) suitable to generate in the aforementioned at least the awareness that the precautionary restrictive measure could be issued later also against him.
Contrary to what is argued in the appeal, the time of only twenty days elapsed between said investigation and removal from the territory of the state, which allowed B. to place himself permanently in the condition of untraceability protracted until his arrest abroad several years later in execution of a European arrest warrant, does not stand in contradiction to the reasoning followed by the Tribunal, all the more so since it was a matter of pondering not at the instant decisive decisions involving the abandonment of established living conditions, the investigations did not appear to be a harbinger of outcomes to be achieved immediately and it was in any case necessary to have time to identify the means and destination for removal from the territory of the State, opting for air transport for the purpose.
B. had remained exposed in Italy for a long time to the consequences of violations of immigration regulations without, however, making himself untraceable and removing himself from the State, while only at that time were more serious judicial repercussions looming in connection with the proceedings for the crime of sexual violence; so that it was correctly held that by reason of the possible execution of the measure relating to the latter proceedings, the abandonment of Italian territory by virtue of a decisive option intervened precisely on that date.
In any case, little would shift the fact that at the time of that abandonment, pending charges for violations of immigration regulations were at the same time considered, since this in itself does not lend itself to the exclusion of voluntary and conscious unavailability by providing for the measure for acts of sexual violence.
Nor can the exhaustiveness of the searches that preceded the decree of absconding be questioned, as was done in the appeal, for failing to consider the unreasonable hypothesis that B. after having left Italy by air for reasons not associated with ordinary living conditions, could have returned illegally to Italy again only a short time later, to make himself traceable precisely where he had previously been most easily identified.
It follows that the grievances challenging the contested decision are unfounded where it found the validity of the decree of absconding to be a prerequisite for the timeliness of the notification of the default extract of the judgment.
3. Equally unfounded turns out to be the second plea.
In fact, it invokes the principle of the immutability and uniqueness of the defense even if assigned to the public defender, with the consequent impossibility of his substitution in the absence of those conditions that allow its dispensation; but in this way it does not relate to the considerations made by the judges of merit who, recalling in this regard the case law of this Court (Sec. 1, no. 24584 of 05/28/2009, Rv. 243820; Sect. 3, no. 25812 of 07/06/2005, Rv. 23186; Sect. 1, no. 1616 of 02/12/2004, dep. 2005, Rv. 230651), correctly point out that precisely because it is the assurance of effective guarantees of defense the above can apply only when the original public defender has been active in the actual performance of the task he has been entrusted with.
Opposed to the just exclusion of such conditions on the basis of the evidence of the record was the hypothetical possibility of reports and defensive initiatives that were nevertheless non-trial. But if they had indeed been undertaken, one would have moved within the framework of a real assumption of the defensive assignment that could not then have seen that same defender permanently inert and disinterested, before and after the substitution. And consider that the appointment of the first defender is dated March 4, 2010, just 20 days after B. moved away from Italy thus making himself untraceable until his arrest in 2016, while the implicit revocation of that first appointment, through the new appointment, took place as early as May 20, 2010. So that, it is really unclear what defensive guarantees could have ensured the notification of the decision through the first defender rather than the second one who instead turns out to have later appeared during the proceedings.
Any other issue internal to the events of the trial as described in the plea in question cannot be relevant to the regularity of the service of the default excerpt that allows for the enforceability of the judgment of conviction.
4. The third ground is manifestly unfounded.
By means of it it is ultimately complained about the shortness of the time allowed to request restitution within the time limit pursuant to 'art. 175 c.p.p., paragraph 2 bis, referring in this regard to the difficulty in the case in point of preparing the defense because of B.'s place of detention. But, these are only more laborious meeting conditions that could well have been overcome in the not so short period of thirty days from the undisputed knowledge of the judgment as occurring at least on November 4, 2011, while the petition was proposed only on March 9, 2017, i.e. well over four months later.
5. It follows that the appeal should be dismissed, with the appellant ordered to pay further court costs.
P.Q.M.
Dismisses the appeal and orders the appellant to pay further court costs.
Thus decided in Rome, November 21, 2017.
Filed at the Clerk's Office on January 24, 2018.