The order of personal pre-trial detention issued against a non Italian speaking defendant or suspect, where
- it is known before issuing the pretraial detention order by Italian judiciary that the defendant does not know the Italian language, it is affected by relative nullity in case of failure to translate;
- it is not known bedfore the issuing of a pretrail detention order that the non Italian speaking suspect or defendant does not know the Italian language, the not translated pre-trial detention order issued against him or her is valid finally until the moment in which it emerges that he or she does not know the said language, which carries the obligation to translate the measure within a reasonable period of time; failure to translate determines the relative nullity of the entire sequence of procedural acts performed up to that moment, in it including the pre-trial detention order. It is burden of the defense to show how, with respect to the motivational content of the order, the lack of timely knowledge due to failure to translate would have influenced its own defense strategies, the generic challenge of the tardiness of the translation not being sufficient.
(Comment: It should be noted that Italian jurispridence requests that the defendant proves that the nullity in case of lack of translation has had a negative effect on his/her position - or "the concrete and real prejudice to defense prerogatives resulting from the failure to translate (see Corte di Cassazione, Sec. 6, No. 22814 of 10/05/2016, Rv. 267941; Sec. 6, No. 45457 of 29/09/2015, Rv. 265521)", which in my opinion makes the right to translation affirmed by present decision a "theoretical and illusory, not a practical and effective right". Nicola Canestrini)
Italian Supreme Court
United Sections
judgment no. 15069
date ud. 26/10/2023 - 11/04/2024
Dr. CASSANO Margherita - President Dr. PETRUZZELLIS Anna - Councilor Dr. ZAZA Carlo - Councilor
Dott. ANDREAZZA Gastone - Councilor Dott. AGOSTINACCHIO Luigi - Councilor Dott. SERRAO Eugenia - Councilor Dott. SCARCELLA Alessio - Councilor Dott. SILVESTRI Pietro - Councilor Dott. CENTONZE Alessandro - Rapporteur pronounced the following
JUDGMENT
On the appeal brought by.
A.A., born in Poland on (Omissis)
against the order issued on 01/24/2023 by the Court of Rome Having regard to the acts, the contested order and the appeal;
Hearing the report made by member Alessandro Centonze;
Hearing the conclusions of the Public Prosecutor, in the person of Attorney General Pasquale Fimiani, who requested the dismissal of the appeal;
Hear, in the interest of A.A., the conclusions of Attorney FP, who asked that the appeal be granted.
The trial
1. The suspect A.A., on July 18, 2022, was placed under police custody for the attempted murder of B.B., committed in R on July 17, 2022.
As a result of the detention, on July 22, 2022, the Judge for Preliminary Investigations of the Court of Rome, at the request of the Public Prosecutor, held the validation hearing with the assistance of an interpreter, appointed on the assumption, which was expressly noted, that the 'suspect, of Polish nationality did not understand the Italian language.
At the outcome of the hearing, in an order dated July 22, 2022, the judge validated the detention and applied the precautionary measure of detention in prison against A.A. The order was notified to the 'person concerned and his defense counsel in Italian, without being translated into the language known by the suspect.
Subsequently, the suspect's defense counsel, in two petitions, filed on September 21, 2022, and October 24, 2022, asked the court to declare the loss of efficacy of the precautionary measure due to the failure to translate the genetic order, pursuant to Article 306 of the Code of Criminal Procedure. This omission, in fact, concretized a violation of Article 143, paragraph 2, of the Code of Criminal Procedure, on which the judge who had adopted the censured measure had to pronounce, in line with the jurisprudence expressly referred to (Sez. U, no. 26 of 05/07/1995, Galletto, Rv. 202015 - 01).
Invested in the aforementioned petitions, the prosecuting authority, in a ruling of November 16, 2022, declared that there was no need to adjudicate on the second of the two requests, noting that, in the meantime, the translation of the precautionary order into Polish had been made and had been notified to the suspect on October 11, 2022.
2. Against the order of November 16, 2022, A.A., through his lawyer FP, filed an appeal, pursuant to Article 310 of the Code of Criminal Procedure, censuring the delay with which the judge had ruled on the petitions submitted pursuant to Article 306 of the Code of Criminal Procedure, and inferring that the translated genetic measure had been notified in prison to the suspect on October 11, 2022, beyond what could be considered “a congruous term.”
It was deduced, at the same time, recalling the notification of the translated order, that the censured measure had eluded the object of the instances of the 'suspect, which were not finalized to solicit the translation into Polish, but to obtain the declaratory inefficacy of the precautionary measure pursuant to art. 306 cod. proc. penale.
The Court of Review of Rome, in an order dated January 24, 2023, rejected the appeal, noting that the failure to translate the order ordering a precautionary measure in a language known by the non Italian speaking arrested did not determine, ex se, the 'invalidity, but only entailed that the time limits for bringing the appeal ran from the time when the foreign suspect or defendant had received the translation of the act, recalling, in this sense, a recent ruling of legitimacy (Sez. 5, no. 22065 of 06/07/2020, Bhiari, Rv. 279447 - 01).
There was, therefore, no verification of any defect in the genetic measure, given that from the date of the notification of the translation, which took place on October 11, 2022, the time limits for proposing the request for review under Article 309 of the Code of Criminal Procedure, which, in the case at hand, had largely expired, began to run.
3. Against the order of January 24, 2023, A.A., through his lawyer FP, appeals for cassation, articulating four grounds.
3.1. The first ground is challenged by the fact that, according to the Court of Review of Rome, in the appeal lodged pursuant to Article 310 of the Code of Criminal Procedure, the 'interested party should have indicated “ in what the omess translation would have impaired the rights of the 'suspect,” without considering that “such impairment of rights is inherent in the same regulatory provision of the nullity and the resulting effects.”
3.2. With the second plea, already examined in the order of remittal, it is complained that the order's response was erroneous regarding the failure to transmit to the Court of Re-examination of Rome the measure by which the Judge for Preliminary Investigations of the Court of Rome had ordered the translation, and the lack of knowledge of the date of this and its author; circumstances that would have resulted in the violation of Articles 143, paragraphs 5 and 6, 144, 146, 147 and 310 paragraph 2, cod. proc. penale.
3.3. The third plea alleges violation of Articles 125 and 306 of the Code of Criminal Procedure, consequent to the fact that the Court of Review of Rome had deemed irrelevant the failure of the Judge for Preliminary Investigations of the Court of Rome to respond to the solicitations, contained in the petitions submitted by A.A. on September 21, 2022 and October 24, 2022, to order the translation of the genetic measure, being, however, in the face of the same, in fact, this, ordered; in fact, with the requests in question, not mere reminders had been made, but specific exceptions had been proposed aimed at inferring the ineffectiveness of the measure.
3.4. The fourth plea alleges violation of Articles 143(2) and 306 of the Code of Criminal Procedure, resulting from the failure of the Rome Review Court to respond to the alleged failure to observe the appropriateness of the time limit set for translation, which would have resulted in the ineffectiveness of the measure.
4. By order of May 4, 2023, the First Criminal Section of the Court of Cassation, assignee of the appeal according to the tabular rules of organization of the uffice, referred the appeal brought by A.A. to the United Sections, pursuant to Article 618 of the Code of Criminal Procedure.
In support of the remittal, the First Criminal Section represented the existence of a conflict of interpretation, concerning the 'identification of the procedural consequences arising from the omission or delayed translation of the order ordering a personal precautionary measure against an non Italian speaking subject who does not know the Italian language.
According to the first orientation, the omitted or late translation does not give rise to a nullity, as inferable from Article 143, paragraph 1, of the Criminal Procedural Code, which refers exclusively to the finality of the translation of fundamental acts, functional to allow the exercise of the right of defense, without providing any procedural sanction.
According to this interpretative option, the omission or untimely translation of the pre-trial detention order adopted against the 'defendant or the 'suspect non Italian speakingnon pertains to the structure of the measure and does not determine its nullity, not falling under any of the hypotheses governed by Articles 178 and 179 cod. proc. penal, but concerns, rather, its efficacy, being able, at most, to affect the validity of the derived procedural acts (among others, Sec. 5, no. 22065 of 06/07/2020, Bhiari, cit.; Sec. 5, no..1.0993 of 05/12/2019, dep. 2020, Chanaa, Rv. 278883 - 01; Sec. 6, no. 51951 of 17/10/2017, Minte, Rv. 271655 -01).
According to the opposing jurisprudential orientation, the failure or delay in translating the measure ordering a personal precautionary measure configures a flaw in the act, although the procedural effects arising from it are different depending on the moment when the prosecuting authority learns that the arrested person does not understand the Italian language in which the order was drafted.
If, in fact, such knowledge precedes the adoption of the act, the omitted or delayed translation configures a flaw in the measure that can be traced to the hive of intermediate-regime nullities, pursuant to Articles 178 and 180 of the Italian Code of Criminal Procedure, in line with what was affirmed by the United Sections in a long-standing chiarificatory intervention (Sez. U, no. 5052 of 24/09/2003, dep. 2004, Zalagaitis, Rv. 226717 - 01), later reiterated by other pronouncements (among others, Sez. 4, No. 33802 of 18/05/2017, Ojeareghan, Rv. 270610 - 01; Sect. 3, No. 14990 of 18/02/2015, Vervaeren, Rv. 263236 - 01; Sect. 3, No. 26846 of 29/04/2004, Ionascu, Rv. 229295 - 01).
If, on the other hand, the 'ignorance of the Italian language on the part of the arrested person is not known at the time of the adoption of the pre-trial detention order, the judicial authority, as soon as this circumstance emerges, must order the translation of the document “within a reasonable period of time,” as prescribed by Article 143, paragraph 2, of the Criminal Procedure Code. In the latter case, any translation of the act within an incongruous time limit concretizes a hypothesis of supervening invalidity, which must be flexibly assessed, having to take into account both the spread of the language known by the non Italian speaking subject and the time needed to find the 'interpreter (among others, Sez. 6, No. 48469 of 04/12/2008, Abdalla, Rv. 242147 - 01; Sec. 6, No. 9041 of 15/02/2006, IEI Khamlichi, Rv. 233916 - 01).
On the basis of these considerations, the First Criminal Section referred the appeal to the United Sections, stressing the relevance of the question of law in dispute and noting that, depending on the hermeneutic option chosen, different conclusions derive with regard to the manner in which the translation of the order of pre-trial detention applied to A.A. on July 22, 2022 was carried out.
5. By decree dated August 1, 2023, the First President assigned the appeal to the Joint Sections and ordered it to be heard at the participatory chamber hearing on October 26, 2023.
6. The Public Prosecutor, in the person of Attorney General Pasquale Fimiani, reiterating the contents of the hearing notes submitted on October 17, 2023, requested the dismissal of the appeal brought in the interest of A.A.
In support of these conclusions, the Public Prosecutor preliminarily recalled the rules applicable to the case at hand, resulting from the combined provisions of Articles 143 of the Code of Criminal Procedure, 51-bis dispositions att. of the Code of Criminal Procedure, 3 and 4 of Directive 2010/64/EU of the European Parliament and of the Council of October 20, 2010 on the right to interpretation and translation in criminal proceedings.
It follows from this, stratified, discipline that the order of pre-trial detention, in relation to the personal freedom of the 'accused or 'suspect who does not speak Italian language, produces its effects immediately; while, in relation to the exercise of the right of the defense, the order takes effect only from the date of its translation into the language known to the arrested person.
He, therefore, deduced that the cassation appeal appeared to have been brought by A.A. in the absence of interest in the appeal, the genetic precautionary measure having already been translated into the Polish language at the time the appeal was filed pursuant to Article 310 of the Code of Criminal Procedure.
He pointed out, in any case, that the appellant had not filed a timely petition for reconsideration against the translated restraining order, pursuant to Article 309 of the Code of Criminal Procedure, the terms of which ran from the time the act was served, which occurred on October 11, 2022.
Reasons for the decision
1. The question of law for which the appeal brought by A.A. has been referred to the United Sections is as follows: “Does the failure to translate within a reasonable time into a language known to the 'defendant who does not know Italian of the order ordering a personal precautionary measure result in the nullity of said measure or the loss of efficacy of the measure or does it only result in the deferment of the time limit for bringing an appeal?”
2. Before examining the jurisprudential contrast that necessitated the 'clarifying intervention of the United Sections, it is necessary to review the normative context that gave rise to the hermeneutical contrast under scrutiny.
It should be premised that the right of the accused and the suspected non-native speaker to obtain translation into a known language of the measures ordering a personal pre-trial measure against them is derived from a plurality of normative sources.
Article 6 of the European Convention on Human Rights, in its third paragraph, recognizes the right of every person accused of a crime to: “(a) to be informed, as soon as possible, in a language he understands and in detail of the content of the charge against him.”
The same terms are expressed in Article 101 of the Constitution, as amended by Constitutional Law. Nov. 23, 1999, No. 2, which, in its third paragraph, provides that the person accused of a crime “shall, in the shortest possible time, be informed confidentially of the nature and grounds of the charge against him,” “shall have the necessary time and conditions to prepare his defense,” and “shall be assisted by an interpreter if he does not understand or speak the language used in the trial.”
In turn, Directive 2010/64/EU of the European Parliament and of the Council of October 20, 2010, in Article 2(1), states, “Member States shall ensure that suspects or accused persons who do not speak or understand the language of the criminal proceedings concerned shall be assisted without delay by an interpreter in criminal proceedings before investigative and judicial authorities, including police questioning, and at all hearings, including any necessary preliminary hearings.” This provision, in turn, must be correlated with that of Article 3(1) of the same Directive, which provides: “Member States shall ensure that suspected or accused persons who do not understand the language of the criminal proceedings receive, within a reasonable time, a written translation of all documents that are essential to ensure that they are able to exercise their defense rights and to protect the fairness of the proceedings.”
The Directive was transposed into our legal system by Legislative Decree No. 32 of March 4, 2014, entitled “Implementation of Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings,” which reformulated Article 143 of the Code of Criminal Procedure, constituting the normative model on which the right of the non Italian speaking subject to obtain translations of essential documents in a known language is built.
The centerpiece of the reformulated Article 143 of the Code of Criminal Procedure is its first two paragraphs, which need to be examined in sequence. The first of them provides: “A 'defendant who does not know the Italian language has the right to be assisted free of charge, regardless of the outcome of the proceedings, by an interpreter in order to be able to understand the charges against him and to follow the performance of the acts and the conduct of the hearings in which he participates. He shall also have the right to the free assistance of an interpreter for the purpose of communication with the defense counsel before giving an interrogation, or for the purpose of submitting a request or plea in the course of the proceedings.” The second paragraph of the rule under consideration states, “In the same cases, the proceeding authority shall order the written translation, within a reasonable period of time such as to allow the exercise of the rights and faculties of the defense, of the 'information of guarantee, information on the right of defense, measures ordering personal precautionary measures, the notice of conclusion of preliminary investigations, decrees ordering the preliminary hearing and summons to trial, and judgments and criminal conviction decrees.”
Indeed, this is a particularly innovative discipline, if only one considers that the old formulation of Article 143 of the Code of Criminal Procedure, in its first paragraph, recognized the right of the foreign citizen “to be assisted free of charge by an interpreter in order to be able to understand the accusation against him or her and to follow the performance of the acts in which he or she participates,” and, in its second paragraph, provided that “the proceeding authority shall appoint an interpreter when it is necessary to translate a writing in a foreign language.”
This regulatory platform was further grafted onto by Legislative Decree No. 129 of June 23, 2016, entitled “Supplementary and corrective provisions to Legislative Decree No. 32 of March 4, 2014, implementing Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings,” which introduced Article 51-bis disp. att. cod. proc. penal into the criminal procedure system, which, in the matter under consideration, gave rise to some significant additions to Article 143 cod. proc. penal.
Art. 51-bis disp. att. cod. proc. penale, in fact, provides for an expansion of the right of defense of the non Italian speaking subject who does not know the Italian language, establishing, in the first paragraph, that “the 'defendant has the right to the free assistance of the interpreter for an interview with the defender” and that if “the exercise of the right of defense requires the conduct of several interviews with reference to the performance of the same procedural act, the free assistance of the interpreter can be ensured for more than one interview.”
Also worth noting is the emergency procedure introduced by Article 51-bis, paragraph 2, disp. att. cod. proc. penale, which states, “When special reasons of urgency arise and it is not possible to have promptly a written translation of the acts referred to in Article 143, paragraph 2, of the code, the judicial authority shall order, by reasoned decree, if this does not prejudice the right of defense of the 'defendant, the oral translation, also in summary form, drawing up at the same time minutes.”
From the sequence of regulatory interventions described above, there emerges a significant expansion of the spaces for the protection of the right of defense of the 'accused and the 'suspect who are non Italian spekingi who do not know the Italian language, which concerns both the written translation of procedural documents and the assistance of the 'interpreter at the defense interviews.
However, the expansion, albeit uncontroversial, of the right of defense of the arrested who do not know the Italian language has left unresolved some, fundamental, hermeneutical questions, requiring the 'clarifying intervention of the United Sections.
3. Having framed the normative context in which the question of law that necessitates the decisive intervention of the United Sections is set, it is necessary to move on to examine the jurisprudential contrast that fuels the interpretative contrast reported by the First Criminal Section.
Two opposing jurisprudential orientations are recognizable on the question of law, which are correctly referred to by the referring collegium.
3.1. For a first orientation, to which the contested measure is inspired (among others, Sect. 5, no. 22065 of 06/07/2020, Bhiari, cit.; Sect. 5, no. 10993 of 05/12/2019, dep. 2020, Chanaa, cit.; Sect. 6, no. 51951 of 17/10/2017, Minte, cit.; Sect. 5, no. 18023 of 12/03/2013, F., Rv. 255510 - 01; Sect. 4, No. 6684 of 12/11/2004, dep. 2005, Hachimini, Rv. 233360 - 01), the omission or delayed translation of an order ordering a personal precautionary measure against an non Italian speaking defendant or suspect, who does not know the Italian language, affecting exclusively the exercise of his right of defense, does not determine the nullity of the act, but only its ineffectiveness.
To reconstruct the assumption from which this orientation moves, it is necessary to recall Sec. 6, No. 51951 of 17/10/2017, Minte, cit, which argued “the order of aggravation of the precautionary measure against the non Italian speaking suspect must be translated into the language known to the latter, pursuant to Article 143 of the Code of Criminal Procedure (as modified by Legislative Decree March 4, 2014, re. 32), given that the finality of ensuring the full exercise of the right of defense, to which said translation is preordained, presupposes the knowledge of both the circumstantial elements, enhanced for the fixed purposes of the adoption of the measure, and of the precautionary requirements and their changes as a result of supervening factual circumstances.”
In this perspective, the translation of the order of aggravation of a precautionary measure in a language known by the 'foreign suspect, prescribed by art. 143, paragraph 2, Code of Criminal Procedure, does not “integrate a constitutive element, but rather, as functional to its understanding, configures only an indispensable element for the purposes of the commencement of the time limit for the exercise of the right of appeal by the person entitled.”
In support of these conclusions, reference is made to the orientation established at a time prior to the modification of Article 143 of the Code of Criminal Procedure by Legislative Decree no. 32 of 2014, according to which “the lack of translation of the custodial order does not affect the perfection and validity of the act but its efficacy, with the consequence that the request for translation of the custodial order proposed by the 'suspect to the judge of review and the consequent transmission of the acts to the Gip for translation and notification, to the 'suspect, of the original measure and the translated one does not entail the 'invalidity of the custodial order but a kind of restitution in the term, with reference to the moment of production of effects, to allow any appeal on the basis of full knowledge of the precautionary order” (Sez. 5, no. 18023, 12/03/2013, F., cit.)
In the same vein, Sez. 5, no. 22065 of 06/07/2020, Bhiari, cit. affirmed that “the failure to translate into the language known to the ‘suspect non Italian speaking, who does not know the Italian language, of the order applying a personal precautionary measure does not determine its invalidity and only entails that terms for any appeal run from the time when the ’suspect has had actual knowledge of the content of the measure.”
Similar principle was enunciated with reference to the rejection of the request for review by Sec. 5, no. 10993 of 5/12/2019, dep. 2020, Chanaa, cit, according to which “the lack of translation into the language known to the 'suspect non Italian speaking, who does not know the Italian language, of the order rejecting the request for reconsideration of the measure applying a personal precautionary measure, does not determine its invalidity and only entails that the terms for any appeal in cassation run from the time when the suspect has actual knowledge of the content of the order.”
This interpretative option draws, therefore, its foundation from an exegetical datum, namely the reference to the procedural finality of the translation of fundamental acts, contained in Article 143, paragraph 1, of the Code of Criminal Procedure: the effectiveness of the right of defense of the suspect and the accused who do not know the Italian language.
It is then further corroborated by Article 143, Paragraph 2, of the Italian Code of Criminal Procedure, which does not provide any procedural sanction for cases of omitted or delayed translation of orders ordering a personal pre-trial measure against the non Italian speaking subject.
3.2. According to a second and opposing jurisprudential orientation (among others, Sect. 4, No. 33802 of 18/05/2017, Ojeareghan, cit.; Sect. 3, No. 14990 of 18/02/2015, Vervaeren, cit. ; Sect. 6, No. 50766 of 12/11/2014, Awoh, Rv. 261537 - 01; Sect. 5, No. 16185 of 6/10/2004, Fusha, Rv. 233642 - 01; Sect. 3, No. 26846 of 29/04/2004, Ionascu, cit. ), on the other hand, the omission or delayed translation of an order ordering the application of a personal precautionary measure against an non Italian speaking person concretizes a defect of the act, although the resulting effects should be differentiated according to the moment in which it emerges that the foreign citizen does not know the Italian language.
According to this guideline, where a personal precautionary measure is applied against a foreign citizen “who is unable to understand the Italian language, the failure to translate the measure determines its nullity (intermediate regime) only if the aforementioned circumstance was already known at the time the precautionary measure was issued”; otherwise, the translation of the restrictive measure must be ordered within a reasonable period of time, as provided for in Article 143, paragraph 2, of the Italian Criminal Procedure Code, failure to comply with which determines “the loss of efficacy of the measure” (Sec. 3, no. 14990 of 18/02/2015, Vervaeren, cit.).
The obligation to translate the precautionary order is inferred from Article 143, paragraph 2, Code of Criminal Procedure, as amended by Legislative Decree No. 32 of 2014 (Sect. 4, No. 33802 of 18/05/2017, Ojeareghan, cit., and Sect. 3, No. 14990 of 18/02/2015, Vervaeren, cit.).
This solution is in a line of continuity with Sez. U, No. 5052 of 09/24/2003, dep. 2004, Zalagaitis, cit. which, albeit in relation to a different hermeneutic context, differentiated the consequences of the omission or delayed translation of the measure applying a personal precautionary measure, depending on the moment in which the lack of knowledge of the Italian language of the non Italian speaking subject emerges. Specifically, they ruled that “if a personal precautionary measure is applied against a foreign citizen who is unable to understand the Italian language, the failure to translate the measure determines its nullity (intermediate regime) only if the aforementioned circumstance was already known at the time of the issuance of the Cautelary Order; where, on the other hand, the lack of knowledge of the Italian language emerges during the 'interrogatorio di garanzia, this situation should be equated with that of absolute impediment regulated by Article 294, second paragraph, cod. proc. pen, so that the judge must order the translation of the coercive measure within a reasonable period of time, and the term for the 'interrogation runs again from the date of filing the translation, with the consequent loss of efficacy of the measure in the event of failure to interrogate within the aforementioned term, or of translation ordered or carried out in an 'incongruous' term.”
This pronouncement, in turn, is related to a previous ruling of the United Sections, concerning the different hypothesis of the failure to translate the summons to trial against the 'defendant who does not know the Italian language, which established the following principle of law: “The failure to translate into the language of the 'non Italian speaking defendant of the decree of summons, in the presence of the conditions required by Article 143 cod. proc. penal as interpreted by Corte cost. January 12, 1993 No. 10, integrates a general nullity of an intermediate type (Articles 178, lett. c) and 180 of the Code of Criminal Procedure), the deductibility of which is subject to precise time limits and which remains remedied by the appearance of the party” (Sez. U, No. 12 of 31/05/2000, Jakani, Rv. 216259 - 01).
4. Defined the terms of the question of law on which the College is called upon to intervene, it is first necessary to reconstruct the hermeneutic fabric prior to the reform of Article 143 of the Criminal Code by Legislative Decree No. 32 of 2014, moving from the Constitutional Court's January 12, 1993, No. 10 ruling, which constitutes the indispensable starting point for framing the right of defense of the foreigner who does not understand the Italian language, which draws its foundation from Article 24, second paragraph, of the Constitution.
It should be premised that the 'intervention of the Constitutional Court concerned the legitimacy of Articles 456, paragraph 2, 458, paragraph 1, and 555, paragraph 3, of the Code of Criminal Procedure, in relation to Article 143 of the Code of Criminal Procedure, with respect to which, in rejecting the question submitted to its consideration, the Judge of Laws pointed out that the lack of an express obligation to translate the fundamental acts into the language known to the 'accused or' suspected non Italian speaking could not prevent the application of the guarantees ensured by Article 143, paragraph 1, of the Code of Criminal Procedure, which were imposed by Article 24, paragraph 2, of the Constitution and by the international conventions ratified in our country.
According to the Judge of Laws, Article 143, paragraph 1, Code of Criminal Procedure finds its systematic basis in Article 24, paragraph 2, Const. which ensures the defense as an “inviolable right at every stage and level of the proceedings,” prefiguring a perfect subjective right directly actionable by the 'accused or' suspect non Italian speaking. In this constitutionally oriented perspective, it is necessary to ensure the broadest protection of the obligation to translate the acts into a language known to the 'accused or' suspected non Italian speaking, which draws its foundation from Article 24, second paragraph, of the Constitution, which requires to ensure the maximum expansion of this right of defense.
This framing of the right to translation of procedural documents draws further foundation from Article 6(3)(a) ECHR, according to which “every accused person has the right to be informed within the shortest possible time, in the language he understands and in detail, of the nature and cause of the accusation against him” (Constitutional Court, Sentence No. 10 of 1993).
On the level of international covenant law, moreover, the provision of Art. 6(3)(a) ECHR appears to mirror Art. 14(3) of the International Covenant on Civil and Political Rights, signed in New York on December 19, 1966 and ratified in Italy by Law No. 881 of October 25, 1977. 881, which recognizes to the accused a minimum content of guarantees, indispensable to enable him to exercise his right of defense, including that, provided for in paragraph (a), of “being informed promptly and in a circumstantiated manner, in a language he understands, of the nature and grounds of the accusation against him.”
The connection of Article 143 of the Code of Criminal Procedure with Article 24, second paragraph, of the Constitution, and Article 6(3)(a) of the ECHR, therefore, requires that it be affirmed that the codictic norm under consideration ensures “the right of the accused to be immediately and in detail informed in the language he or she understands of the nature and grounds of the charge against him or her,” giving rise to “a perfect subjective right that is directly actionable” (Constitutional Court, Sentence No. 10 of 1993, cit.).
The right to translation of documents, being an expression of the inviolable right to defense guaranteed by Article 24, second paragraph, Const. - which, in turn, draws its foundation from the constitutional guarantees recognized in Article 2 Const. - entails that “[t]he court is subject to the interpretative constraint of conferring on the norms, which contain the guarantees of the rights of defense with regard to the exact understanding of the accusation, an expansive signification, directed at making concrete and effective, to the extent possible, the ... right of the accused” (Cotte const., sent. no. 10 of 1993, cit.).
The cogent force of the normative constraints referred to, therefore, requires refining the scope of application of Art. 143 of the Code of Criminal Procedure and the procedural figure of the interpreter, who, where proceedings are brought against a foreigner who does not know Italian, must be considered functional to the protection of the right of defense, leading to consider the translation of the acts an “instrument of real participation of the accused in the process through the effective understanding of the distinct acts and individual moments of the proceedings ...” (Constitutional Court, Sentence No. 10 of 1993, cit.).
This overcomes, in this way, the doubts as to whether the rule of Art. 143 of the Code of Criminal Procedure was referable only to the right of the non Italian speaking subject to be assisted by an interpreter in the activities of the hearing and not also to the possibility of making use of this figure for the translation of the procedural acts that concerned him.
The motivational passages of Judgment No. 10 of 1993 that have been recalled, which are expressive of a conscious break with the formalistic and restrictive approach to the right to translation of acts first prevailing at that time, make clear the reasons that require that such a pronouncement be considered fundamental for the refinition of the right of defense of the non Italian speaking defendant and suspect who do not know the Italian language.
It cannot, however, fail to note that the references to the constitutional foundation of the right of defense of the accused and the non Italian speaking suspect, contained in Judgment No. 10del 1993, have not prevented, in subsequent years, the reproduction of strong hermeneutic resistance, which has given rise to jurisprudential interventions not always respectful of the principles affirmed in the same pronouncement.
5. The need to ensure the widest protection for the obligation to translate documents into a language known to the 'accused or' suspect who is an alien, which draws its foundation from the combined provisions of Articles 24, second paragraph, Const, and 6(3)(a) ECHR, to which Constitutional Court Judgment No. 10 of 1993 expressly refers, leads to the affirmation that the jurisprudential orientation reviewed in paragraph 3.2, according to which the hypotheses of failure or delay in translating the measures ordering a personal precautionary measure against a foreign national who does not know the Italian language concretize a flaw in the act, is based on reasons of an insuperable systematic order.
Conversely, the opposing hermeneutic orientation, examined above in Section 3.1, does not appear to be supported by an adequate recognition of the constitutional and conventional foundations of the right to the translation of acts into a language known by the accused or suspect who is an non Italian speaking.
It is necessary, in this regard, to consider that the order ordering a personal precautionary measure, affects the personal freedom of the 'suspect (or the accused), which the' rt. 13 Const. protects as an inviolable good and which, on the jurisdictional level, is guaranteed by the right of defense recognized by art. 24, second paragraph, Const. which represents a fundamental right of the individual relevant under art. 2 Const. (Constitutional Court, Sentence No. 10 of 1993, cit.).
The 'direct incidence of precautionary measures on personal freedom, from which originate the guarantees provided for in Article 24, second paragraph, Const. and 6, par. 3, lett. a), ECHR, requires recognizing the maximum expansive force to the right to translation of acts, ensuring, at the same time, the timeliness of this procedural activity.
To these conclusions, as mentioned above, the Constitutional Court had arrived at thirty years ago, stating that Article 143, paragraph 1, of the Code of Criminal Procedure required that an interpreter be appointed immediately, as soon as the ignorance of the Italian language “of the person against whom proceedings are being brought emerges, both if this circumstance is pointed out by the interested party himself, and if, failing that, it is ascertained by the proceeding authority ...” (Constitutional Court, Sentence No. 10 of 1993, cit.).
The need for a clear, complete and expeditious translation of the precautionary order, therefore, draws its solid systematic foundation, which appears insuperable, from the combined provisions of Articles 24, second paragraph, Const. and 6(3)(a) ECHR. The measure ordering a personal precautionary measure, in fact, finally produces its typical effects, directly affecting the personal freedom of the foreigner who does not know the Italian language.
It is not, moreover, indifferent for the arrested person to quickly obtain the translation of the precautionary order that concerns him or her rather than to dispose of it at a considerable distance of time from its execution, it being evident that, in the second case, there is a, inevitable, compression of his or her defensive prerogatives.
These considerations make it necessary to reiterate that the minority hermeneutic option, reviewed in section 3.1, which excludes the recurrence of a defect in the coercive measure, in cases of failure or delay in the translation of the procedural document, does not take due account of the constitutional and conventional frame of reference of the right of defense of the non Italian speaking subject.
The circumvention of the constitutional principles that underpin the right of defense of the non Italian speaking subject by the guideline in question appears even more evident in cases where the foreign national's lack of knowledge of the Italian language has emerged prior to the issuance of the custody order by the prosecuting authority.
In this hermeneutical context, the course of A.A.'s pre-trial case exemplifies the violation of the procedural canons set forth in the combined provisions of Article 24, second paragraph, Const, and 6, par. 3, lett. a), ECHR, given that, despite the fact that the Judge for Preliminary Investigations of the Court of Rome was aware that the arrested person did not know Italian, the translation of the coercive measure was filed on October 6, 2022 and notified to the suspect on October 11, 2022, more than two months after the validation hearing of the detention of the judicial police, held on July 22, 2022.
6. It must, at the same time, anticipate that the 'identification of the systematic basis of the defensive prerogatives of the non Italian speaking subject who does not know the Italian language in the combined provisions of Articles 24, second paragraph, and 6, par. 3, lett. (a), ECHR requires to distinguish the hypotheses in which the lack of knowledge of the Italian language has emerged prior to the issuance of the pre-trial detention order from the hypotheses in which, at the time of the adoption of the restrictive measure, this circumstance has not yet emerged and, therefore, is not known to the proceeding authority.
It should be clarified that the obligation to translate the procedural act does not arise from the mere fact that the 'defendant is not an Italian citizen, but requires proof that the same does not know the Italian language, as, for some time, also affirmed by Sez. U, no. 5052 of 24/09/2003, dep. 2004, Zalagaitis, cit.
In fact, it is not possible to equate, as will be discussed below, the cases in which the possible compressions of the defensive prerogatives of the non Italian speaking subject are caused by the 'inertia of the judicial authority with those in which the limitations are due to the emergence of this circumstance at a time subsequent to the adoption of the restrictive measure. And different, on a formal level, are also the consequences arising from these situations, although both hypotheses come to involve, in different ways, the validity of the measure, which is affected by an intermediate nullity.
6.1. Having said this, it is necessary to start from the hypotheses in which the foreign national's lack of knowledge of the Italian language already emerges before the issuance of the measure ordering a personal precautionary measure. In this case, the precautionary measure must be deemed to have been adopted, where the translation is not carried out in a congruous manner, as provided for in Article 143, paragraph 2, of the Italian Code of Criminal Procedure, in the absence of one of its constituent elements, represented by the foreign national's understanding of the reasons justifying the deprivation of his or her liberty.
Indeed, it constitutes a prerequisite for the exercise of the defensive prerogatives of the non Italian speaking subject to understand the reasons for which the deprivation of liberty has taken place, which presupposes linguistic knowledge, either direct or mediated by an interpreter, of the charges that are
addressed, which draws its foundation from Article 24, second paragraph, Const. Only in this way is it possible to ensure “an essential guarantee to the enjoyment of a fundamental right of defense ...” (Constitutional Court, Sentence No. 10 of 1993, cit.).
On closer inspection, it is Article 292, paragraph 2, of the Code of Criminal Procedure that makes the linguistic understanding of the charges brought against the arrested person essential, where it prescribes, in paragraph b), that the order applying a precautionary measure must contain “a summary description of the fact with the ‘indication of the rules of law allegedly violated.’” This act, moreover, as prescribed by letter c) of the same rule, must contain “the exposition and independent evaluation of the specific precautionary needs and of the clues that concretely justifify the measure ordered, with the 'indication of the factual elements from which they are inferred and the reasons for which they assume relevance, taking into account also the time elapsed since the commission of the crime.
Article 292, paragraph 2, of the Code of Criminal Procedure aims to ensure the necessary conditions for the exercise of the right of defense by the person subjected to a precautionary measure, which can also be guaranteed by a concise statement of the charges, provided that they present “a minimum of specificity as to the concrete manner in which the conduct was carried out with respect to the rule violated and its time of commission, so as to put the 'person concerned in a position to defend himself” (Sec. 3, No. 23978 of 05/15/2014, Alleva, Rv. 259671 - 01).
Compliance with the requirements of Article 292 of the Code of Criminal Procedure is, therefore, indispensable to ensure that the person deprived of his or her personal freedom can exercise his or her defensive prerogatives; prerogatives, which, evidently, presuppose precisely the understanding of the elevated charges, in a language known to the accused person.
For these reasons, in the case where the addressee of the restrictive measure is a foreign citizen who does not know the Italian language, Article 292 of the Code of Criminal Procedure must be read in systematic correlation with Article 143 of the Code of Criminal Procedure, which regulates the manner in which the translation of fundamental acts must be carried out. From the combined provisions of the two norms derives an obligation to translate the restraining order of personal liberty issued against individuals who are ignorant of the Italian language, the violation of which determines an intermediate nullity, in line with the long-standing hermeneutic option that considers this framing corroborated by the fact that the aforementioned art. 143 does not provide for any procedural sanction for the hypotheses under consideration (among others, Sect. 4, no. 27347 of 13/06/2001, Sharp, Rv. 220040 - 01; Sect. 3, no. 882 of 12/12/1998, Daraij, Rv. 213068 - 01; Sect. 1, re. 2228 of 10/04/1995, Polisi, Rv. 201461 - 01; Sec. 1, No. 4179 of 02/10/1994, Kourami, Rv. 199465 - 01).
We had already expressed ourselves in these terms in Sez. U, no. 5052 of 24/09/2003, dep. 2004, Zalagaitis, cit. in which - although referring to the provision of Art. 178, paragraph 1, lett. c), Code of Criminal Procedure and not that of Art. 292 Code of Criminal Procedure. - it was pointed out that the procedural pathology in question had to be counted among the intermediate-regime nullities, in “the absence of a specific provision of the rule of Art. 143 of the Code of Criminal Procedure.”
It is necessary, therefore, to reiterate the need to bring the hypotheses in which the lack of knowledge of the Italian language by the 'suspect or the accused non Italian speaking emerges before the issuance of the precautionary measure to the procedural category of nullities to intermediate regime, arising, in the present case, from the combined provisions of Articles 143 and 292 cod. proc. penal.
From this framing, infine, it follows that the defect resulting from the failure to translate the precautionary order, where the circumstance that the arrested person does not know the Italian language emerges before the adoption of the measure, cannot be deduced for the first time in the court of legitimacy, concerning a 'hypothesis of nullity that, as, precisely, general to intermediate regime, must “be challenged with the 'appeal of the order of application before the court of review, remaining otherwise precluded its deductibility and detectability” (Sec. 1, no. 1262 of 12/20/2018, dep. 2019, Urso, Rv. 276482 - 01; in a conforming sense, see Sec. 3, no. 41786 of 10/26/2021, Gabbianelli, Rv. 282460 - 01; Sec. 1, no. 1072 of 11/20/2019, dep. 2020, Luca, Rv. 278069 - 01).
6.2. More complex, on the other hand, appears the further and specular hypothesis, which is verified when the lack of knowledge of the Italian language emerges at a time subsequent to the adoption of the measure disposing of a measure of personal pre-trial detention and which, legitimately, was not accompanied by translation (being therefore not possible in that case the recourse, as in the hypothesis examined above, to the combined provisions of Articles 143 and 292 of the Code of Criminal Procedure).
Unjustified appears, first of all, a treatment of this hypothesis in a “deterrent” sense with respect to the first one already examined, based, as argued by some of the pronouncements passed in review above, on the mere temporal fact of the only subsequent emergence of the non-knowledge of the Italian language: it remains, in fact, in any case unquestionable that, precisely by virtue of what emerged subsequently, the 'person concerned could not have understood, from the beginning, the order, albeit formally legitimate.
Nor, above all, can there be any doubt as to the fact that even in such a hypothesis, explication must be guaranteed as a “perfect directly actionable subjective right,” as such clearly affirmed by the Constitutional Court (Constitutional Court, sentence no. 10 of 1993, cit.), of the necessary understanding on the part of the addressee of a measure affecting the same personal freedom of the same; a different conclusion that would limit itself reductively to noting the lack, within the provision of art. 143 cod. proc. penal and, in this case, the impossibility of recourse to art. 292 cod. proc. penal, of an express sanction concerning the failure to translate into a language known by the defendant non Italian speaking, would end up, inevitably, to make such a statement (all the more authoritative because it was made by the Judge of the eggi) a mere declamation empty of effects, and to arouse more than serious perplexities regarding the very “constitutional tightness” of such an approach, as well as its compliance with the principle of “due process” protected also in supranational.
Such, moreover, is, evidently, the reason that has led the jurisprudential orientation, first examined in section 3.1, to identify in “inefficacy” as the legal system's response to a failure to translate once a lack of knowledge of the Italian language has emerged.
In doing so, however, reference has been made to a category, namely precisely that of inefficacy, which the procedural-penal law contemplates for hypotheses of a different sign (according, in particular, to the content of Articles 284 et seq, 300 and 306 cod. proc. penale), without considering the possibility, which can already be found in the “system” of nullities, of referring instead, in terms certainly more fisiological than the dimension of the “primary” right of defense involved, in the present case, to the provision of art. 178, paragraph 1, lett. c), cod. proc. penale.
pen. dedicated to the need that, on pain of nullity, the provisions concerning the “intervention, assistance and representation” of the accused must be observed.
In such a case, in fact, as already mentioned, it is the very emergence, subsequent to the adoption of the order of remand in custody, that requires the judge to proceed with the translation within a reasonable period of time of the measure, so that the omission of such a fulfillment finishes, affecting the parameter referred to in Article 178, paragraph 1, lett. c), cod. proc. pen, to “contaminate” the procedural sequence completed up to that moment (think also of the 'interrogation of “guarantee” in the meantime put in place), affecting also the validity, to be considered always, for what was initially stated, “provisionally” based on the lack of proof of the lack of knowledge of the Italian language, of the custodial order.
So that, ultimately, it is the same systematic “background” marked by the primary relevance of the right of defense, to which, moreover, Sez. U, no. 5052 of 24/09/2003, dep. 2004, Zalagaitis, cited in the mentioned decision, albeit prior to the national and supranational regulatory changes examined in paragraph 2, had already referred, that must now lead to identify, even in the hypothesis examined, in the intermediate-regime nullity, the sanction to which we must formally refer.
On the other hand, the 'intervention of the suspect or defendant in the proceedings in which he is subjected to a precautionary measure, relevant under art. 178, paragraph 1, lett. c), Code of Criminal Procedure, implies an “active and conscious participation”, which presupposes the effective guarantee of the defensive prerogatives of the trial subject, as affirmed, even in recent times, by this Court (Sect. !5, no. 20885 of 28/04/2021, H., 281152 - 01).
Nor could it be otherwise, given that, as established by this Court in a recent pronouncement, the notion of the defendant's intervention referred to in art. 178, paragraph 1, lett. c), cod. proc. peri, “cannot be ... understood in the sense of the mere fixed presence of the defendant in the proceedings ...”, entailing “the active and conscious participation of the real protagonist of the procedural event, to whom the effective exercise of the rights and faculties of which he is the holder must be guaranteed ...” (Sect. 1, No. 4242 of 20/06/1997, Masone, Rv. 208597 - 01).
6.2.1. This, however, does not detract from the fact that, while awaiting the translation of the precautionary order, the judicial authority, in order to guarantee the right of defense of the accused or thenon Italian speaking suspect, may apply the jurisdictional tools provided for in Article 51 -bis disp. att. cod. proc. pen.
The activation of the procedural mechanisms referred to in Art. 51-bis disp. att. cod. proc. pen. is finalized, as stated in its first paragraph, to ensure the foreign citizen who does not know the Italian language the free assistance of the 'interpreter for the interviews necessary to allow him “the exercise of the right of defense ...”.
And above all, the proceeding authority, as provided for in the second paragraph of Article 51-bis disp. att. cod. proc. penal, where “special reasons of urgency arise and it is not possible to have a written translation of the acts readily ...”, may order by reasoned decree, provided that the right of defense of the non Italian speaking subject is not prejudiced, the “oral translation, even in summary form, drawing up minutes at the same time.”
6.2.2. Once the procedure provided for in Article 51-bis disp. att. cod. proc. pen. is exhausted and before the translation of the custody order is filed, the defendant or the non Italian speaking suspect is then faced with a plurality of jurisdictional alternatives, which depend on the defensive strategies that, from time to time, are intended to be pursued.
It remains understood, of course, that the arrested person may waive the written translation of the restraining order, as provided for in Article 51 -bis, paragraph 3, disp. att. cod. proc. pen. The waiver of translation, however, must be conscious, in line with what is stated in Article 3(8) of Directive 2010/64/EU of the European Parliament and of the Council of October 20, 2010, which recognizes such an option provided that “suspects or defendants have benefited from prior legal advice or have otherwise become fully aware of the consequences of such waiver and that it is unequivocal and voluntary.”
7. The fact that both hypotheses of omission of translation can be classified as intermediate nullities makes it necessary to address a further question, concerning the identification of the interest that must support the appeal of the non Italian speaking.
This hermeneutical question, in fact, was raised, with different arguments, both in the appealed order and in the indictment submitted by the Advocate General at the Court of Cassation.
It is necessary, in this regard, to observe, anticipating as of now what will assume importance later on with reference to the grounds of appeal, that the non Italian speaking subject who complains of the violation of his defensive prerogatives, as a result of the failure to translate the restraining order adopted against him, cannot simply complain about the omission but, in keeping with the general intermediate nature of the nullities, which, in the present case, come to the fore, he has the burden of indicating the existence of a concrete, current and verifiable interest in the appeal, the mere allegation of an abstract or potential prejudice not being relevant in this sense (among others, Sec. 2, no. 33455 of 20/04/2023, Mortellaro, Rv. 285186 - 01; Sec. 4, no. 4789 of 19/02/1992, Sità, Rv. 189947-01).
The 'interest in inferring such a procedural pathology, in fact, exists only if and insofar as the non Italian speaking subject has attached that he has suffered, as a result of the untranslated order, an illegitimate prejudice. On this point, it is worth recalling Sect. 1, No. 13291 of Nov. 19, 1998, Senneca, Rv. 211870 -01, according to which no nullity of the act can be prefigured where “it is only the 'defendant who complains about it, without indicating a concrete and current interest of his in this regard, not having any value the mere allegation of an entirely abstract prejudice.”
This is, on closer inspection, a conclusion imposed by established case law on the subject of interest in appeal, dating back to Sect. U, no. 6624 of 27/10/2011, dep. 2012, Marinaj, Rv. 251693 - 01, according to which this notion must be reconstructed “in a utilitarian perspective, that is, in the negative finality, pursued by the person entitled, of removing a situation of procedural disadvantage resulting from a judicial decision, and in that, positive, of the attainment of a utility, that is, of a decision that is more advantageous than the one being appealed, and which is logically consistent with the regulatory system.”
8. There remains, at this point, a final hermeneutic question, the resolution of which is required in light of the question posed to the United Sections, concerning the 'framing of the notion of appropriateness of the time limit within which, pursuant to Article 143, paragraph 2, of the Code of Criminal Procedure, the order ordering a personal pre-trial measure against a foreign national who does not know the Italian language must be translated.
On this residual profile, indeed, there are no jurisprudential contrasts, as it is pacific that the verification of the appropriateness of the time limit referred to in Article 143, paragraph 2, of the Code of Criminal Procedure, while not easy, is a question of fact referred to the assessment of the judge of merit, which is exempt from the review of legitimacy, where motivated, in accordance with the criteria of logic and the maxims of experience, in compliance with the procedural emergencies.
In this regard, one cannot fail to recall the following principle of law: “The ascertainment of the defendant's knowledge of the Italian language is the responsibility of the judge of merit, constituting an inquiry of mere fact that cannot be censured in the court of legitimacy if motivated in correct and exhaustive terms” (Sez. 6, no. 28697 of 04/17/2012, Wu, Rv. 253250 - 01; see, in substantially the same sense, also Sez. 2, no. 46139 of 10/28/2015, Reznikov, Rv. 265213 - 01; Sez. 1, no. 2263 of 14/05/2014, Tahiri, Rv. 261998 - 01; Sect. 5, no. 33775 of 27/02/2014, Ilie, Rv. 261640 - 01; Sect. 2, no. 40807 of 06/10/2005, Sokolovych, Rv. 232593 - 01).
The judge of merit, therefore, is required to make a rigorous assessment of the factual profiles relating to the manner in which the translation of the act was carried out, as affirmed by the jurisprudence of legitimacy, which, already in the past, had specified how the consequences on the level of the validity of the precautionary measure are produced in the hypothesis of translations made in an incongruous term, in assessing which it is necessary, among other things, to take “into account the technical time required to find the 'interpreter and carry out the translation, with the consequence that no nullity exists when such time is contained within a few days” (Sez. 6, No. 48469 of 04/12/2008, Abdalla, Rv. 242147 - 01; in a similar sense, see also Sec. 6, No. 9041 of 15/02/2006, El Kamlichi, Rv. 233916 - 01).
This last jurisprudential reference is appropriate in order to understand that the factual profiles in question can take on an extremely varied significance, since the technical time required for the translation of a procedural act may depend on a multiplicity of factors, heterogeneous among themselves, such as, for example, the complexity of the measure to be translated; the large number of subjects involved in the translation operations; the difficulty of finding a translator who understands the language of the non Italian speaking subject, due to the rarity of the idiom spoken by the foreigner.
In this varied context, can play an 'important function of balancing the opposing needs of the parties - the prosecutor and the' suspect or defendant non Italian speaking - the tool provided by art. 51-bis disp. att. cod. proc. pen, on which we have already dwelt in paragraph 6.2.1, which can be used by the court of merit to amortize the time required to translate the document into the language known by the foreign national, especially when this procedural fulfilment, for the reasons mentioned above, is made complicated by the concrete case.
8.1. Without prejudice to these considerations, it should also be emphasized, on the other hand, that it must be avoided to attribute to the notion of adequacy of the time limit referred to in Article 143, paragraph 2, of the Code of Criminal Procedure, connotations so generic as to give rise to elusive interpretations of the procedural canons referred to in the combined provisions of Articles 24, second paragraph, and, 6, paragraph 3, lett. a), ECHR, placed to safeguard the right of defense of the suspect or accused non Italian speaking.
To avoid these risks, reference should be made to Article 6(3)(a). (a), ECHR, which clarifies, unambiguously, that the translation of a procedural document must take place, obviously compatible with what has already been stressed above, “in the shortest possible time,” with the consequence that, having acquired knowledge of the 'ignorance of the Italian language on the part of the person against whom proceedings are being conducted, the judicial authority must identify without delay an interpreter who knows the language of the 'non Italian speaking suspect or accused, in order to enable him to exercise his right of defense; Guarantee connotations, these, on which the EDU Court, on several occasions, has dwelt (among others, EDU Court, Bhiarki v. Iceland, 15/03/2022, No. 30965/17, para. 49; EDU Court, 08/03/2002, Tonkov v. Belgium, No. 41115/14, para. 38; EDU Court, 18/12/2018, Murtazaliyeva v. Russia, No. 36658/05, para. 117; EDU Court, 09/11/2018, Beuze v. Belgium, No. 71409/10, para. 119; EDU Court, 11/27/2018, Stojkovic v. France and Belgium, No. 25303/08, para. 55).
On the other hand, that the reference to the phrase “as soon as possible,” contained in Art. 6(3)(a) ECHR, implies the immediate activation of the powers of the proceeding authority finalized to the appointment of an interpreter is further confirmed by Directive 2010/64/EU of the European Parliament and of the Council of October 20, 2010 on the right to 'interpretation and translation in criminal proceedings, already examined in paragraph 2. Exemplary representation of what is being affirmed can be found in the first sentence of paragraph 18 of the preamble of the Directive, which states that the “ interpretation for the benefit of suspects and defendants should be provided without delay ...”, making use of a phrase, “without delay”, synonymous with the phrase “as soon as possible” used by the aforementioned 6, par. 3, lett. a).
Moreover, the provision of Article 14(3) of the International Covenant on Civil and Political Rights, signed in New York on December 19, 1966, also examined in paragraph 2, which constitutes a mirror norm to Article 6(3)(a) ECHR, also moves in the same hermeneutical direction. Indeed, the aforementioned Article 14 recognizes an inalienable core of guarantees to the accused, including that of being “promptly informed,” in a language he understands, of the nature and grounds of the charges against him in criminal proceedings.
9. In light of the arguments finally set forth herein, the hermeneutic question referred to must be resolved by affirming the following principle of law: “The order of personal custody issued against an non Italian speaking defendant or suspect, where it has already emerged that he or she does not know the Italian language, is affected, in the event of failure to translate, by nullity pursuant to the combined provisions of Articles 143 and 292 of the Code of Criminal Procedure. Where, on the other hand, it has not already emerged that the 'suspect or accused non Italian speaking does not know the Italian language, the untranslated pre-trial detention order issued against him is valid finally until the moment in which it turns out the lack of knowledge of that language, which entails the obligation to translate the measure within a reasonable time; failure to translate determines the nullity of the 'entire sequence of procedural actscompleted up to that moment, in it including the order of pre-trial detention.”
10. On the basis of the regulae iuris outlined in the preceding paragraph, it is then possible to move on to the grievances proposed in the interest of A.A.
It is necessary, first of all, to dwell on the second plea alleging the violation of Articles 143, paragraphs 5 and 6, 144, 146, 147 and 310 paragraph 2, of the Code of Criminal Procedure, resulting from the erroneous response of the order on the failure to transmit to the Court of Re-examination of Rome the order by which the Judge for Preliminary Investigations of the Court of Rome had ordered the translation, and the lack of knowledge of the date of this and its author.
These grievances, as said, have already been examined by the Referring Section, but, on the same, it is necessary to dwell again, in compliance with the established case law of this Court, according to which the appeal must be referred to the United Sections and must be examined by them in its entirety, since a decision limited only to some of the issues deduced with the appeal is not possible (among others, Sez. U, No. 28 of 25/10/2000, Morici, Rv. 217297 - 01; Sec. U, No. 17 of 21/06/2000, Primavera, Rv. 216660 - 01).
That being said, as to the grievance relating to the failure to transmit the order by which the genetic precautionary measure was ordered to be translated, it must be noted, in line with what has already been pointed out in the order of remittal, that, in the hypothesis of the precautionary appeal, the terms provided by Article 310, paragraph 2, of the Code of Criminal Procedure. are ordinary in nature, providing no sanction in case of failure to comply with the time limit within which the proceeding authority must transmit to the court of review the appealed order and the acts on which it is based, with the consequence that such failure is not a cause of nullity or inefficacy of the measure adopted (among others, Sez. 6, no. 16802 of 03/24/2021, Grassetti, Rv. 281303 - 01; Sect. 5, no. 6221 of 08/01/2020, Granato, Rv. 278308 - 01; Sect. 5, no. 14966 of 12/10/2004, dep. 2005, Vettori, Rv. 231622 - 01).
On the other hand, as to the related complaint, according to which the appellant had not been aware of the date of the order ordering the translation of the genetic precautionary order and the person to whom the 'assignment had been given, it must be noted, that, as already pointed out in the order of remittal, no evidence has been provided that the appellant's counsel had “requested access to these acts with an express request to the Judge of the precautionary order, so that today's complaints must be considered, on this point, entirely generic.”
The appellant, therefore, could not limit himself to complaining generically about the failure to show the procedure for the appointment of the translator, but should have shown that he had submitted to the Judge for Preliminary Investigations of the Court of Rome specific requests, relating to the conduct of translation operations, which remained unanswered.
These considerations make it necessary to reiterate the inadmissibility of the second ground of appeal.
11. Similarly inadmissible must be considered the remaining grievances, put forward as the first, third and fourth plea, of which a joint treatment is required, as they relate, directly or indirectly, to the same censorial profiles, concerning the untimely translation of the order of genetic custody and the type of defect of the act that derives from the tardiness of this procedural fulfillment.
Consider, in fact, that with the first ground of appeal, the interpretation of the Court of Review of Rome, according to which the appellant had not indicated the prejudice suffered by the failure to translate the genetic precautionary order; with the third ground of appeal, it is contested that the Tribunal had considered irrelevant the failure of the Judge for Preliminary Investigations of the Court of Rome to respond to the exceptions of inefficacy of the measure, erroneously held to be solicitations to order the translation; with the fourth ground of appeal, it is censured the Tribunal's failure to respond to the complained failure to observe the adequacy of the time limit set for the translation, which would have resulted in the ineffectiveness of the measure.
In this censorious context, it must be observed that the custody order issued against the appellant by the Judge for Preliminary Investigations of the Court of Rome on July 22, 2022, on the basis of the principle of law affirmed in paragraph 9, must be considered affected by a general nullity with intermediate regime, relevant under the combined provisions of Articles 143 and 292 of the Code of Criminal Procedure, since the suspect's ignorance of the Italian language was already known to the proceeding authority at the time of the adoption of the restrictive measure.
This procedural fact is uncontroversial, given that the validation hearing of the arrest was held with the assistance of a Polish-speaking interpreter, appointed on the assumption that A.A. did not know Italian. This fact, moreover, is reiterated in the order rejecting the application filed by the suspect pursuant to Article 310 of the Code of Criminal Procedure, ruled by the Court of Review of Rome on January 24, 2023, which is being appealed.
It should in any case be added that, once the procedural pathology resulting from the failure to translate ab origine is framed as a general nullity with an intermediate regime - all the more confirming what Sez. U, no. 5052 of September 24, 2003, dep. 2004, Zalagaitis, cited above, had already said on this specific hypothesis of nullity, albeit relying on art. 178, paragraph 1, lett. c), of the Italian Penal Code and not on art. 292 of the Italian Penal Code - it is evident that, in the case under examination, the Court of Review of the case of the investigation of the crime of the crime of the crime of the murder of the suspect pursuant to art. 310 of the Italian Penal Code, which was the subject of the appeal. - it is clear that, in the case at hand, we are not faced with a 'hypothesis of inefficacy of the genetic custody order, as the appellant has continued to assert.
It appears, infine, in any case, decisive what the Tribunal maintained regarding the lack of deduction of a concrete prejudice resulting from the manner of translation of the genetic restraining order, in application of the jurisprudential principle, expressly referred to (Sez. 6, no. 25276 of 06/04/2017, Money, Rv. 270491 - 01), according to which “there can be an injury to the right of defense, related to the personal activation of the 'appeal by the defendant, only if the latter highlights the concrete and real prejudice to his prerogatives resulting from the lack of translation.”
Indeed, it should be borne in mind, in this regard, that A.A. proposed a precautionary appeal on October 24, 2022, after the translation of the genetic precautionary measure issued by the Judge for Preliminary Investigations of the Court of Rome, filed on October 6, 2022 and notified to the suspect on October 11, 2022, a procedural fact, this, uncontroversial and not contested by the appellant.
It follows that the latter, having already had knowledge of the translation of the restraining order at the time of the lodging of the precautionary appeal, in accordance with the hermeneutic orientation correctly referred to by the Tribunal and already recalled above in paragraph 7, according to which, in order to censure a general intermediate nullity of a procedural act, it is necessary to infer a concrete and actual prejudice -, should have demonstrated how, with respect to the motivational content of the order, the lack of timely knowledge of the same would have influenced his own defensive strategies; a demonstration that A. A. did not provide, merely contesting generically the tardiness of the translation.
This failure to deduce appears prejudicially productive of inadmissibility with respect to all the grievances raised.
12. In conclusion, the considerations set forth above require that the appeal brought by A.A. be declared inadmissible, with the appellant consequently ordered to pay the costs of the proceedings.
The declaration of inadmissibility of the appeal, which is the result of the exegetical option affirmed by this Court to decide the disputed issue for the resolution of which the intervention of the United Sections has been invoked, cannot be followed by an order that the appellant pay a sum in favor of the Fine Fund, pursuant to art. 616 Code of Criminal Procedure (among others, Sec. U, no. 43055 of 09/30/2010, Della Serra, Rv. 248380 - 01; Sec. U, no. 33542 of 06/27/2001, Cavalera, Rv. 219532 - 01).
P.Q.M.
Declares the appeal inadmissible and orders the appellant to pay court costs.
Thus decided on October 26, 2023. Filed in the Court Registry on April 11, 2024.