It constitutes a prerequisite for the exercise of the defensive prerogatives of the non Italian speaking defendant to understand the reasons for which deprivation of liberty has taken place, which presupposes linguistic knowledge, either direct or mediated by an interpreter, of the charges against him, 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 defence [...]”. The order of pretrial detention in extradition proceedings which hasn't been translated in writing but only verbally must be annulled, provided that the nullity has been timely objected to.
(unofficial machine translation)
Supreme Court
Sentence Sec. VI Criminal
No. 40153 Year 2024 President: DI STEFANO PIERLUIGI Rapporteur: TONDIN FEDERICA
Date of hearing: 23/10/2024 - filing 30/10/2024
On the appeal brought by:
R**s , alias ^^, born on 23/06/1979 in Russia
against the order of 05/07/2024 of the Court of Appeal of Milan
Having regard to the acts, the order appealed against and the appeal;
Hearing the report delivered by Councilor Federica Tondin;
heard the requests of the Public Prosecutor, in the person of Deputy Attorney General Giuseppe Riccardi, who concluded by requesting the annulment of the appealed order;
read the brief of defense counsel Nicola Canestrini, who asked that the appeal be granted;
Hearing attorney Nicola Canestrini, who insisted that the appeal be granted.
HELD IN FACT
1. The order indicated in the epigraph by which the Court of Appeal of Milan, having validated his arrest for extradition purposes, applied the measure of pre-trial detention in prison to R**s is appealed.
The Court noted that an international arrest warrant was issued against the applicant on January 26, 2024, by the U.S. District Court for the District of Florida, in connection with the crimes of conspiracy to commit money laundering-in violation of Title 18 of the U.S. Code 1956(h)-and operating unlicensed money transmitting activities-in violation of Title 18 of the U.S. Code, Sections 1960 (B-1-B9, B-1-c, and 2)-which are also punishable under the Italian Criminal Code (Articles 416 and 648 of the Criminal Code).
Noting that the requesting state provided sufficient elements for the understanding of the charges against the arrested, it validated the arrest and, recognizing a concrete and present danger of flight, in application of Article 12 of the Extradition Treaty between Italy and the United States of October 13, 1983, ratified by Law No. 224 of May 26, 1984, ordered that R**s remain in pre-trial detention in execution of the arrest warrant.
2. R**s defense counsel appealed against the said order in cassation, denouncing a single ground for annulment, summarized below in accordance with the provisions of Article 173 disp. att. cod. proc. penale.
They allege violations of procedural law in relation to Articles 143 and 180 of the Code of Criminal Procedure.
The order validating the arrest and applying precautionary measures was not translated into a language comprehensible to the appellant who, from the moment of arrest, declared that he did not speak Italian. Given that the ignorance of the Italian language was known to the prosecuting authority, the failure to translate the order constitutes grounds for its nullity.
The nullity was objected to by the defense at the first useful opportunity, i.e., at the hearing set pursuant to Article 717 of the Italian Criminal Code, also pointing out that, as a result of the lack of translation, the extradited person did not understand the charges against him and was unable to speak with his defense counsel and articulate his defense at the hearing. The defense produced a memorandum on the point, limiting itself, then, to deducting non-substantive defense arguments (relating to the abstract subsumability of the facts charged to cases provided for in the Italian legal system, the existence of a concrete risk of inhuman or degrading treatment, the possibility of replacing the measure in place with house arrest) so that the nullity cannot be said to be cured under Article 183, paragraph 1, lett. b), Code of Criminal Procedure.
Nor can the reading of the order in English by the interpreter arranged at the end of the hearing under Article 717 of the Code of Criminal Procedure be considered equivalent to translation. In fact, the right to use an interpreter under Article 143, Paragraph 1 of the Code of Criminal Procedure is distinct from the right to translation of basic acts under Paragraph 2 below.
CONSIDERED IN LAW
1. The appeal is well founded.
2. At the time of his arrest, which was executed pursuant to Article 716 of the Code of Criminal Procedure on July 3, 2024, the appellant stated that he did not speak or understand Italian and requested that the documents be translated into English for him. Thus, the record of identification and declaration of domicile, also containing information on the right of defense, was translated into English.
In contrast, the order validating the arrest and applying precautionary measures, dated July 5, 2024, was not translated.
At the hearing set pursuant to Article 717 of the Criminal Procedure Code for the identification and hearing of the arrested person was held the following July 9, 2024, in the presence of an English-speaking interpreter.
The appellant reiterated that he was unable to speak on the charges against him because he did not understand the documents, which were drafted only in Italian; defense counsel objected that the order was null and void due to lack of translation and requested that the measure be revoked. At the judge's instruction, the interpreter read the order in English.
2. Orders ordering personal precautionary measures are among those which, pursuant to Article 143(2) of the Code of Criminal Procedure, must necessarily be translated if the person against whom they are issued does not know the Italian language.
The United Sections of the Court of Cassation, called upon to settle an interpretative contrast concerning the identification of the procedural consequences arising from the omission or delayed translation of the measure ordering a personal pre-trial measure against an alloglot person who does not know the Italian language, specified that the right of alloglot defendants and suspects to obtain a translation into a known language of the measures ordering a personal pre-trial measure against them is derived from a plurality of normative sources, both national and supranational: Art. 6 of the European Convention on Human Rights, which, 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 accusation against him”; Article 111 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 [. 1” and ‘shall be assisted by an interpreter if he or she does not understand or speak the language used in the trial’; Directive 2010/64/EU of the European Parliament and of the Council of October 20, 2010, transposed into our legal system by Legislative Decree No. 32 of March 4, 2014, which reformulated Article 143 of the Code of Criminal Procedure.
On the level of international covenant law, 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 subparagraph (a), of “being promptly and circumstantially informed, in a language comprehensible to him, of the nature and grounds of the accusation against him.”
That being said, the Joint Sections distinguished between cases in which the foreign national's lack of knowledge of the Italian language emerges even before the issuance of the order disposing of a personal pre-trial measure and those in which it emerges at a later time.
In the first case, which is of interest here because from the moment of arrest the appellant declared that he did not speak or understand Italian, “the precautionary measure must be considered adopted, where the translation is not carried out in congruous terms, as provided for in Article 143, paragraph 2, of the 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 freedom.
Indeed, it constitutes a prerequisite for the exercise of the defensive prerogatives of the alloglotta subject to understand the reasons for which the deprivation of personal liberty has taken place, which presupposes linguistic knowledge, either direct or mediated by an interpreter, of the charges against him, 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 art. 292, paragraph 2, of the Code of Criminal Procedure that makes the linguistic understanding of the charges 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 an indication of the rules of law allegedly violated.” This act, moreover, as prescribed by subparagraph (c) of the same rule, must contain “the exposition and independent evaluation of the specific precautionary needs and the clues that concretely justify the measure ordered, with an indication of the elements of the act from which they are inferred and the reasons for which they assume relevance, also taking into account the time elapsed since the commission of the crime.” Article 292, paragraph 2, of the Criminal Procedural Code 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 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, no. 2228 of 10/04/1995, Polisi, Rv. 201461 - 01; Sect. 1, no. 4179 of 02/10/1994, Kourami, Rv. 199465 - 01).
It is necessary, therefore, to reiterate the need to bring back the hypotheses in which the lack of knowledge of the Italian language on the part of the suspect or the alloglotta defendant emerges before the issuance of the precautionary measure to the procedural category of nullities with an intermediate regime, deriving, in the case at hand, from the combined provisions of Articles 143 and 292 of the Code of Criminal Procedure.” (Sec. U - , Judgment No. 15069 of 26/10/2023, Niecko, Rv. 286356).
3. Following the approach of the United Sections (art. 618 of the Code of Criminal Procedure) in the present case, therefore, the order applying precautionary measures, insofar as it was not translated, must be considered null and void.
The nullity was timely objected to by the defense counsel at the first useful opportunity, i.e., at the hearing for the identification and hearing of the appellant, set pursuant to Article 717 of the Code of Criminal Procedure, by filing a written statement, the content of which was reiterated orally.
It must, likewise, be held that there is an interest in deducing such nullity, inasmuch as the failure to understand the order, which sets forth the charges formulated by the requesting state in the international arrest warrant issued by the United States District Court for the Middle District of Florida as well as the exposition of the precautionary requirements underlying the adoption of the measure, prejudiced the right of defense, as deduced by the appellant, who promptly noted that he was unable to interject the charges against him.
It should also be pointed out that the English-language reading of the order by the interpreter at the end of the validation hearing cannot be considered equivalent to a written translation. In fact, the conditions for the application of Article 51-bis, disp. att. cod. proc. pen. (which provides, in paragraph 2, that “when there are special reasons of urgency and it is not possible to readily have 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 defendant's right of defense, an oral translation, including in summary form, drawing up minutes at the same time”), in the absence of a decree of the proceeding authority.
As for the consequences of the deduced nullity, it should first be considered that, with reference to common precautionary measures, the SS.UU. noted that the nullity in question does not entail the effect of the ineffectiveness of the measure provided for other hypotheses (“standing, in particular, to the content of Articles 284 et seq., 300 and 306 cod. proc. penale”). Therefore, the ordinary rules on nullity set forth in Art. 185 of the Code of Criminal Procedure apply, with the regression to the state in which the null act was performed in order to proceed to its renewal and those “consecutive acts that depend on the one declared null.”
It should, then, be considered that an effect of ineffectiveness as a result of the failure or delayed hearing of the extradited person, according to the model of Art. 302 of the Code of Criminal Procedure for the case of omitted (or invalid) interrogation.is textually excluded by operating the specific, and different, discipline of Art. 717 of the Code of Criminal Procedure ("In extradition matters, failure to observe the five-day time limit, provided for in Art. 717, paragraph 1, of the Code of Criminal Procedure, within which the hearing of the person subjected to a coercive measure must take place, does not determine any consequence, since it is not a peremptory term and, in any case, having to exclude an application of the provisions in force on personal precautionary measures, for which the ineffectiveness of the measure is expressly provided for in the hypothesis of omitted or untimely interrogation of guarantee” Sez. 6, no. 41732 of 02/10/2006, Rv. 235298).
4. In conclusion, the contested order should be annulled, insofar as translation was not ordered, with referral to another Section of the Court of Appeal of Milan for translation and renewal of all subsequent acts.
P.Q.M.
Annuls the appealed order with referral for new judgment to the Court of Appeals of Milan.
Sends to the clerk's office for the fulfillments referred to in Article 94, paragraph disp. att. cod. proc. pen.
Thus decided on 23/10/2024