Copyrights violations sanctionend by an administrative fine cannot be punished twice (Engel criteria) with direct application of art 50 EU Charta.
COURT OF ROVERETO
sitting as single judge
judgment 2/23 of 10.1.2023
in the person of Judge Dr Fabio Peloso, at the hearing of 10/01/2023, pronounced and published, by reading the operative part, the following
- pursuant to Articles 442 and 649 of the Code of Criminal Procedure -
in respect of:
BD born in Rovereto on **, living in **, defended by Avv. Nicola Canestrini, of the Court of Rovereto
FREE - PRESENT
of the criminal offence laid down in Article 171bis of Law No 633/1941, because, in his capacity as legal representative and sole director of *** Srl, in order to make a profit, he possessed for commercial or business purposes the computer program known as 'Adobe Acrobat Pro DC' without the relevant licence for its use and which was installed on five personal computers in use by employees of the abovementioned company.
In Rovereto, on 26 June 2019.
With the intervention of the Public Prosecutor, Dr Elisa Beltrame, and of the defendant's counsel, Mr Nicola Canestrini.
Conclusions of the parties:
The parties have jointly requested to pronounce a judgment of non-prosecution because a sanction substantially criminal for the same fact has already been imposed in direct application of Article 50 CDFUE.
GROUNDS FOR THE DECISION
1.1. The defendant was brought to trial to answer for the criminal offence of illegal possession for business purposes of computer programs, analytically described under the heading, and tried under the abridged procedure conditioned to the production of documents.
1.2. The defendant must be considered to be present, although he never appeared, as he was represented at the hearing by his defence counsel, a special prosecutor appointed for the request for special proceedings.
1.3. Pursuant to Article 441, para. 5, of the Code of Criminal Procedure, the G.D.F.'s notice of administrative violation pursuant to Article 174 bis of Law 633/1941 of ** dated 10/07/2019 and the documentation relating to the oblation of the administrative penalty were acquired ex officio.
1.4. At the end of the discussion, the parties concluded as in the epigraph.
From the investigation documents, the existence of the contested fact is unquestionable.
In fact, during an access carried out by the G.D.F. of **, on **/2019, at the premises of ***, the installation of the software "Adobe Acrobat Pro DC" was detected on five PCs, without the relevant licence.
It also appears that the defendant was the sole director of the company, from which it was evident that the unauthorised possession of the software was attributable to his activity.
In the course of the trial, the above-mentioned acts of the administrative sanctioning procedure were acquired, pursuant to Article 441(5) of the Code of Criminal Procedure.
From such acts it appears that, for the same fact contested in the present case, the defendant, as l.r.p.t. of the company *** S.r.l., was charged with the infringement of Article 174 bis L. 633/1941, a provision that administratively sanctions with a fine the same infringement punished by Article 171 bis L. 633/1941.
Following such contestation, the defendant, as l.r.p.t. of said company, made the reduced payment pursuant to Article 16 L. 689/1981, thus concluding the administrative sanctioning procedure with the payment of the fine of € 2,273.00 (See F23 receipt dated 09/08/2019 in the deeds).
It follows that, for the same fact, the defendant was subject to administrative sanctioning proceedings pursuant to Law 633/1941 and is now subject to criminal proceedings.
In this regard, the Constitutional Court, in judgement no. 149/2022 of 16/06/2022, censured the double track system of sanctions provided for by the Copyright Law, stating that "the 'double track' system under examination is not normatively devised in such a way as to ensure that the two sanctioning proceedings provided for provide a coherent and substantially unified response to the offences concerning copyright infringements, already criminally sanctioned by Article 171-ter of Law no. 633 of 1941. The two proceedings originate from the same conduct, but then follow autonomous paths, which neither intersect nor coordinate with each other in any way, thus inevitably creating the conditions for the occurrence of systemic violations of the right to ne bis in idem".
The Constitutional Court thus declared the unconstitutionality of Article 649 of the Code of Criminal Procedure in the part in which it does not provide for the judge to pronounce a sentence of acquittal or not to proceed against a defendant for one of the offences provided for by Article 171 ter of Law 633/1941 who, in relation to the same fact, has already been subject to proceedings, definitively concluded, for the administrative offence provided for by Article 174 bis of the same law.
The considerations of the Constitutional Court concerning Article 171 ter L. 633/1941 also apply to Article 171 bis L. 633/1941, given that the double track system is substantially similar and results in a clear violation of the right to ne bis in idem.
- Articles 171 bis and 174 bis 633/1941 penalise the same acts;
- the administrative fine provided for in Article 174 bis 633/1941 is punitive in nature and substantially criminal in the light of the criteria of the ECHR judgment known as Engel;
- the administrative and criminal sanction proceedings do not have a close substantive and temporal connection such as to make them parts of a single integrated system of protection incapable of producing disproportionate effects on fundamental rights according to the ECHR's judgment in A and B v Norway.
Consequently, in the present case, there is a breach of the prohibition of ne bis in idem laid down by Article 4 Protocol No 7 ECHR, since the defendant is subject to criminal proceedings after the imposition of an essentially criminal penalty.
Considering that the aforementioned ruling of the Constitutional Court is not specifically applicable to the present case, since it concerns the criminal provision set forth in Article 171 ter of Law 633/1941, the judge may raise a new issue of constitutional legitimacy, or, considering that copyright law is a matter governed by the European Union's secondary legislation, through Directive 2001/29/EC, the judge may disapply the domestic legislation in order to ensure the application of Article 50 CDFUE (Charter of Fundamental Rights of the European Union), which protects in the European Union context against infringements of ne bis in idem, with a level of protection that cannot be lower than that offered by the European Convention for the Protection of Human Rights and Fundamental Freedoms, by virtue of Article 53 CDFUE (see in this regard the above-mentioned ruling of the Constitutional Court).
This court considers that it should not raise a question of constitutional legitimacy and should directly disapply the domestic legislation contrary to Article 50 CDFUE, in order to avoid the infringement of the fundamental right not to be tried twice for the same offence.
For that reason, disapplying the criminal sanctions legislation, it must be decided that the defendant should not be prosecuted in respect of the criminal offence for which he has been charged, since an essentially criminal sanction has already been imposed for the same act.
THE COURT OF ROVERETO
in monocratic composition
- Having regard to Articles 442 and 649 of the Code of Criminal Procedure
that there is no need to proceed against BD, as regards the crime ascribed, since a sanction substantially penal for the same fact has already been inflicted.
Dr Fabio Peloso