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Appeal fails to rehear witnesses in overturning acquittal does not ban extradition (Cass. 11490/23)

17 March 2023, Italian Supreme Court

Failure to rehear direct witness by overturning first instance accqittal does not constitute a violation of one of the fundamental principles of the Italian legal system, relevant for banning extradition under Art. 705(2)(b) of the Code of Criminal Procedure (requesting State: Albania). 

(automatic not official translation)

Judgment no. 11490 of 2023
January 27, 2023 (filed March 17)

composed of Angelo Costanzo Orlando Villoni Ersilia Calvanese Ercole Aprile Fabrizio D'Arcangelo - President - Rapporteur delivered the following


on the appeal brought by: SR alias **, born in Albania **/1975 against Judgment No. 26/22 of the Court of Appeal of Naples of 04/10/2022

read the acts, the appeal and the judgment appealed;

heard the report of Councilor Orlando Villoni;

read the written indictment of the public prosecutor in the person of Deputy Attorney General Antonietta Picardi, who concluded that it was inadmissible


1. In the judgment under appeal, the Naples Court of Appeal held that the conditions existed for ordering SR's extradition to Albania on the strength of a request made by the authorities of that country on the basis of a conviction that had become enforceable for the crimes of participation in a structured criminal group and two episodes of aiding and abetting the illegal entry of Albanian citizens to countries of the European Union and in particular Italy (articles 333 a/2, 28/5, 298/3 and 334/1 of the Albanian Criminal Code).

2. The extraditee appealed against the judgment in cassation, putting forward a single articulated ground of complaint. Violation of the law in relation to Articles 706, 705, paragraph 2, lett. a), b) c) and 603, paragraph 3-bis, of the Code of Criminal Procedure and 6, par. 1 and 2 Conv. ECHR and apparent motivation in relation to the alleged violation of the defendant's fundamental rights in the context of the proceedings held against him in Albania and at the outcome of which an irrevocable conviction was pronounced.

The appellant exposes that, on appeal, the judgment of first instance was reformed in a pejorative sense not only with regard to the acquittal from the crime of associative nature but also with reference to the requalification in an aggravated form of the hypothesis of complicity in the crime of aiding and abetting illegal immigration in the absence of renewal of the trial investigation.

Unlike what the Court of Appeals ruled, in fact, the reformatio in peius was based on a different evaluation not only of evidence of a documentary nature (outcomes of telephone wiretaps) but also of the testimony of persons favored in the illegal border crossing. Nor could the holding of the trial at first instance under an abbreviated procedure exempt the appellate court from renewing the declarative evidence, since it was not required to do so only where the testimony taken at first instance was not decisive for the decision on liability. In fact, in the case at hand, the Albanian Court of Appeal pointed out "that the crime is proven not only by the transcripts of the intercepted telephone conversations but also by the testimonies/statements of the recruited persons (...) who claimed to have paid various sums in exchange for the help in crossing the borders with destination to the countries of the European Union" (p. 28 sent. appeal no. 37/2016).

Moreover, during the trial at second instance, the defendant declared contumacious, was assisted by a public defender, only after the finalization of the trial stage having issued a special power of attorney to a trusted one.


1. The appeal is unfounded and must be dismissed.

2. With reference to the main core of the motive of censure carried out by the appellant, it should be preliminarily noted that from the judgment of appeal rendered in Albania, transmitted in Italian translation as an attachment to the request for extradition, it is clear that the first instance ruling had been issued following the defendant's request to be tried by abbreviated procedure (p. 8, Sent. Court of Assizes of Appeal No. 75 of December 6, 2012). The Albanian appellate judges did not, therefore, deem it necessary to proceed with the renewal of the trial inquiry, programmatically expounding at the beginning of their reasoning that the panel based its decision on the evidence acquired at first instance (p. 9 sent. cit.).

That being said, the denounced violation of one of the fundamental principles of the Italian legal system, relevant for extradition purposes pursuant to Article 705, paragraph 2, lett. b), of the Italian Code of Criminal Procedure and represented by the rule - borrowed from the conventional parameter of Article 6, paragraph 3, lett. d, of the Conv. EDU and from the case law of the Strasbourg Court - dictated by Article 603, paragraph 3-bis of the Italian Code of Criminal Procedure, does not exist in the case under examination.

It is true, in fact, that the jurisprudence of this Court of Cassation, prior to the 2017 legislative change (Law no. 103 of June 23) in fact receptive to the interpretive elaboration, had affirmed the principle according to which it is affected by a defect of motivation, for failure to comply with the canon of judgment "beyond a reasonable doubt," the judgment of appeal that, on appeal by the prosecutor, affirms the responsibility of the defendant, in reform of an acquittal judgment issued at the outcome of an unconditional summary judgment, operating a different assessment of declarative evidence considered decisive, without that in the judgment of appeal there has been an examination of the persons who have made such statements (Sez. U, no. 18620 of 19/01/2017, Patalano, Rv. 269785).

The halt was, however, notoriously overtaken by the same conventional jurisprudence, which in the ECHR judgment of March 25, 2021, Di Martino and 3 Molinari v. Italy (ECHR Rec. no. 15931/15 and 16459/15) ruled that in the case brought to its attention the appellate court was not obliged to renew the testimony of three collaborators of justice, who had been heard in their capacity as persons able to report circumstances useful for the investigation, pointing out that, through the request for the establishment of the rite the appellants, assisted by their defense attorneys, had agreed to defend themselves on the basis of the documents contained in the preliminary investigation file, of which they had had knowledge, unequivocally waiving their right to obtain the hearing of the witnesses, including those whose examination they had later complained about in the appeal proceedings.

More significant, moreover, is the circumstance that the current version of Article 603, Paragraph 3-bis, as amended by Article 34, Paragraph 1(i)(1) of Legislative Decree Oct. 10, 2022, no. 150 specified that the principle of the generalized need to renew the trial investigation in the event of reform in peius of a judgment of acquittal 'for reasons pertaining to the evaluation of declarative evidence' applies in cases of declarative evidence taken at the hearing during the trial at first instance and at the outcome of evidentiary integration ordered in the abbreviated trial pursuant to Articles 438, paragraph 5, and 541, paragraph 3, cod. proc. penal and thus not in the case of the so-called dry abbreviated trial, such as that which took place in the first instance of the trial held in Albania.

It is obvious that the amendment now indicated is applicable only as of December 30, 2022, as established by Article 6 of Decree-Law No. 162 of October 31, 2022 converted into law the conversion law December 30, 2022, no. 199, where at the time of submission of the extradition request (July 2022), a time limit to which any changes that may have occurred in the national legal framework must be related (for the principle that in extradition matters, the conditions in the presence of which to proceed to surrender must be assessed at the time of submission of the request see Sec. 6, No. 5497 of 02/02/2021, Q., Rv. 280630) it was the national and conventional jurisprudential evolution that served as an interpretive benchmark; but likewise, there is no doubt that the aforementioned amendment constitutes the normative translation of a previously established hermeneutic orientation.

Equally unfounded is the defense's deduction that the holding of the trial at first instance under an abbreviated procedure did not in any case exempt the appellate court from renewing the declarative evidence, since it was only required to do so if the testimony taken at first instance was not decisive for the decision on liability.

Aside from the vagueness of the deduction, indeed, the recalled EDU Court ruling of March 25, 2021, Di Martino and Molinari v. Italy poses as a further condition for the legitimacy of a pejorative pronouncement of the judgment of acquittal the obligation to renew the investigative evidence when the testimony taken at first instance was decisive for the purposes of the ruling. The obligation, however, applies only when the witness or witnesses not reheard on appeal were examined at first instance by the judge of the preliminary hearing by virtue of his investigative powers and thus only in the case of an abbreviated trial with officio evidentiary integration, while in the case under consideration it does not appear, nor does the appellant allege it, that this was the mode of celebration of the trial at first instance, as aforementioned carried out exclusively on the basis of the investigative elements collected by the prosecution.

Lastly, the profile regarding the manner in which the appellant's technical assistance was carried out in the second instance of the Albanian proceedings appears irrelevant, absorbed by the question of the correct application of a procedural rule reflecting on the usability of the evidence used and evaluated for the purposes of the decision.

3. The dismissal of the appeal is followed by an order that the appellant pay the costs of the proceedings.

P. Q. M.

Dismisses the appeal and orders the appellant to pay the court costs. Sends to the Clerk's Office for compliance with Article 203 disp. att. cod. proc. pen. So decided, January 27, 2023, filing March 17, 2023