German dismissal of the case by the Prosecution grants an EU ne bis in idem effect in Italian extradition proceedings: in the matter of passive extradition, the dismissal, ordered in a third State, of criminal proceedings having as their object the same facts for which the extradition request has been made, is an obstacle to surrender, when such a measure has been adopted by a body that participates in the administration of justice in the national system of reference, is competent to ascertain, and possibly to punish, the illegal conduct on the basis of the evidence gathered, taking into account all the circumstances of the concrete case and the criminal prosecution has been definitively extinguished.
In the matter of extradition requested by the United States of America, according to the regime governed by the 1983 Bilateral Extradition Treaty, only the possibility that a life sentence of imprisonment involving a real risk of being subjected to inhuman or degrading treatment, contrary to Art. 3 ECHR, constitutes an impeding circumstance to the issuance of a favorable sentence.
(automatic unofficial machine translation)
SUPREME COURT OF CASSATION
SIXTH CRIMINAL SECTION
(date of hearing 06/06/2022) 14/07/2022, no. 27384
Composed of the Honorable Messrs:
Dr. RICCIARELLI Massimo - President -
Dr. GIORDANO Emilia A. - rel. Councilor -
Dott. APRILE Ercole - Councilor -
Dott. COSTANTINI Antonio - Councilor -
Dr. DI NICOLA T. Paola - Councilor -
pronounced the following:
On the appeal brought by:
M.S., born in (OMISSIS);
against the judgment of 3/21/2022 of the Court of Appeal of Brescia;
Having regard to the acts, the contested order and the appeal;
Hearing the report delivered by Councilor GIORDANO Emilia Anna;
heard the indictment of the Public Prosecutor, in the person of Deputy Attorney General Gargiulo Raffaele, who concluded by requesting the dismissal of the appeal;
Hearing for the appellant, defense counsel Lorenzo Valtorta, who insisted that the appeal be granted.
Course of the trial.
1. The Court of Appeals of Brescia held that the conditions for the extradition to the United States of America of German citizen M.S., who was arrested, while on vacation in Italy, on September 2, 2021 in connection with the arrest warrant issued on November 4, 2015 by the District Court of Missouri (USA) for possession and dissemination of child pornography, downloaded between (OMISSIS) on the personal computer in use by the extradite and in his possession at the college where he worked as a lecturer, were met.
2. With the grounds of appeal summarized below in accordance with Article 173 disp. att. c.p.p., to the extent strictly necessary for the purposes of motivation, the appellant's counsel seeks the annulment of the Contested Judgment on the grounds of violation of the law and flaws in the motivation, also related to the lack of preliminary investigation solicited from the Court of Merits in pleadings filed on November 19, 2021 and January 5, 2022. In particular, he denounces:
2.1. violation of the prohibition of bis in idem, in relation to Article 6 of the Treaty on Extradition between Italy and the United States of America, Article 54 of the Schengen Agreement and Article 50 of the Charter of Fundamental Rights of the European Union, since the facts for which extradition is requested by the United States of America are the same as those referred to in the March 5, 2019 order of dismissal of the Cottbus Prosecutor's Office. The defense, through documentary production, had attached that M.S. in the early months of 2015 had "self-reported" to the competent prosecutor's office in Germany the possession of the material, handing over his electronic devices (a lap top and two hard drives) and alleging that although he was working in America, during his stays in his home country he had downloaded photos and videos for his personal collection, operations carried out by sites that, in their disclairners, reassured users that the actresses depicted were of age, including for the content of the sections classified as "teens." Investigations by the German prosecutor's office had revealed that 64 images of child pornography content had been received on the devices and 90 files deleted. The competent public prosecutor's office, finding that there was no evidence that the images were recognizable as child pornography and that, in any case, his conduct should not be deemed likely to arouse public interest in criminal prosecution, had ordered the case against M. to be dismissed. The trial court did not rule out the applicability of the bis in idem prohibition but, erroneously, it did not consider the factual prerequisites to be met, ruling out that there was identity of the facts at issue in the German and American proceedings. Erroneously because it focused its attention on the diversity of the devices (the American ones, subject to seizure in the proceedings there) and the German ones, handed over to the investigators by M., a diversity that is not sufficient to exclude the identity of the contents, resulting from the download operations in Germany and the "duplication" of the images for preservation purposes, on different devices. Nor is the identity of the images ruled out by the fact that those found in the media handed over to the German investigators were greater in number, being able, if anything, to oppose the opposite if these images had been fewer in number. He then recalled the case law of the Court of Justice of the European Union on the notion of international bis in idem and the configurability, in the case of an order of dismissal on substantive (and not merely procedural) grounds, of a measure capable of incorporating a final ruling for the purposes of the bis in idem prohibition;
2.2. Unlawfulness of extradition in the presence of an order denying extradition advanced by the United States of America by the competent authority of the Republic of Germany; the documentation produced by the defense, susceptible to supplementation by the Italian judicial authority, so solicited, proves the existence of extradition proceedings advanced by the United States of America to Germany and it would have been the burden of the Court of Appeals to acquire the relevant documentation, in the presence of acts that unequivocally attest to the initiation of extradition proceedings (the arrest report and the request for information by M.'s defense counsel. ). Erroneous are the observations of the territorial court that superimpose on the defense request the negative outcome of the formal invitation to the competent German authority to activate in favor of the extradite the procedure provided for in the Perxuhhin judgment;
2.3. violation of Article 10 of the Extradition Treaty, which requires the complete allegation of the statement of facts with an indication of the time and place of the crime committed, central aspects in the case under consideration in which it is relevant not the mere possession of child pornography but the receipt and eventual distribution. It acquires, therefore, absolute importance the identification of the time of commission of the crime and its place, which the extradite places in Germany, and the correct identification of the penalty since in the documents transmitted with the request there is no indication of the applicable fine and presumptively reconstructed by the Court of Appeal;
2.4. violation of the law, in relation to Article 3 of the Extradition Treaty between Italy and the U.S., in the absence of elements allowing to ascertain the place where the crime was committed since, according to the appellant, the downloading operation took place in Germany, therefore outside the U.S. territory. The conclusion that the question of jurisdiction will have to be ascertained in the trial in the United States of America is erroneous, both because the "origin" of the files is not relevant (only the place where they were downloaded being relevant and not the place of production, which remains uncertain), and because Article 3 makes extradition, with respect to an offense committed outside the territory of the United States of America, subject to the condition that the offense is punishable, according to the laws of the requested Party or if the requested person is a national of the Requesting Party. In the Applicant's view, the provision should be interpreted not to mean that the act is provided for as a crime under Italian laws but that the act should be punishable even if committed abroad by a foreign national, pursuant to Article 10 of the Criminal Code: in the case the crime, punishable under Article 600-quater of the Criminal Code, is not among the common offenses committed by the foreigner abroad subject to Italian jurisdiction under Art. 10 and it is undisputed that the extraditee is neither an Italian nor a U.S. citizen; and, if committed in Germany, M. is not extraditable because the conditions legitimizing U.S. jurisdiction do not exist;
2.5. violation of the law, in relation to art. 705 c.p.p., paragraph 2, lett. a), since, in the light of the documents transmitted" there is reason to assume that the criminal proceedings instituted against the extradite does not ensure respect for fundamental rights, in the light of the generality of the charge formulated - the number of images found and their content are not indicated as there is no summary description of them nor are the methods of downloading specified. Nor does the charge receive greater clarity from the content of the extradition request in which the presence of a video is added, in addition to the child pornographic images. The described generality is welded to that relating to the indication of time and place of the commission of the crime and results in the formulation of a charge that contravenes the principles of Article 6 ECHR, a norm that lists the fundamental rights of the suspect and, among them, the information in a clear and precise manner about the grounds for accusation;
2.6. violation of Article 10(3)(B) of the Extradition Treaty for lack of elements providing a reasonable basis for believing that the requested person has committed the crime for which extradition is requested. The appellant notes that, from the contents of the summary report of facts and evidence, forwarded in support of the extradition, there is no evidence to consider it established that the downloading of the images was voluntarily carried out or that the extradite was aware of the minor age of the persons portrayed in the downloaded images, which are stored among thousands of erotic images also contained in the folder entitled "teens." It is more than reasonable, in the presence of such a large number of images, that we are in the presence of an automatic downloading operation that accidentally and unintentionally included images of minors. The encryption was instrumental in ensuring the confidentiality of all the material (and not just the images involving minors) and is, therefore, not significant in the sense held by the Court of Appeals. The disclaimers of the site used (Xhannster.com; Youporn) reassure users about the age of the persons reproduced in the sense that, even when they are indicated as teenagers they are, in fact, women of age.
Reasons for the decision
1. The appeal must be dismissed because it is brought on unfounded grounds.
2. The judgment appealed identified the circumstantial elements placed against the appellant for the purposes of the checks of completeness and correspondence to the coordinates of the extradition rules.
2.1. It pointed out, in particular, that the statement made by FBI personnel shows that the investigation against the appellant had arisen as a result of a report made on November 17, 2014, by the Director of Information Technology and Administrative Services of the College at which M. worked who, during a system check operation, had found child pornography material in a drive connected to the Dell brand laptop in use by M. and connected to the College's network. The incriminated material was found in a subdirectory (entitled teens, adolescents, located within two encrypted folders) and in which were contained thousands of pornographic images, some of them depicting minors between the ages of twelve and fourteen, engaged in sexually explicit behavior. The checks carried out on two drives (one, branded Western Digital and the other Fantom Drive) seized from M., allowed the discovery of 33 images and one video with child pornography content; 34 erotic images representing children and four images of cartoons, with similar content. M., who was charged with the facts, refused to submit to interrogation.
2.2. The Court of Appeals, premised on the fact that the crime being prosecuted in the United States of America falls under Article 600-quater of the Criminal Code, ruled out the possibility of bis in idem between the facts being prosecuted in the United States and the facts that were the subject of the investigation that was later dismissed by order of March 5, 2019, of the Cottbus Prosecutor's Office, a dismissal ordered due to minor culpability in relation to which there is no interest in public prosecution. He, therefore, held that the examination of the productions makes it clear that the facts that are the subject of the two proceedings do not overlap, observing that the German proceedings had arisen as a result of M.'s self-report, subsequent to the initiation of the proceedings in the United States, determined by the seizure, in November 2014, of the computer devices containing the images, which excludes that they could be the same devices handed over to the German judicial authority. Even the most focused examination of the documentation confirms this assumption not only because of the diversity of the devices but also because the number of images incriminated in the proceedings before the German judicial authority is greater than those indicated in the U.S. documents and, in any case, in relation to said material, it is not made explicit that they are images strictly pertaining to "child and youth pornography."
2.4. Nor does it preclude the granting of the extradition request that an extradition procedure would have taken place at the German Federal Authority, the outcome of which is unknown. In any case, a new autonomous assessment by the Italian authorities conducted on the basis of the relevant domestic legislation and covenant regulations is not prevented. The provision of Article 707 of the Code of Criminal Procedure, which refers to the adoption of a favorable extradition judgment after the issuance of an unfavorable judgment by the Italian authority and, therefore, legitimizes extradition proceedings on the basis of a request that offers new elements of evaluation, is not relevant. Nor is the bis in idem prohibition applicable in extradition matters in relation to Article 54 of the Schengen Convention, which operates in the presence of overlapping or otherwise inseparably connected facts that have given rise to criminal proceedings in two contracting states, a case for this reason extraneous to the determinations made by either state in extradition matters. Similarly, it must be ruled out according to the discipline of the Charter of Fundamental Rights of the European Union that in the international sphere there is any possibility of invoking the principle of ne bis in idem in relation to extradition. Finally, in application of the Petruhhin criteria, the German judicial authority had indicated that there is no interest in the submission of a request for M.'s extradition from Italy to the Federal Republic of Germany.
3. The conclusions reached by the Court cli appeal, although susceptible to some clarifications, cannot be revised.
The disputed point in the case under consideration is the existence of bis in idem, which the defense proposes in two respects, one - so to speak - substantive and the other arising from a previous denial of extradition of the appellant by the German judicial authority (ground sub 2.2). The circumstances attached as the basis and factual prerequisite of bis in idem, form the basis of the further defense remarks concerning the existence of the jurisdiction of the United States of America (ground sub 2. 4) and the legitimacy of the rather generic and uncertain formal charge, it is argued - both with regard to the constituent elements of the conduct and to the time and place of the crime committed (grounds sub 2.3., 2.3. and 2.5.) underlying the extradition request and the proceedings under way in the United States of America, uncertainties, these affecting the right of defense under Article 3 ECHR. Indeed, the core of the defense reconstruction is grafted on the assumption that the material found in the drives seized by the U.S. judicial authority originated from the downloading operations by which the plaintiff had procured the files, operations carried out in Germany while he was on vacation in his home country. The material seized by the U.S. judicial authority, according to this reconstruction, constitutes a mere duplicate, made for preservation purposes, of that downloaded in Germany, which constituted the subject of the March 5, 2019, decree of dismissal by the Cottbus Public Prosecutor's Office. According to the defense reconstruction, the incriminating cases (Italian and U.S.) penalize the conduct of "receiving" child pornography files (conduct that is precisely carried out with the downloading operations) and not the mere possession of such files which, with respect to the first conduct, constitutes its mere criminal progression, criminally irrelevant.
4. With regard to the first aspect of the question, a premise is well worthwhile.
It has been very controversial in doctrine and jurisprudence whether the bis in idem prohibition can be configured as a general principle of law, identifying its source in the principles common to domestic systems.
A different reconstructive approach, configuring the prohibition as a general principle of conventional and Euro-Unitarian criminal law, has, on the other hand, valorized its source constituted by the conventions and treaties that have provided for its introduction in the regulation of relations between states, sanctioning its operativeness also in relations between decisions in criminal matters adopted by judicial bodies belonging to different legal systems. A trend line - it has also been said in the jurisprudence of legitimacy - of an increasingly widespread legislative development in international law, which had found expression in Article 50 of the Charter of Fundamental Rights of the European Union and Article 54 of the Convention implementing the Schengen Agreement. And, precisely on the basis of the interpretation of Article 50 of the Charter of Nice, this Court has affirmed that, in the context of the fundamental rights of the European Union, the principle of "ne bis in idem" is configured as a general guarantee to be invoked in the European legal space, even against a non-EU state, whenever a criminal judgment on the same fact has been formed against the same person and regardless of his or her European citizenship (Sec. 6, no. 54467 of 15/11/2016, Resneli, Rv. 268931). The judgment now recalled denied the extradition to Turkey of a person who was already definitively convicted in Germany, albeit a third state with respect to the proceedings, and in a matter that had a connection with those within the competence of EU law.
Above all, the Resneli judgment, held to be established not only the direct applicability, with precedence over national legislation, of the rules of the Treaties, but also of the very general and principled rules of the Charter of Fundamental Rights by virtue of Article 52(3) of the Charter, which provides that the level of protection established by the ECHR and its protocols, according to the appreciation of the Strasbourg Court, constitutes the minimum standard of protection of the corresponding rights of the Charter. Through the reference to arr:. 50 of the Nice Charter, indeed, giving direct effect to the jurisprudential acquis in the matter of Art. 4 prot. 7 ECHR, the jurisprudence of the Strasbourg Court in relation to the prohibition of double jeopardy is considered applicable by the Italian court, provided, of course - one is within the scope of application of EU law, pursuant to Art. 51 of the Charter.
The accuracy of the Resneli judgment's conclusions has been confirmed by the case law of the Court of Justice, which has identified the matter of extradition of a European citizen as a matter of Treaty interest. "The objective pursued by Article 54 of the Charter, as enucleated from the case law, through the prohibition of bis in idem aims to prevent, in the area of freedom, security and justice, that a person judged by a final judgment be prosecuted, by reason of exercising freedom of movement, for the same facts in the territory of different Contracting States in order to ensure legal certainty through respect for the decisions of public bodies which have become enforceable, in the absence of harmonization or approximation of the criminal laws of the Member States. It is necessary, in this regard, to interpret Article 54 of the Charter in the light of Article 3, pgf. 2 of the Treaty according to which the Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to, inter alia, the prevention and combating of crime" (Court of Justice, WS v. Bundesrepublik Deutschland, C-505/19).
The Court of Appeals found the application of the bis in idem prohibition with respect to the extradition request made by the United States of America to try the appellant to be peaceful, in the context of interpreting Article VI of the Italo-US Treaty, which, in light of L. March 16, 2009, no. 25, constitutes, today, a complex act, in which both the Extradition Treaty between the Government of the United States of America and the Government of the Italian Republic signed on October 13, 1983, and the Extradition Agreement between the United States of America and the European Union signed on June 25, 2003, have converged. And it took for granted the nature of a final decision of the order of dismissal issued on March 5, 2019 by the Cottbus Public Prosecutor's Office.
4.1. This conclusion is far from unequivocal in the jurisprudence of this Court precisely with reference to measures of dismissal when the nature and effects of the measure on which to group the notion of duplicative obstructive to the new decision (bis) come into play.
In this regard, it is recurrent in the judgments of this Court, in the interpretation of the notion of ne bis in idem, with reference to Article 54 of the Convention of June 19, 1990 implementing the Schengen Agreement, the affirmation that the prohibition of bis in idem operates in domestic law only in the presence of a defining measure of the judgment with the effect of res judicata, which is not the decree of archiving issued by the foreign judicial authority (Sez. 2, No. 51221 of 15/06/2018, Feil Bernd, Rv. 275064; Sect. 2, No. 22566 of 08/05/2014, Varano, Rv. 259584; Sect. 1, No. 10426 of 02/02/2005, Boheim, Rv. 231602).
The cited rulings, in particular Feil Bernd and Boheim, referred to dismissal orders issued by the German judicial authority, which were deemed irrelevant, for the purposes of applying the prohibition, in liability proceedings issued by the Italian judicial authority.
But the rulings on the application of Article 9 of the 1957 European Convention on Extradition, thus directly relevant to the extradition matter of interest here, did not reach a different conclusion. It was affirmed, in fact, that in the matter of extradition for foreign countries, the fact that criminal proceedings have been dismissed in Italy, concerning the same facts on which the request of the requesting state is based, does not constitute a cause of impediment to the granting of extradition since the order of dismissal does not constitute "grounds" for rooting out an impermissible duplicity of "judgment" on the same facts of crime, since for this purpose the contractual provision presupposes a decision taken "in a definitive manner," that is, a final judgment on the merits of the case. Which certainly cannot be said for a decree of dismissal in a context in which no prosecution has ever been exercised in the state of surrender (Italy) for the crimes that are the subject of the charge against the surrendering person in the requesting state (Sez. 6, no. 41316 of 14/05/2010, Vigani, Rv. 248785; Sez. 6, no. 3923 of 24/11/2015, dep. 29/01/2016, D'Ambrosio, Rv. 265911).
Along the same line, albeit with more open statements, if the extradition treaty expressly provides for the bis in idem prohibition clause, a more recent decision of this Court appears to be oriented, according to which, on the subject of passive extradition, the filing, ordered in a third state, is not an obstacle to surrender, of a criminal proceeding having as its object the same facts for which the extradition request has been made, both because it is a measure insusceptible of giving rise to res judicata, and, therefore, to the violation of "ne bis in idem", and because compliance with tane principle assumes obstructive value only if expressly provided for in the extradition treaty applicable to the concrete case (Sez. 6, No. 6241 of 29/01/2020, 5, Rv. 278709).
Differently, it appeared to be centered on a judgment of preclusion to the relief of bis in idem a recent judgment, in the field of extradition that examined, considering it irrelevant for the purposes of the prohibition of bis in idem, precisely a decree of archiving issued in Italy (Sez. 6, no. 41316 of 14/05/2010, Vigani, Rv. 248785) identifying the notion of a "final decision" in a judgment on the merits on the regiudicanda that has become final, a ruling that cannot correlate with a decree of dismissal in a context in which no prosecution has ever been exercised in the state of delivery.
It is clear that weighing in the decisions referred to so far are the specific characteristics of the jurisdictional measures of reference too often parameterized, in order to verify their suitability to constitute the res iudicata - from whose respect the principle of ne bis idem originates - to the characteristics of the national legislation and reconstructed on the model of the res judicata judgment on the merits.
4.2. With regard to the notion of a final decision, the conclusions of the jurisprudence of legitimacy no longer appear to be supportable because, instead, precisely through the described system of integration (point 4 of the Consideration in Law), the corresponding notion elaborated by the Court of Justice and the jurisprudence of the Strasbourg Court must be applied in the matter of extradition.
Even in the jurisprudence of the Court of Justice there has been a long path leading to the definition of "final decision," the legal meaning of each of the syntagmas that make up the notion being highly controversial.
The earliest decisions of the Court of Justice concerned the operation of the principle in the presence of decisions declaring the extinction of criminal proceedings (Court of Justice, February 11, 2003 C-187/01 and C-385/01, Gozutok and Brugge) and the statute of limitations of the crime (Court of Justice, September 28, 2006, C - 467/05, Gasparini): in the first case the Court stated that a person can enjoy the application of the principle even when a ruling is not formally final.
On the notion of finality, the pronouncement of the European Court of Justice (June 29, 2016, Kossowski, C 486/14) appears particularly explanatory, according to which a wanted person is considered to have been the subject of a final judgment for the same facts in the event that, as a result of criminal proceedings, the criminal prosecution has been definitively extinguished or, again, cualora the judicial authorities of a member state have issued a decision definitively acquitting the defendant for the facts previously charged against him (November 16, 2010, Mantello, C 261/09). With reference to the term "judgment" (actually mentioned in Article 3(2) of Framework Decision 2002/584 on the European Arrest Warrant and surrender procedures between member states), the Court of Justice has stated that the term must be understood in a broad sense with regard to any decision that definitively closes criminal proceedings in a member state, even if not adopted by a court in the form of a judgment (hpanijski Sudu Zagrebu, C-268/17).
Particularly significant is the reconstructive passage of the Kossowski judgment (regardless of the specific problem posed by the execution clause) in which the Court specifies that Article 54 of the Schengen Agreement must be interpreted in light of Article 50 of the Nice Charter, inferring the unconditional operability of the principle in cases where the previous proceedings ended with a decision definitively terminating the criminal prosecution without the imposition of sanctions. It is the letter of Article 54 that provides for the application of the principle with respect to one who has been "adjudicated (not convicted) by a final judgment," a provision that must be interpreted to mean that the bis in idem prohibition operates when the criminal prosecution is definitively extinguished, following examination on the merits, according to the law of the state that rendered the first decision (see also Court of Justice, June 5, 2014, M, C-398/12).
The principle operates, therefore, regardless of whether such a decision comes from a court or takes the form of a judgment or whether a penalty has been imposed (as already stated in the cited Gozutok and Briligge decision).
It is relevant, in conclusion, for the operation of the principle that a wanted person has been the subject of a final judgment for the same facts in the event that, as a result of criminal proceedings, the criminal prosecution has been definitively discontinued or, again, if the judicial authorities of a member state have issued a decision definitively acquitting the defendant of the facts alleged against him (Court of Justice, November 16, 2010, Mantello, C 261/09).
The notion of bis in idem is also the subject of long-standing interpretation by the Strasbourg Court.
The most recent judgment of the Edu Court (Judgment of July 8, 2019, Mihalache v. Romania, Application No. 54012/10) appears, in this matter, to be of particular interest because, by applying international coordinates (including Article 14(7) of the International Covenant on Civil and Political Rights, the general rules of interpretation of the Vienna Convention, Art. 50 of the Charter of Fundamental Rights of the European Union, and Article 54 of the Convention implementing the Schengen Agreement), and the decisions of the Court of Justice that had already ruled on the issue, it examined precisely the aspect of the finality of the decision.
While starting from the assertion that only a decision that has acquired the force of ree iudicata can be considered final, the Court clarified that this is the case, in particular, when a ruling takes on the character of irrevocability, i.e., when "no further ordinary remedies of appeal are available, or when the parties have exhausted those remedies, or have allowed the relevant time limits to expire without availing themselves of them" (see para. 37).
According to that decision, premised on the fact that a duplication of proceedings (bis), materializes only where a second proceeding is initiated against persons who for the same facts have already been the recipients of final measures, the Court ruled out, on the one hand, the need for the intervention of a judicial body (understood as a third and impartial judge) in order for a measure to rise to the status of a "decision" and, on the other hand, re-examined the meaning of the notions of "acquittal" and "conviction. As for the need for an acquittal or conviction to be the outcome of the conduct of genuine criminal proceedings of a jurisdictional character (before a third and impartial judge), in the view of the Edu Court, what really matters is that the concluding decision is taken by a body participating in the administration of justice in the relevant national system and that the latter is competent under domestic law to ascertain and possibly punish the unlawful conduct alleged against a particular person. In support of this interpretation, reference is made to the approach adopted by the Court itself in assessing whether measures issued at the outcome of proceedings characterized as "administrative" under domestic law can be deemed capable of producing substantially "criminal" effects, in the "autonomous" meaning that term takes on in the conventional context. On the basis of these arguments, the Grand Chamber excludes the need for the intervention of the judicial body for a measure to rise to the status of a genuine "decision." As to the further question concerning the meaning of the terms "acquitted" and "convicted," the Edu Court clarified that these expressions imply a determination of the criminal responsibility of the accused on the basis of evidence that is capable of motivating on the "merits" the decision adopted and the merits or otherwise of the charge made.
Such a situation arises, for example, when the authority has imposed a (substantially) criminal sanction against the offender, as this normally presupposes a determination of the lawfulness of the conduct complained of in light of all the circumstances of the concrete case.
In the light of the completed review, the following principle of law may be affirmed: "in the matter of passive extradition, the dismissal, ordered in a third State, of criminal proceedings having as their object the same facts for which the extradition request has been made, is an obstacle to surrender, when such a measure has been adopted by a body that participates in the administration of justice in the national system of reference, is competent to ascertain, and possibly to punish, the illegal conduct on the basis of the evidence gathered, taking into account all the circumstances of the concrete case and the criminal prosecution has been definitively extinguished."
4.3. On the basis of these coordinates and turning to the examination of the case at hand, the College considers that the order of the Cottbus Public Prosecutor's Office issued at the outcome of the proceedings held before the German judicial authority, initiated by M.'s self-report, cannot be considered a mere procedural order to dismiss the proceedings, but rather a genuine decision of final acquittal, given that, under domestic law, the German Public Prosecutor's Office, participates in general in the administration of criminal justice in the German legal system; in the case at hand, it was certainly competent to investigate the lawfulness of the conduct complained of, and the decision applied the relevant substantive law rules of the domestic legal system by making its own assessments on the basis of the evidence gathered, taking into account all the circumstances of the concrete case. While it is true that the decision to dismiss did not impose a sanction of a punitive nature, which is provided for in the legal system, it is also true that such a decision intervened on the merits of the finding and is based on the substantive appreciation of lack of punitive interest. And that decision is final because no further ordinary remedies of appeal are available, and only as a result of a change in circumstances could the prosecution reopen the case again.
5. Nevertheless, the College believes that in the case, under consideration, the same fact is not present.
It is established that M.S. is being prosecuted in the United States of America for the crime of "possession and dissemination of child pornography from at least (OMISSIS) and until approximately (OMISSIS) in Jasper County and other locations in (OMISSIS)." The child pornographic material, according to the aforementioned report attached to the indictment and extradition request, was contained in a drive connected to the PC, which in turn was connected to the college's network, in two encrypted folders one of which contained a subfolder entitled "Teens" in which there were thousands of pornographic images and among them were 33 child pornographic images, 1 video with child pornographic content, 34 erotic images depicting children, 4 cartoon images with child pornographic content. The date of the objection refers, on comparison with the investigative evidence, to the date of the report against M. left on (OMISSIS) following the discovery of the material, during verification operations of the College's system, November 2014 is indicated as the date of receipt of the files. The final findings of the examination of the files are contained in the August 12, 2015 briefing.
According to the charge underlying the extradition request, the appellant is being prosecuted for the crime of possession (the appealed judgment points out the tralatized nature of the charge of dissemination) of pornographic material relating to minors, a conduct that, as they well pointed out in the appealed judgment, is punished, with the penalty of imprisonment for up to three years, by Article 600-quater of the Italian Criminal Code, which incriminates both the conduct of "procuring" and the conduct of possession of said material.
As anticipated, the defense argues that these files constitute the result (the criminally irrelevant progression) of mere duplication operations of those that the plaintiff had procured through downloading operations carried out in Germany, operations, these, at the basis of the decree of dismissal issued on March 5, 2019 by the Cottbus Prosecutor's Office and in which it is acknowledged that the incriminated files are found in the browser cache and correspond to two operations carried out on September 4, 2013 and August 28, 2013, in this case the result of an automatic download.
In the meaning ascribed to it by the Court of Merit, the diversity of the drives (those handed over to the German investigator and those seized in the United States of America) and the number of files, which, in the extradition request, are fewer in number, are not exhaustive in order to exclude the validity of the defense allegation, although they are not precisely identified with reference to their name nor to their origin (or date of download) or content compared to those covered by the March 5, 2019 filing order, moreover, the Court of Merit observed, not classifying them as strictly pertaining to "child or youth pornography."
But even irrespective of the number of images held (the documentation attached to the proceedings before the German judicial authority mentions 64 images and 90 files deleted, compared to the 33 child pornographic images, 34 erotic images depicting children, and 4 cartoon images with child pornography content indicated in the extradition request), what appears decisive to the College, in order to exclude that we are in the presence of the same material, is the presence, among those for which the extradition request has been made, of a video file that is not present in the archiving decree and in the German analysis report (moreover incomplete, because it lacks in the Italian translation the last page).
In relation to offenses in the field of trafficking in child pornography, it constitutes, in the opinion of the College, a structural element of preeminent importance for the purposes of the application of the bis in idem prohibition, that the conducts of the different proceedings have as their object the same material, a condition that does not exist when the images, although belonging to the same category, are different: the object of the crime are, in fact, the specific representations, the result of the use of minors, and not their support, physical or digital. The provision of art. 600-quater of the Criminal Code, punishes not only the conduct of "receiving" the material - according to the erroneous defense reconstruction referred to in point sub 2.3 of the grounds - but also the mere possession of the material, similarly to the legislation of the United States of America, which is the basis of the charge.
In the Italian system, the provision in Article 600-quater of the Criminal Code, constitutes a closing rule, subsidiary in character to the more serious criminal hypothesis of the production of such material for the purpose of exploitation, for the existence of which the mere awareness of the possession of the child pornographic material is required, without the need for the danger of its dissemination. The provision in Article 600-quater of the Criminal Code is the result of the need to bring domestic law into line with international provisions and, in particular, Council Framework Decision 2004/68/JHA of December 22, 2003 on combating the sexual exploitation of children and child pornography. With this normative act, the European Union considers the sexual exploitation of children and child pornography to be serious violations of human rights and the fundamental right of all children to harmonious growth, education and development (para. 4 of the "recitals"), child pornography being particularly dangerous due to its dissemination through the Internet. In this context, minimum rules were dictated to which the member states would have to adhere, and to which the Italian discipline conformed over time with Law No. 172 of January 10, 2012 (Ratification and Execution of the Council of Europe Convention for the Protection of Children against Sexual Exploitation and Abuse made in Lanzarote on October 25, 2007, as well as norms of adaptation of the internal system). The discipline emphasizes the punishment of upstream conduct, of production of the material, but, more generally, it is aimed at hitting the "market" of "child pornography," which is downstream of the production activity and represents its outlet, economically. Also in the case referred to in Article 600-quater of the Criminal Code, the object of the crime is "the use of a minor in the production of child pornography," a use that compromises his image, dignity and proper sexual development, qualifying the conduct in terms of offensiveness. It follows that, necessarily, the legal object of the offense under Article 600-quater of the Criminal Code must be identified in the specific image that is the subject of the depiction.
Even in the described context of the vagueness of the indications on the name or other technical characteristics of the files subject to seizure in the United States of America and on the mode of creation, whether through downloading operation or mere duplication of a file already held, the holding of the video file is nevertheless sufficient to exclude the merits of the bis in idem exception.
There is no merit to the evoked generality of that document, which not only bears a self-evident title about the age of the protagonist ("(OMISSIS)") but whose content is effectively indicated in the accompanying report describing sexually explicit behaviors of the representations, also analyzed through the CRIS system which ascertained that these are images taken from serials depicting underage victims involved in child pornography created outside the U.S. namely Germany, Italy and Brazil. The video was contained not already in a "service" folder but in a subfolder created by the user (protected by other cryptographic folders) and significantly titled "Teens."
Again. The certain presence of such a video file among the "images" that are the subject of the U.S. proceedings, undermines and disproves the validity of the defense reconstruction (on the sameness of the material) and corroborates, instead, the reconstruction underlying the charges raised in the proceedings for which extradition is requested on the provenance of the material as it was "downloaded" a few days before the inspection, elements that, as specified below, must be examined not from the perspective of proof of guilt but of a reasonable basis for the submission to trial.
There is no reason, therefore, for the purposes of verifying the prerequisites for extradition, to depart from the dispute placed as the basis of the extradition request and the factual data (on tempus and locus commissi delicti) set forth in the charge, firmly anchored in factual data (the possession of the files on personal drives), which are not seriously disputed and which are compendiously described, integrating the reasonable basis for the purposes of granting the extradition request.
6.It seems appropriate at this point to also examine grounds 2.5 and 2.6, which are without merit.
It constitutes ius receptum in the jurisprudence of legitimacy the principle according to which, in the matter of extradition for foreign countries, the Italian judicial authority, for the purpose of verifying the "reasonable basis" necessary to consider that the extradited person has committed the crime, provided for by Article 10, par. 3, lett. b), of the Extradition Treaty with the United States of America of 1983, is not required to independently assess the consistency of the serious indications of guilt, but must only verify that the summary report of the facts, attached to the request, allows for the probable belief, from the perspective of the requesting state's procedural system, that the extradite has committed the crime in question (thus, among others, Sez. 6, no. 11947 of 15/01/2019, Hernandez, Rv. 275293; Sect. 6, no. 5760 of 04/02/2011, Anokhin, Rv. 249455; Sect. 6, no. 1494:L of 26/02/2018, Yarrington, Rv. 272766; Sect. 6, no. 42777 of 24/09/2014, Francisci, Rv. 260431). In the case at hand, the Brescia Court of Appeals indicated, with congruous reasoning, which should be exempt from any censure of manifest illogicality, the elements that make it reasonably probable that the crimes could be committed. The Court of Appeals ruled out that in the documentation transmitted, investigative gaps were evident, having illustrated, on the basis of the documentation transmitted by the State requesting extradition, how the appellant held, on the devices in his use and in special encrypted folders, the child pornography material that had been identified, on an initial analysis carried out by the College's security service, on the drive connected to the institution's network. From this point of view, the censures formulated with the appeal should be disregarded, tending essentially to solicit from the Italian judge an inadmissible evaluation of the elements of knowledge available comparing them with those of contrary sign attached by the defense, according to a standard comparable to that required to ascertain the existence of serious indicia of guilt against the suspect.
As anticipated, the documentation produced, relating to the proceedings held in Germany, did not attest, in irrefutable terms, that the material found in the drives in America constituted mere duplication of that, a few months earlier, downloaded in Germany, indeed the presence of the video file (which does not appear in the files subject to the filing), undermines the logical hold of the defense line, nor are they present by reason of the concrete manner in which the material was stored, elements suitable for clearly and incontrovertibly demonstrating the innocence of the accused, which would make it possible to overcome the judgment made regarding the existence of the reasons for which, from the perspective of the requesting state, the commission of the crimes ascribed to the extradite was considered probable (in this view cf. Sec. 6, no. 40552 of 25/09/2019, Trintade, Rv. 277560; Sec. 6, no. 16287 of 19/04/2011, Xhatolli, Rv. 249648).
Do not possess diriment efficacy, in the view proposed by the defense, the additional circumstances inherent in the mode of storage (the defendant collected thousands of files of pornographic content among which the few dozen, with child pornography content); or the lack of awareness of the precise content of the files and, indeed, the assurances contained in the disclaimers of the porn sites from which the plaintiff downloaded the material of interest: it is sufficient here to note that the report accompanying the extradition request expressly emphasized that the material possessed an inherently child pornographic character.
7.Turning to the examination of the second ground of appeal, premised on the fact that the principle of ne bis in idem convention does not also concern trial evaluations, being expressly referred to evaluations of responsibility for criminal acts, the defense's deduction on the preclusion to activate the extradition procedure in Italy due to the (supposed) existence, in Germany, of a measure that had refused the extradition of M.S. appears generic. The Court of Appeal's request for a supplementary investigation appears to be functional for a merely exploratory verification. The defense allegations and the documentation produced are, in fact, completely unsuitable to prove the initiation of an extradition procedure since only the Interpol arrest notice was produced, which is not unequivocally significant of the existence of an extradition procedure, and a request for an examination of the documents, which is also characterized by intrinsic generality. In short, there is no trace in the documentation produced of the start of M.'s extradition proceedings to Germany, any reference to its outcome being vague in any case.
8. From the reconstruction made in point 5. of the Consideration in Law, it follows that the ground of appeal under point 2.4. concerning the objection of jurisdiction, the constitutive prerequisite of the defense allegation of which, that the crime was committed outside the territory of the United States of America, cannot be discerned, is manifestly unfounded. According to the appellant, in fact, the crime was committed in Germany, the place where the downloading of the images took place with the consequence that since the crime was committed outside the territory of the United States of America, the requested party has the power to grant extradition only if its laws provide for the punishability of such a crime, as committed abroad, or if the requested person is a citizen of the requesting state. The appellant argues that since M. is not a U.S. citizen, Italy could grant extradition under the conditions set forth in Article 10 of the Criminal Code that, that is, it is a crime punishable in Italy committed abroad by a foreign national.
Just for the sake of completeness, it should be added that the extradition rules do not provide that, in the case of a procedural passive extradition procedure, the Italian judicial authority may refuse the surrender on the basis of a renewed verification of the existence of the jurisdictional power vested in the foreign judicial authority that issued the measure put into execution (see, in the same terms (Sez. 6, no. 17835 of 21/05/2020, Korshunov, unimmed; no. 30642 of 22/10/2020, Bianchi, Rv. 2798489).
8. The ground of appeal, moreover formulated in general terms, on the illegality of the penalty applicable in the United States, is unfounded, as the decision adopted by the territorial judge is in accordance with the exegetical teaching contained in the arrests of the jurisprudence of this Court, on the basis of which it has been affirmed that, in the matter of extradition requested by the United States of America, according to the regime governed by the 1983 Bilateral Extradition Treaty, only the possibility that a life sentence of imprisonment involving a real risk of being subjected to inhuman or degrading treatment, contrary to Art. 3 ECHR, constitutes an impeding circumstance to the issuance of a favorable sentence (in this sense Sez. 6, no. 14941 of 26/02/2018, Yarrington, Rv. 272767; conf. Sez. 6, no. 11947 of 15/01/2019, Hernandez, cit.).
It is, therefore, irrelevant here that the punitive treatment provided, with reference to the maximum edictal limit, by the U.S. penal system for the crimes charged against the present appellant, without reaching connotations of absolute unreasonableness, is quite severe: as it is certain how this circumstance is relevant exclusively for the purposes of the discretionary evaluations pertaining to the ministerial authority (thus, among many, Sez. 6, No. 2037 of 05/12/2018, dep. 2019, Huang, Rv. 275424; Sect. 6, No. 5747 of 09/01/2014, Homm, Rv. 258802); nor, for the purposes of the judgment of unreasonableness, does the size of the pecuniary penalty matter.
9. The rejection of the appeal follows, pursuant to Article 616 of the Code of Criminal Procedure, the appellant is ordered to pay the costs of these proceedings to the Treasury.
The clerk's office should be entrusted with the formalities set forth in Article 203 of the Code of Criminal Procedure.
Dismisses the appeal and orders the appellant to pay the costs of the proceedings. Directs the clerk's office to carry out the duties set forth in Article 203 disp. att. c.p.p.
Thus decided in Rome, June 6, 2022.
Filed in the Registry on July 14, 2022.