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Firm profile


Double criminality check at the time of issuing EAW (Cass., 40110/12)

11 October 2012, Cassazione penale

In order to meet double criminality principle in an European Arrest Warrrant, it is sufficient that Italian law provides as a criminal offence the fact for which surrender is requested at the time when the request is made by the issuing State, while it is not necessary that the same be of criminal relevance at the date of its commission. 

Corte di Cassazione - Italian Supreme Court 

sec. VI criminal

Sent., (date of hearing 10/10/2012) 11/10/2012, no. 40110

Composed of Messrs:

Dott. GARRIBBA Tito - President - - Dott.

Dr. GRAMENDOLA Francesco - Adviser -

Dott. IPPOLITO Francesc - rel. Councillor -

Dott. DI STEFANO Pierluigi - Consigliere -

Dott. CAPOZZI Raffaele - Consigliere -

has pronounced the following:


on the appeal brought by:

N.D.C., born in (OMISSIS);

against the judgment of the Court of Appeal of Catania, delivered on 26.5.2010;

- having regard to the documents, the judgment under appeal and the appeal

- Having heard the report of Cons. F. Ippolito;

- Having heard the indictment of the Public Prosecutor, in the person of the Deputy Public Prosecutor General Dr. Giuseppe VOLPE, who concluded that the appeal is inadmissible.

1. The Court of Appeal of Catania, by the aforementioned judgment, considering that the conditions provided for by Law No 69 of 22 April 2005 were met, ordered the surrender to the judicial authorities of the Republic of Romania of the Romanian citizen N.D.C., against whom, on 16.7.2009, a European arrest warrant had been issued by the Court of Slobozia (Romania), following an order of imprisonment for the serving of a two-year sentence, in execution of conviction No. 2675 of 14.12.2007 (final) for the offences of outrage, driving a motor vehicle in a state of alcoholic drunkenness and without a driving licence, committed in (OMISSIS).

2. N., through his defence counsel, appeals for cassation and requests, pursuant to Article 606, paragraph 1, letter b) of the Code of Criminal Procedure, the annulment of the judgment for failure to comply with Article 7 of Law No. 69 of 22 April 2005 and infringement of double criminality with reference to the three offences for which he was convicted in Romania, which would not be reflected in the national system.
Pleas in law

1. The grounds of appeal are unfounded, the Court of Appeal having correctly applied Law no. 69 of 2005 and, in particular, Law no. 69 of 22 April 2005, art. 7, paragraph 1 of Law no. 69 of 22 April 2005, according to which it is not necessary for the abstract scheme of the incriminating provision of the foreign legal system to find its exact correspondence in a provision of the Italian legal system; it is sufficient that the concrete case is punishable as a crime in both legal systems, regardless of any differences not only in the penalty treatment but also in the title and all the elements required for the crime to be established.

2. All the offences for which N. was convicted under Romanian criminal law constitute an offence also under Italian law; nor is it relevant that the offence is punishable under Italian law with a fine or prison sentence (of L. no. 69 of 2005, art. 7, paragraph 1), whereas it is necessary - as in the present case - that, for the State issuing the arrest warrant, the sentence or security measure to be executed must have a duration of not less than four months (art. 7, paragraph 4, L. cit.).

3. In particular, it appears from the judgment of the Court of Slobozia that N. was convicted of having threatened and pushed two police officers because of and in the exercise of their duties (they had intervened to prevent harassment and threats to third parties by N. in a state of drunkenness), so that the alleged offence falls within the scope of Articles 336 and 337 of the Italian Criminal Code.

4. Driving a motor vehicle without holding a driving licence constitutes an offence under Article 116, section 13, of the Highway Code, as amended by Decree-Law no. 117, section 1, paragraph 1, of 3 August 2007, converted into Law no. 160 of 2 October 2007.

5. Driving in a state of drunkenness is punished by Article 186 C.d.S., paragraph 2, with a fine from 800 to 3,200 euros and imprisonment up to six months, if (as in this case) a value corresponding to a blood alcohol level higher than 0.8 and not exceeding 1.5 grams per litre has been ascertained.

6. In this regard, this Court has already affirmed, with a decision shared by the College, that for the existence of the requirement of dual criminality, under Article 7 of Law no. 69 of 2005, it is sufficient that Italian law provides as a criminal offence the fact for which surrender is requested at the time when the request is made by the issuing State, while it is not necessary that the same be of criminal relevance at the date of its commission (Cass. no. 16289/2011, Rv. 250043, Kanchev).

The alternating and previous events (between administrative sanctions and criminal sanctions) that have characterised the cases provided for by the Italian Highway Code are therefore irrelevant, given the criminal nature of the sanction at the time of the decision.

7. Although the grounds put forward by the appellant are unfounded, the judgment under appeal must be set aside without referral.

It emerges, in fact, from the order issued by the Court of Appeal of Catania on 2 May 2012, acquired at the request of this Court, that N. (arrested on 29 April 2010 and subject to a coercive measure pursuant to Article 9, paragraph 4 of law no. 69 of 2005, effective from 30 April 2010), remained under house arrest for two years, i.e. exactly the period of imprisonment to which he had been sentenced by the irrevocable sentence of the Romanian court.

As there is no sentence remaining to be served in Romania, the conditions for surrendering N. are no longer met.

8. By a separate order, it was ordered that a copy of the documents be forwarded to the holders of the disciplinary action within their jurisdiction, since the appeal for cassation and the documents of the proceedings were received by this Court on 25 September 2012, while the contested judgment was lodged on 26 May 2010 and the appeal for cassation was lodged on the following 5 June.

The Court annuls the contested judgment without referral because the conditions for the surrender of N.D. C. are not met. It orders the Court of Chancery to carry out the formalities pursuant to Article 22(5) of Law No 69 of 2005.

Thus decided in Rome, on 10 October 2012.

Filed at the Court Registry on 11 October 2012