For the purposes of the recognition of foreign criminal judgment required in the framework of judicial cooperation, for the fulfillment of the double incrimination requirement it is sufficient that the law of the requested state contemplates as a crime the fact for which there was a conviction abroad at the time of the decision, and not also at the time of its commission, as is required when criminal effects proper to the Italian legal system are derived from the foreign judgment.
(automatic unofficial translation)
Italian Supreme Court
Judgment Sec. 6 No. 23940 Year 2023
President: DI STEFANO PIERLUIGI Rapporteur: CALVANESE ERSILIA
Hearing Date: 31/05/2023 - filing 1/06/2023
On the appeal brought by.
GAR, born in Bucharest (Romania) on**/1978
against the judgment of 04/04/2023 of the Court of Appeal of Bologna
Having regard to the acts, the measure complained of and the appeal;
Hearing the report delivered by Justice Ersilia Calvanese;
read the requests of the Public Prosecutor, in the person of Deputy Attorney General Tomaso Epidendio, who concluded by requesting the dismissal of the appeal;
read the conclusions of counsel, AG, who asked that the grounds of appeal be upheld and, in the alternative, that a question be referred to the Court of Justice for a preliminary ruling on the interpretation of Article 8 of Framework Decision 2008/909.
1. In the judgment set forth in the epigraph, the Bologna Court of Appeal declared the recognition, on the basis of Legislative Decree No. 161 of 2010, of the irrevocable conviction issued by the Bucharest Court of Appeal on October 25, 2021 against ARG for the crime of trafficking in unlawful influence, ordering the execution in Italy of the sentence of three years' imprisonment.
2. The person concerned appealed against the aforementioned judgment in cassation, denouncing, through counsel, the grounds for annulment, as summarized in accordance with the provisions of Article 173 disp. att. cod. proc. penale.
2.1. Violation of the law in relation to Articles 8 Framework Decision No. 909/2008, 10 Legislative Decree No. 159 of 2011, 25 Const.
The Court of Appeals failed to consider the edictal penalty provided by Italian law at the time of the commission of the crime by the appellant (February 26, 2013 and April 4, 2013), the maximum of which was three years of imprisonment. The sentence imposed by the Romanian authority through an abbreviated procedure is eccentric with respect to our system, given the need in compliance with Article 25 of the Constitution to apply the penalty in force at the time of the act.
However, the penalty to be recognized and enforced must comply with the principles enshrined in Article 7 ECHR, referred to in the Framework Decision under review.
2.2. Violation of the law in relation to Articles 8 Framework Decision No. 909/2008, 10 Legislative Decree No. 159 of 2011.
The Court of Appeal, in recognizing the sentence, should have taken into account the criteria applied by the Romanian judge for the graduation of the sentence. Instead, the Court of Appeals ended up applying a penalty that, compared to the Italian edictal framework at the time of the facts, aggravated the appreciation of the fact.
2.3. Breach of law in relation to Articles 1 Legislative Decree No. 159 of 2011 and 27 Const.
The Romanian sentence is based on criteria of exemplarity incompatible with the re-educational purpose of punishment under Article 27 Const.
2.4. Breach of law in relation to Article 17 Framework Decision No. 909/2008.
The Court of Appeals failed to take into account the period of deprivation of liberty already suffered by the appellant (51 days), indicated in the judgment notice.
3. Having ordered the proceedings to be dealt with in writing, pursuant to Article 23, paragraph 8, of Decree-Law No. 137 of October 28, 2020, conv. by I. December 18, 2020, as amended, in the absence of a request within the terms therein for oral argument, the Attorney General filed written conclusions, as set forth therein.
Defense counsel filed written conclusions, also in rebuttal, insisting on supporting the grounds of appeal. As to the first plea in particular, the defense referred to the judgment of the Grand Chamber, Court of Human Rights, EDU, Scoppola v. Italy on the abbreviated procedure and the substantive nature of the relevant sentence discount, and envisages the need to submit to the Court of Justice the question of the scope of the judge's power of adaptation in recognizing the sentence.
CONSIDERED IN LAW
1. The appeal is unfounded and cannot be upheld.
2. As repeatedly clarified by this Court, for the purposes of the recognition of foreign criminal judgment requested in the context of judicial cooperation, for the purpose of meeting the requirement of double criminality it is sufficient that the law of the requested state contemplates as an offense the fact for which there was a conviction abroad at the time of the decision, and not also at the time of its commission, as instead provided for when criminal effects proper to the Italian legal system are derived from the foreign judgment (Sez. 6, no. 13571 of 30/01/2020, Rv. 278811).
This principle has also been repeatedly affirmed with reference to the European arrest warrant, due to the existence of the dual criminality requirement set forth in Article 7 of Law No. 69 of April 22, 2005 (Sect. 6, No. 3178 of 26/01/2022, Rv. 282748).
On the other hand, the Court of Justice (Grand Chamber judgment, May 3, 2007, C-303/05) and the EDU Court (decisions 6/06/1976, X v. Netherlands; 6/03/1991, Polley v. Belgium, 18/01/1996, Bakhtiar v. Switzerland) have affirmed that judicial cooperation respectively in the form of both the European arrest warrant and extradition stand outside the perimento of the principle of legality under Article 7 ECHR, since arrest and surrender, actions in which the execution of such procedures results, are not "punitive" in nature. Indeed, the judge in charge of initiating judicial cooperation must verify that all the necessary elements exist in order to surrender a person who is within his or her jurisdiction, without going into the merits of the criminal proceedings, except for the effects of the procedure itself, refraining from evaluating the evidence and pronouncing any judgment of guilt.
Thus what matters is the compatibility (as in the case at hand) of the duration and nature of the sentence applied with the conviction with those provided in Italy for similar crimes (Article 10, paragraph 5, Legislative Decree No. 161 of 2011) at the time of the decision.
3. The second and third grounds are also unfounded.
3.1. With regard to the second plea, it should be noted that the hypothesis set forth in Article 10, paragraph 5, of Legislative Decree No. 161 of 2011 is the only case of adaptation of the sentence permitted to the judge of the State of execution, which allows the sentence to be contained within a framework compatible with the Italian penalty system.
In this regard, the Court of Justice (judgment April 15, 2021, C-221/19) stated that the provisions of Art. 8(2) and (4) of Framework Decision 2008/909-which provide for the power to adapt the penalty "only if its duration is incompatible with the legislation of the executing State and when it exceeds the maximum penalty provided for by the legislation of that State for similar offenses" and that "the duration of the penalty thus adapted may not be less than the maximum penalty provided for similar offenses by the legislation of the executing State" and that "the adapted penalty may not be more serious than the penalty imposed in the issuing State in terms of its nature or duration"-establish "strict requirements for adaptation , by the competent authority of the executing Member State, of the sentence imposed in the issuing Member State, which constitute the only exceptions to the obligation in principle incumbent on that authority under Article 8(1) of that Framework Decision to recognize the judgment forwarded to it and to take forthwith all measures necessary for the enforcement of the sentence the duration and nature of which correspond to those provided for in the judgment imposed in the issuing Member State."
In the same sense, the Court of Justice had concluded in an earlier ruling (Judgment March 11, 2020, C-314/18), stating that Art. 8 of Framework Decision 2008/909 provides for "restrictive conditions for the adaptation, by the competent authority of the executing Member State, of the sentence pronounced in the issuing Member State, which are the only exceptions to the obligation in principle, incumbent on that authority under Article 8(1) of that Framework Decision to recognize the judgment forwarded to it and to enforce the sentence, the duration and nature of which correspond to those provided for in the judgment pronounced in the issuing Member State," and excluding the Dutch court's evoked prospect of being able to extend the power of adaptation (a solution that could not be accepted "unless one wished to deprive that provision and, in particular, the principle of recognition of the judgment and enforcement of the sentence, enshrined in its paragraph 1, of any useful effect").
3.2. The third ground of appeal does not refer to any hypothesis of refusal of recognition, and the issue is in any case resolved by the comments above.
4. The last plea does not result in the annulment of the judgment under appeal.
Article 16 of Legislative Decree No. 161 of 2010 stipulates that the execution of the sentence resulting from recognition takes place according to Italian law. In particular, it is up to the competent Attorney General's Office to issue the execution order, according to ordinary rules, thus also counting not only the sentence already served in the issuing State but also the period of pre-trial detention already suffered in Italy sine titulo (as in the present case for the previous surrender procedure concluded with refusal).
5. In conclusion, the appeal must be dismissed with the legal consequences in terms of costs.
The Chancery will provide the communications provided for by Article 22, paragraph 5 I. No. 69 of 2005, recalled by Article 12, paragraph 10, Legislative Decree No. 161 of 2010.
Dismisses the appeal and orders the appellant to pay the costs of the proceedings.
Sends to the Clerk's Office for the fulfilments of Article 22 paragraph 5, I. No. 69 of 2005.
Thus decided on 5/31/2023