In order to ensure a proportionate use of the trial-type European Arrest Warrant, it is necessary to consider the possible use of other judicial instruments available to the member states of the European Union and in particular the European Criminal Investigation Order (EIO).
COURT OF APPEAL OF MILAN
Criminal Section V
73/2023 Reg. Gen. MAE MAE Judgment dd. May 9, 2023
pronounced the following
On the request for surrender submitted by the Government of the Kingdom of Belgium against:
at the outcome of the hearing on 9.05.2023, held in chambers, during which the Prosecutor insisted mainly for a new postponement and, in the alternative, for the denial of the request, while the defense concluded for its rejection
On 17.01.2023, personnel from the Aliquota Guardia di Finanza of the Judicial Police Section at the Milan Public Prosecutor's Office arrested (omissis), in execution of the European arrest warrant issued on January 16, 2023 by the Judicial Authority of the Kingdom of Belgium - Brussels Court of First Instance, for the crimes of corruption, participation in a criminal organization and money laundering, committed in Belgium between 1. 1.2018 and 26.12.2022 By order issued on 18.1.2023, the Deputy Councilor of the Court of Appeal of Milan validated the arrest and ordered the application of the precautionary measure of house arrest, for the purpose of surrender (later replaced with a ban on expatriation, just order filed on 10.02.2023);
On the same date, at the hearing set for identification of the person, the person did not give consent and did not waive the principle of specialty.
On January 23, 2023, the Ministry of Justice transmitted the European arrest warrant
issued by the aforementioned Belgian judicial authority, attaching the Italian language translation. At the outcome of the hearing held on January 31, 2023, the Collegium, noting that in that document a generic reference was made to the need to place the requested person under arrest "for the purpose of prosecution or execution of a custodial sentence or a measure of protection deprivation of liberty" thus failing to meet the underlying requirements of the legal framework adopted by the member states of the European Union, adopted an interlocutory order in which it asked the Judicial Authority of the Kingdom of Belgium " whether and what acts of investigation are to be carried out with the necessary presence of the person requested to be surrendered ; whether his presence is indispensable for the continuation of the proceedings or for the purposes of prosecution; the reasons why it was decided not to use the instrument of the European Investigation Order."
In addition, information was also requested there on the prison situation in the requesting country, with particular regard to what the conditions of the prisoners in that prison are, how many prisoners are confined there, how much space they are expected to have in each cell, how much space they have, and what the hygienic conditions of the custodial institution in which (omissis) is supposed to be confined, as well as whether there are any measures in force that suspend or restrict the fundamental rights of the prisoners.
Then, at the hearing on March 9, 2023, noting that the supplementary information on the prison situation had been received, the Board found that no response had been received, however, regarding the other questions raised, so the Court reiterated the request, setting a new hearing for today's date, but to date no response has been delivered.
That being said, it appears from the documentation sent that the European Arrest Warrant in relation to which we are proceeding relates to three distinct hypotheses of crime and, in particular, the Belgian Authorities express themselves as follows about the circumstantial evidence weighing on the person requested to be surrendered: (omissis)
The arrest warrant indicates the violated norms: articles 246 to 252 of the Belgian Penal Code (corruption); articles 324 bis and 324 ter of the Belgian Penal Code (criminal organization); article 505 of the Belgian Penal Code (money laundering), punishable by the maximum term of imprisonment of 10 years.
It is the opinion of the Collegium that there should be no surrender of (omissis) to the A.G. of the Kingdom of Belgium for two reasons.
First, the arrest warrant in question is of a procedural nature and the person requested to be surrendered is an Italian national heir permanently residing in Italy, so that recital no. 26 of Directive 2014/41/EU should be recalled, according to which "in order to ensure a proportionate use of the European arrest warrant, the issuing authority should examine whether a European Investigation Order constitutes an effective and proportionate means of conducting criminal proceedings. The issuing authority should examine, in particular, whether the issuance of a European Investigation Order for the purpose of hearing a person under investigation or an accused person by videoconference may be a viable alternative."
It follows that, in order to ensure a proportionate use of the trial-type European Arrest Warrant, it is necessary to assess the possible use of other judicial instruments available to EU member states and in particular I 'European Order of Criminal Investigation (EIO), as also highlighted by the Court of Cassation (dr. Sec. 6, n 14937 of 14/4/2022).
In the present case, we are in the presence of an EAW issued for exclusively investigative needs, moreover, formulated in a very vague manner in content and time, that is, without specifically identifying the investigative acts to be carried out and without any reference to the subsequent exercise of criminal prosecution, in the face, moreover, of a total willingness shown by (omissis) to cooperate with the Belgian investigators.
Therefore, the objective uncertainty as to the investigative reasons underlying the adoption of the European Arrest Warrant at issue, required that the issuing authority be requested to provide the aforementioned supplementary information,but the persistent silence on the point by the Belgian Judicial Authority - solicited twice - necessitates the pronouncement of rejection set forth in the operative part.
Indeed, the Collegium considers that the surrender (omissis) should not be ordered to the requesting Judicial Authority, since the investigative needs indicated by the Belgian Judicial Authority could be met through the instrument of the European Investigation Order.
To this reason for refusal is added a further one, represented by the circumstance concerning the presence of criminal proceedings opened at the Public Prosecutor's Office at the Court of Milan (omissis)
It would thus appear to be a hypothesis of so-called "international lis pendens", given that one of the facts covered by the European arrest warrant - indeed the pivotal case in the Belgian proceedings - corresponds to the same historical event for which proceedings are being brought in Italy, taking into account the spatial-temporal and modal profiles of the facts, regardless of the legal qualification given to them by the different authorities.
Which falls under the provisions of Article 18-bis Law No. 69/2005, as amended, which contemplates an optional ground for refusal of surrender.
The refusal to surrender is followed by the revocation of the coercive measure in place (ban on expatriation).
Having regard to Articles 17 and 18-bis of Law No. 69 of April 22, 2005
the surrender of (omissis) to the Judicial Authority of the Kingdom of Belgium under the European Arrest Warrant issued on January 16, 2023 by the Judicial Authority of the Kingdom of Belgium - Brussels Court of First Instance, for the crimes of bribery, participation in a criminal organization and money laundering, committed in Belgium between 1.1.2018 and 26.12.2022.
Revokes the coercive measure of prohibition of expatriation in place applied (omissis).
Orders that this judgment be read at the hearing in the presence of the parties; the reading shall be equivalent to service on the parties, even if not present.
Orders that after the expiration of the time limit for filing an appeal provided for in Article 22 c. 1 L 69/2005, the judgment be immediately communicated to the Minister of Justice.