When an European Arrest Warrant is refused by an Italian court due to Italian citizenship or EU residence the judge has to recognize the judgment of issuing state for the eonfrocemxet of the sentence in Italy.
SUPREME COURT OF CASSATION
SIXTH CRIMINAL SECTION
(date of hearing 07/03/2023) 08/03/2023, No. 9863
Composed of the Honorable Messrs:
Dr. PETRUZZELLIS Anna - President -
Dr. CAPOZZI Angelo - Councilor -
Dr. GIORDANO Emilia Anna - Councilor -
Dott. GALLUCCI Enrico - rel. Consigliere -
Dr. VIGNA Maria Sabina - Councilor -
pronounced the following:
On the appeal brought by:
A.A., born in (Omissis);
against the judgment of the Court of Appeal of Naples dated 12/01/2023;
Having regard to the acts, the judgment under appeal and the appeal;
heard the report delivered by Councilor Enrico Gallucci;
read the written submissions of the Public Prosecutor, in the person of Deputy Attorney General, Lettieri Nicola, who requested that the appeal be declared inadmissible.
1. By the judgment under appeal, the Court of Appeal of Naples denied the surrender of A.A. (an Italian citizen) requested pursuant to a European arrest warrant issued by the Judicial Authority of Belgium for the execution of the residual sentence of 1,706 days' imprisonment - relating to a five-year sentence - imposed for the crime of production, sale, and purchase of narcotics by the Court of Appeal of Antwerp in a judgment of September 15, 2021, which became enforceable.
2. The Court of Appeals held that all the conditions for granting the request were met but that, since the person concerned was an Italian citizen, the optional ground for refusal of surrender under Law No. 69 of 2005, art. 18 bis, paragraph 2, should be applied, all the conditions for the recognition of the foreign conviction Decree No. 161 of 2010, pursuant to art. 10 sentence of which it therefore ordered the execution in Italy.
3. A.A. appeals against the judgment, through his defense attorneys, relying on a single ground of appeal, relating to the illegitimacy of the recognition of the foreign judgment made by the Parthenopean Court. This is because, in fact, the foreign proceedings were held in the defendant's default and, therefore, it would have been necessary to ascertain the existence of sufficient guarantees suitable to allow the convicted person the opportunity to object and request a new trial in the Belgian state and to be present at that trial.
Reasons for the decision
1. The appeal is well founded.
2. This Court has clarified that on the subject of the European Arrest Warrant, the Court of Appeals that refuses to surrender pursuant to Law No. 69, Art. 18-bis, lett. c) of April 22, 2005, ordering the execution in the State of the sentence imposed on the Italian citizen or citizen of another country of the Union legitimately residing or dwelling in Italy, is required to formally recognize the judgment on which the EAW in accordance with the provisions of Legislative Decree No. 161 of September 7, 2010, containing provisions to bring domestic law into line with Framework Decision 2008/909/JHA of April 27, 2008, on the principle of mutual recognition of criminal judgments imposing custodial sentences, for the purpose of their enforcement in the European Union (Sez. 6, No. 29685 of 26/10/2020, Rapa Paraschiva, Rv. 279957).
3. In turn, Legislative Decree No. 161 of 2010, Art. 13 paragraph 1, lett. (i), stipulates that the Court of Appeals shall refuse recognition "if the person concerned did not appear in person at the trial ended with the decision to be enforced, unless the certificate states: (1) that, in due course, he or she was summoned in person and, therefore, informed of the date and place fixed for the trial or that he or she was in fact officially informed by other means, suitable to prove unequivocally that he or she was aware of it, as well as that he or she was informed that a decision might be issued in the event of his or her failure to, appear at the trial; or (2) that, being aware of the date fixed for the trial, he or she had given a mandate to a defense counsel, either of his or her own choosing or of his or her own office, by whom he or she was in fact assisted at the trial or 3) who, having been notified of the decision and having been expressly informed of the right to a retrial or appeal with an opportunity to participate in it in order to obtain a review of the merits of the charge, including the taking of new evidence, expressly stated that he or she did not object to the decision or did not request a retrial or appeal within the time limit set for that purpose."
4. The appealed judgment notes that all the conditions for recognition of the foreign judgment are met, indicating, among other things, that the Belgian conviction "was not pronounced in absentia."
5. In fact, it appears from the MFA form attached to the surrender request that the person concerned "did not appear in person at the hearing that led to the decision" and that he "was not represented by a lawyer" and that "the decision was not served personally, but the decision will be served on the person concerned immediately after the surrender," a person concerned who will be able to lodge an objection and request a new judgment on the merits.
6. Given the contrast between what is indicated in the contested judgment and the MFA's attestation, regarding the manner in which the Belgian judgment was celebrated, it is necessary to annul the contested judgment with reference so that the Court of Appeals may give reasons regarding the actual existence of the prerequisites required by Legislative Decree No. 161 of 2010, Article 13 for the recognition of the foreign judgment.
FOR THIS REASONS
annuls the judgment and remands for new judgment to the Naples Court of Appeals.
Sends to the clerk's office for the fulfilments set forth in Law No. 69 of 2005, Article 22, Paragraph 5.
Thus decided in Rome, March 7, 2023.
Filed in the Registry on March 8, 2023.