Who is arrested in extradition proceedings that should have been treated as a European arrest warrant has to be released.
Article 31 of the FD 584/2002 pn European Arresto Warrant rules that FD is the only legislation on surrender procedures between the member states of the European Union itself, with the relevant national adaptations, unless national rles provide better conditionsfor the defendant.
The Italian extradition legislation certainly cannot be said to be ameliorative to the legislation on EAW, as contained in L. 69/2005, as amended, as can be deduced from a simple comparison: between the terms set for making the arrested person available to the judge (48 hours in the hypothesis of art. 716 cpp, 24 hours in that provided for by art. 11 L. 69/2005); between the terms for the hearing of the arrested person (5 days from validation for art. 717 cpp, 48 hours from the receipt of the arrest report for Art. 13 L. 69/2005); between the procedures for deciding on the validation and adopting a precautionary measure (which take place inaudita altera parte ex art. 716 cpp, while they require the prior establishment of the adversarial process according to the discipline contained in Art. 13 L. 69/2005).
COURT OF APPEAL OF TRENTO
- CRIMINAL SECTION -
Having regard to the petition filed on 12/27/2022, during the hearing pursuant to art. 717 cpp, by defense counsel Nicola Canestrini of ML, born in Cyprus on **/1966, reiterated at today's hearing in chambers, celebrated pursuant to art. 718 cpp, in extradition proceedings against the above-mentioned, arrested on 12/22/2022 by the Carabinieri of the Provincial Command of Trento;
noted that the arrest was carried out because ML was affected by an arrest warrant issued on **12/2022 by ** Nicosia (Cyprus) for the crime of money laundering, p. e p. by articles 298 ch. 154 2, 302 ch. 154 3 L. 22/1/2021, which provide for the maximum sentence of 24 years imprisonment, an act committed in Nicosia in the period between 1/1/2022 and 5/8/2022, described as follows: " ... the wanted person introduced himself as a representative of a German factory based in ***that produces *** and convinced his victim to ** products. The products were to be imported to Cyprus from ** through **. * managed to illegally obtain from the complainant the total amount of ** euros without **" (see note ***/ INTERPOL of the Ministry of the Interior-Department of Public Security- Direz. Central Criminal Police);
considering that the arrest was validated by an order issued by the Deputy Counsel on 12/22/2022, pursuant to Article 715 of the Criminal Code, by which the precautionary measure of custody in prison was also ordered;
considering that the petition has as its object: 1) principally, the declaration of ineffectiveness of the arrest made; 2) in the alternative, the declaration of nullity of the order of validation of the arrest; 3) in ogr case, the revocation of the precautionary measure applied, as it was ordered outside the cases provided for by law; 4) in any case, the refusal of the surrender, pursuant to Art. 2 L. 69/2005, recalling defender in this regard the conditions of the Cyprus prison, such as not to ensure compliance with the prohibition to subject the detainee to inhuman and degrading treatment;
Having read the brief filed by the defense counsel at the hearing of 12/27/2022, with attached documents; having heard the opinion of the Attorney General, in favor of the declaration of loss of effectiveness of the precautionary measure
The defense counsel's requests above in nos. 1), 2), 3) are of an absorbing nature.
In summary, defense counsel argues that the present proceeding has been erroneously characterized and treated as "extraditionary," when it is instead a European arrest warrant proceeding.
It follows that the acts actually carried out, in particular the validation of the arrest with simultaneous application of custodial precautionary measure, without prior establishment of cross-examination, and the subsequent interrogation of the arrested person, insofar as they were carried out according to the provisions of Articles 716 and 717 of the Criminal Code, unduly took the place of the fulfillments that instead should have been carried out pursuant to Articles 11, 12 and 13 of Law 69/2005, as amended, which provide for different modalities and a different and more stringent timeline.
The exceptions are well-founded.
It should be recalled that the Republic of Cyprus, the applicant state in these proceedings, is a member of the European Union, like Italy. Therefore, the legislation contained in Framework Decision 2002/584/JHA of June 13, 2002, on the subject of European arrest warrants applies to both of these states. Both states concerned have at the time adopted domestic provisions to bring their law into line with this framework decision. For Italy, as is well known, this is L. 69/2005, as amended by DLvo 10/2021.
Article 31 of the Framework Decision establishes, in the first paragraph, that the provisions contained in the measure itself replace, as of January 2004, in relations between member states, the corresponding provisions of a series of conventions, punctually listed in the same article, including the European Convention on Extradition of December 13, 1957, with its additional and supplementary protocols, a convention ratified at the time by both Cyprus and Italy (by the latter, in particular, by L. 30/1/1963 no. 300).
Moreover, the second paragraph of the same article provides that member states may continue to apply bilateral or multilateral agreements or arrangements in force at the time of the adoption of the framework decision insofar as they enable the objectives of the framework decision to be deepened or gone beyond and help to further simplify or facilitate the surrender of the wanted person. Similarly, the third paragraph allows member states to conclude bilateral or multilateral agreements or arrangements after the entry into force of the Framework Decision, always to the extent that these allow for deepening or going beyond the objectives of the Framework Decision and contribute to further simplifying or facilitating the surrender of the wanted person, in particular by setting shorter deadlines than those in Article 17, extending the list of offenses in Article 2, further reducing the grounds for refusal in Articles 3 and 4, or lowering the threshold in Article
2. Article 31 does not expressly refer to domestic extradition regulations, which would include, in Italy's case, those contained in Articles 697 to 722 bis of the Code of Criminal Procedure.
However, even taking into account the provision of Article 705 of the Code of Criminal Procedure, in the mind of which the Court of Appeals pronounces judgment in favor of extradition in the presence of the requirements described in the same provision, but provided that there is no convention or the convention does not provide otherwise, it is clear that the domestic regulations find residual application over the conventional ones.
Therefore, Article 31 of the Community Decision, with which Italy has complied, is intended to mean that the only legislation on surrender procedures between EU member states is that of the Framework Decision itself, with the relevant national adaptations, procedures that are ameliorative to those established by the Framework Decision itself.
Well, as ML's counsel correctly observes, the codified legislation that has been applied up to this point in the present proceeding certainly cannot be said to be ameliorative with respect to the legislation on EAWs, as contained in Law 69/2005 et seq, as can be deduced from a simple comparison: between the terms set for making the arrested person available to the judge (48 hours in the hypothesis of art. 716 cpp, 24 hours in that provided by art. 11 L. 69/2005); between the terms for the hearing of the arrested person (5 days from validation for art. 717 cpp, 48 hours from the receipt of the arrest report for Art. 13 L. 69/2005); between the modalities for deciding on the validation and the adoption of a precautionary measure (which take place inaudita altera parte ex art. 716 cpp, while they require the prior establishment of the adversarial process according to the discipline contained in Art. 13 L. 69/2005).
Nor does there appear to be in place a convention on the subject between Italy and Cyprus, with content that can be said to improve on the MFA discipline.
Therefore, there is no possibility of applying (perhaps in a residual or subsidiary way) the codified regulations.
From all this it clearly follows that the procedure followed in the present case does not comply with the law.
Nor does it appear possible to convert to the procedure established on the subject of EAW, given that, as things stand, this Court has received neither the European Arrest Warrant from the issuing State nor the "A" form, containing the information suitable for compliance with the procedure under Law 69/2005, translated into Italian.
It is therefore not possible to remedy the flaws in the procedure, in particular with regard to the situation inherent to the personal freedom of the arrested person.
Therefore, the ineffectiveness of the arrest made must be declared, due to the failure to properly and promptly hold the validation hearing and to comply with the other rules on the subject, and in any case the nullity of the validation order and the concomitant order to adopt the precautionary measure.
Accordingly, the release of *** should be ordered.
grants the petition and therefore declares the ineffectiveness of the arrest made and the nullity of the validation order and the concurrent order adopting the precautionary measure;
consequently orders that LM born in Cyprus, ** be immediately released from custody, where not detained for any other cause.
Notice is hereby given to all concerned.
Trent, December 30, 2022