The prosecution of an alleged criminal conduct, even if heinous and ignominious, must pass, in a rule of law, through compliance with the rules of due process regulated by law, which takes place in full and effective adversarial procedure.
The law, in continuity with the gradual introduction in the criminal trial system of rules of greater effectiveness of participation in the trial under the decisive thrust of decisions of the Strasbourg Court, definitively overcame the procedure in absentia -based on the mere appreciation of the formal regularity of notifications-by providing for a linear model on the general level, according to which the judge proceeds only if it appears to him with certainty that the defendant did not appear at the hearing out of his own free will, knowing the content of the charges, the date and place of the trial, or the defendant's own will to evade knowledge of the proceedings or its acts.
The prerequisite for any fair trial is that the judge proceeds having certainty that the defendant is aware of the charges and summoned with notice go the hearing (vocatio in iudicium).
The issue affecting cooperation between states and the unjustified lack of cooperation of the foreign judicial authority is extraneous to the exercise of judicial activity, which is carried out by correctly applying positive law, on the basis of an interpretation in accordance with law and binding, such as that expressed by the Italian Court of Cassation in its highest formation.
The Italian jurisdiction is obliged to apply without tearing the normative fabric, guaranteeing and respecting the rights of all the procedural parties according to the interpretative coordinates delivered, on the subject of judgment in absentia, by the United Sections, belongs to the competent Government Authorities, also in the light of the obligations of assistance and cooperation for them arising from international Conventions, and, among these more specifically, from the one against torture and other cruel, inhuman or degrading treatment or punishment, concluded in New York on December 10, 1984, ratified by Italy by law of November 3, 1988, no. 498, and by (Omissis) on January 25, 1986.
(unofficial machine translation)
SUPREME COURT OF CASSATION
FIRST CRIMINAL SECTION
(date of hearing 15/07/2022) 09/02/2023, No. 5675
Composed of the Honorable Magistrates:
Dr. MOGINI Stefano - President -
Dr. TERDIO Angela - rel. Councilor -
Dott. SIANI Vincenzo - Councilor -
Dr. MANCUSO Luigi F.A. - Councilor -
Dr. CALASELICE Barbara - Councilor -
pronounced the following:
On the appeal brought by:
Public Prosecutor at the Court of Rome;
In the proceedings against A.A., born in (Omissis);
B.B., born in (Omissis);
C.C., born in (Omissis);
D.D., born in (Omissis);
and in respect of:
Presidency of the Council of Ministers E.E.;
against the order of 11/04/2022 of the Judge of the Preliminary Hearing of the Court of Rome;
Having regard to the acts, the contested order and the appeal;
Hearing the report delivered by Councilor Angela Tardio;
read the written requests of the Public Prosecutor, in the person of Deputy Attorney General Mariella de Masellis, who concluded by requesting:
- Annulment without referral of the suspension order issued by the Judge of the Preliminary Hearing of Rome on April 11, 2022, and of the prerequisite order of the Court of Assizes of Rome of October 14, 2021, with transmission of the acts to the Court of Assizes of Rome for further course;
- in the alternative, to refer the appeal to the United Sections for the resolution of the following question of law: "whether the measure by which the judge, despite the presence of certain indicators of voluntary removal of the defendant from the knowledge of the proceedings or its acts and the ascertained impossibility of reaching the person concerned with the ordinary means of notification, orders the suspension of the trial, pursuant to Article 420-quater of the Code of Criminal Procedure, thus determining an unremediable situation of procedural paralysis, is affected by abnormality."
- in a further graduated manner, to declare the relevance and not manifestly unfoundedness of the question of constitutionality, with reference to Articles 3, 111 and 117 of the Constitution, of Article 420-bis, paragraph 2, last sentence, of the Code of Criminal Procedure - in relation to Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and Directive 2012/29/EU of the European Parliament and of the Council of October 25, 2012 on the rights, assistance and protection of victims of crime - and Article 420-quater of the Code of Criminal Procedure insofar as Article 420-quater of the Code of Criminal Procedure provides for the suspension of the trial, even in the event of a non-reversible impossibility of serving the notice of the hearing on the defendant, who has nevertheless acquired knowledge of the proceedings or has voluntarily evaded knowledge of the proceedings or acts thereof pursuant to Article 420-bis, paragraph 2, last sentence, of the Code of Criminal Procedure, resulting in a situation of procedural paralysis for an indefinite period of time;
read the written conclusions of the lawyer AB for F.F. and E.E., who requested, in upholding the appeal filed by the Rome Public Prosecutor's Office, a declaration, pursuant to art. 606 lett. b) c.p.p, the nullity of the contested order of the Gup declaring the suspension of the proceedings, and of all the preliminary acts, for having erroneously requested proof of the notification of the vocatio in iudicium and of the specific charges raised for the purposes of the application of art. 420-bis, paragraph 2, last hypothesis, c.p.p;
read the written conclusions of the State Attorney for the Presidency of the Council of Ministers, who joined the defenses and requests made by the Public Prosecutor;
read the written conclusions of Attorney PA, public defender of A.A., who asked that the appeal brought by the Public Prosecutor be inadmissible or, in the alternative, rejected;
read the written conclusions of lawyer TS, public defender of B.B., who asked that the appeal proposed by the Public Prosecutor be declared inadmissible or, in any case, rejected as groundless;
read the written conclusions of lawyer GV, public defender of C.C., who asked that the appeal filed by the Public Prosecutor be declared inadmissible, deeming the order by which the Gup of the Court of Rome suspended the trial for requesting proof of C.C.'s vocatio in iudicium not abnormal;
read the written conclusions of Mr. ALT, D.D.'s public defender, who asked that the appeal be declared unfounded or inadmissible, since the suspension of the trial ordered by the Gup did not constitute an abnormal act since it was issued pursuant to Article 28 of the Code of Criminal Procedure following the order issued by the Court of Assizes on October 14, 2021, which, in turn, was issued in compliance with national and supranational regulations and case law.
Conduct of the trial
1. On January 20, 2021, the Public Prosecutor at the Court of Rome requested the indictment of
A.A., B.B., C.C. and D.D., Egyptian citizens declared untraceable by decrees dated January 28, 2020, in connection with the following charge:
"(a) the crime referred to in Articles 110, 605, first and paragraph 2, no. 2), 61 no. 1), and 4), of the Criminal Code because, in conspiracy with each other and with other persons at the state unidentified, following the complaint filed, in the offices of National Security, by I.I, a representative of the independent union of street vendors de (Omissis), after having directly and indirectly observed and controlled, from the fall of 2015 to the evening of (Omissis), Giulio Regeni, an Italian doctoral student at Cambridge University, abusing their capacities as Egyptian public officials, blocked him inside the (Omissis) subway and, after leading him against his will and outside of any institutional activity, first to the (Omissis) police station and then to a building in (Omissis), deprived him of his personal freedom for nine days.
In (Omissis), (Omissis), from (Omissis)."
For D.D. alone, the request also covered the following charges:
"(b) the crime under Articles 110, 582, 583, No. 2, 585, in connection with Article 576 No. 2), and 61 Nos. 1), 4) and 9), Criminal Code. because, after committing the crime referred to in the preceding head, in complicity with persons at the state unidentified, for abject and futile reasons and abusing their powers, with cruelty, caused Giulio Regeni injuries, which would have prevented him from attending to ordinary occupations for more than 40 days as well as resulted in the permanent weakening and loss of several organs, by torturing him, with acute physical suffering, on several occasions and at a distance of several days:
- through instruments with sharp and cutting edges and actions with urente mechanism, by which they caused him numerous traumatic injuries to the head, face, cervical-dorsal tract and lower limbs;
- through repeated impacts by blunt means (kicks or punches and/or the use of personal offensive tools, such as sticks, clubs) and mechanisms of repeated projection of the body of the same against rigid and inelastic surfaces with which they caused him: fracture of the dental elements 11, 12, 31, 41 and 42; fracture of the left and right scapula; fracture of the right humerus; compound fracture of bones of the trapezius and trapezoid capitate and the right wrist hamate; fracture of the proximal phalanx of the II finger of the right; fracture of the base of the I metacarpal of the left; fracture of the middle III of the proximal phalanx of the left I finger; fracture of the base of the right V metatarsal; fracture of the distal III of the right V metatarsal; fracture of the proximal phalanx of the right V finger; fracture of the head of the right fibula; cortical detachment of the apex of the left fibula.
In (Omissis), (Omissis), from (Omissis) (c) crime under Articles 110, 575, 576 n. 2), 61 n. 1), 2), 4), and 9), Criminal Code, because, under the circumstances of time and place referred to in the preceding heads and after having carried out the above crimes, in conspiracy with persons at the state unidentified, in order to conceal the commission of the above crimes, abusing his powers as an Egyptian public official with maltreatment and cruelty, by means of a violent contusive action, exerted on the various cranial-cervical-dorsal body districts, caused imposing injuries of a traumatic nature to Giulio Regeni from which resulted an acute respiratory failure of a central type that led to his death. The body was, then, found on (Omissis) along the (Omissis).
In (Omissis), (Omissis), at a time encompassed by (Omissis)."
2. On May 25, 2021, the Judge for Preliminary Investigations of the Court of Rome, acting as judge of the preliminary hearing (henceforth Gup), having verified the regularity of the notifications made pursuant to Article 159 of the Code of Criminal Procedure, ordered, by order pursuant to Article 420-bis of the Code of Criminal Procedure, to proceed in the absence of the defendants, who were declared unavailable by orders of the Public Prosecutor dated January 28, 2020, and, considering the jurisdiction of the Italian state, the competence of the Court of Rome, the correct identification of the defendants and the suitability of the elements acquired to support the prosecution at trial, ordered, by order pursuant to Article 429 of the Code of Criminal Procedure, that the defendants be remanded for trial before the Court of Assizes of Rome for the hearing on October 14, 2021.
By reason of the declaration of absence, the judge, in particular, believed that it could be inferred with absolute certainty from specific illustrated evidence that the defendants, agents of the Egyptian National Security, had acquired full awareness of the existence of the proceedings against them for the kidnapping and killing of Giulio Regeni, of its terminative developments and of the date of the preliminary hearing, which had already been set for April 29, 2021 and adjourned with an invitation to the parties to interlocute regarding the verification of the proper constitution of the parties, and had voluntarily evaded formal knowledge of the acts taken in the course of the proceedings, not making the relevant notifications possible.
He noted, in particular, that:
(a) as a result of active rogatory letters from the prosecuting prosecutor, the suspects had been heard several times by the Egyptian judiciary as persons with information on the facts and, in those venues, had acquired knowledge of the existence of criminal proceedings instituted in Italy following the death of Giulio Regeni;
(b) news of the pendency of the proceedings, and mainly of the terminative acts taken by the prosecuting prosecutor, including the conclusion of the preliminary investigation and the issuance of the notices pursuant to Article 415-bis of the Code of Criminal Procedure, prodromal to the indictment request of January 20, 2021, as well as the quality of "suspects" held by the alleged perpetrators, the evidence collected against them, and the date set for the preliminary hearing, had been the subject of international media coverage, objectively extraordinary and widespread, such as to draw on the notion of "notorious," according to the timely briefings of April 14, 2021 and April 26, 2021 by the ROS Carabinieri;
c) the Egyptian investigative apparatuses were aware of the developments and the outcome of the Italian proceedings, as evidenced by the numerous meetings held in this regard, over time, by the so-called Italian-Egyptian "joint investigative team", and by the content of the "memorandum" drafted by the Egyptian Prosecutor General's Office on December 26, 2020, containing the description and rebuttal of the evidence collected by the Rome Prosecutor's Office;
d) the suspects, moreover, had been repeatedly invited, without any follow-up, to elect domicile in Italy, according to the provision of Article 169 of the Code of Criminal Procedure, by rogatorial means (with a rogatory request sent on April 30, 2019 by the prosecutor in the case to the Egyptian Public Prosecutor's Office, repeatedly solicited orally and by e-mail on January 22, 2020, July I, 2020, September 17, 2020 and November 20, 2020) and by diplomatic means (with a missive sent on January 21, 2020 to the same Egyptian Public Prosecutor's Office by the Italian ambassador, containing a firm appeal for the Rome Public Prosecutor's Office to be put in a position "to receive information regarding the address (. ..) where to send the acts of notification to the National Security officers included in the list of suspects.").
3. The Rome Court of Assizes on October 14, 2021 declared null and void the declaration of absence and the subsequent decree ordering the trial, adopted against the defendants at the preliminary hearing on May 25, 2021, ordering the return of the documents to the Gup.
3.1. The Court, which recalled the domestic and supranational legal framework on the trial in absentia, as outlined in the approaches of constitutional and legitimacy jurisprudence and the European Court of Human Rights and Fundamental Freedoms (henceforth the EDU Court), dwelt in particular on examining the contents, which it shared, of the judgment of the United Sections of the Court of Cassation, no. 23949 of 2020, Ismail, and on reading them in light of the arguments, which he indicated were timely, of the judgment, which constituted its premise, of the EDU Court, Sejdovic v. Italy, of November 10, 2004.
It emphasized the need, in order to proceed in absentia, for the certainty of the defendants' actual knowledge of the vocatio in iudicium on the specific charges, and the particular rigour to be reserved in assessing procedability in absentia in order to guarantee a fair trial to every defendant; it represented that, outside the hypotheses referred to in Articles 420-bis and 420-ter of the Code of Criminal Procedure, the only useful form, for the purposes of effective knowledge of the trial and the proper establishment of the procedural relationship, was to be considered personal service, as provided for in Article 420-quater of the Code of Criminal Procedure. ; it also pointed out that the only hypothesis for proceeding in absentia, without the defendant having received personal service and there being actual knowledge of the vocatio in iudicium, was voluntary evasion "from knowledge of the proceedings or acts of the proceedings," drawn from positive conduct not typified and to be ascertained in fact.
3.2. On the point of fact, the court noted that the factual indices, which were valorized at the preliminary hearing to draw circumstantially on the defendants' actual knowledge of the proceedings and declare their absence, and the additional elements represented by the Public Prosecutor in a memorandum, and developed at the hearing, which it retraced argumentatively and critically, were not suitable, even when considered jointly, to give certain proof of actual knowledge on the part of the defendants, not even specifically identified and not reached by any official act, of the indictment, the pendency of a trial against them and the vocatio in iudicium before the Gup first, and before the Court of Assizes later, for specific charges pertaining to multiple offenses, differently ascribed, in the terms imposed by the constitutional and conventional framework, indispensable for the purposes of the declaration of absence.
Instead, what was at issue, in the Court's view, was presumptive data, from which it was possible to infer only the defendants' generic knowledge of the existence of criminal proceedings against them for serious offenses against the researcher Giulio Regeni, and, without the demonstration with a reasonable degree of certainty of sufficient knowledge of the prosecution and the charges, it could not even be concluded that the defendants had attempted to evade justice or had unequivocally waived their right to participate in the trial.
Undoubtedly demonstrative of a lack of loyal cooperation by the Egyptian judicial authority, and in particular by the Egyptian Public Prosecutor's Office constituting an articulation of the executive power according to the domestic legal system, were certain factual data put forward by the Public Prosecutor, who had also complained of omissions, delays, and refusals opposed by them in the course of the cooperation provided, the interruption of said cooperation after the defendants were entered in the register of criminal offenses, and the refusal by it to act on the Italian judiciary's request for letters rogatory.
These grievances, however, remained absorbed by the limits of insufficient proof of the defendants' knowledge of the contents of the indictment, since, in the absence of full proof, it was not possible to assess any behavior "as an expression of voluntary evasion, not being able to want to evade a trial whose contents are not sufficiently known."
Nor, in violation of the principle of non-guilt, could such a conclusion be reached on the basis of the defendants' alleged involvement in the crimes charged.
3.3. The Court, while recognizing the peculiarity of the case, the systematic inaction of the Egyptian authorities to follow up on Italian requests, which were not brought to the attention of the individual suspects/defendants, and the fact that the defendants for being, at the time of the facts, members of governmental police apparatuses were in the conditions of privileged knowledge of information sources and interlocutions between the states, Italian and Egyptian, he emphasized that there was no evidence that the defendants had played any role, even a moral one, in the possible determinations of the highest Egyptian authorities to provide disloyal cooperation or in denying cooperation, so as to charge them with the contested conduct in cooperation.
The lack of the prerequisites for hinging the trial entailed irremediable prejudice to the defendants' rights of defense and to a fair trial, pursuant to Articles 24 and 111 Const. and 6 European Convention on Human Rights and Fundamental Freedoms (henceforth EDU Convention), and gave rise to nullity for violation of the adversarial nature of an absolute nature, pursuant to Article 179 of the Code of Criminal Procedure, of the preliminary hearing and the issued decree ordering the trial, all other defense objections regarding the alleged nullity of the notifications being absorbed.
4. During the new preliminary hearing, held on January 10, 2022, the Gup, as a result of the ordered return of the acts with the order of the Assize Court, which judged "not (...) debatable in this court, because in case of "contrast" between the judge of the preliminary hearing and the trial judge prevails the decision of the latter ex art. 28 c.p.p.," ordered the personal service on the defendants of the notice of the setting of the preliminary hearing and the prosecutor's request for indictment, which was considered an indispensable step to avoid the suspension of the trial, and new searches under Art. 420-quater c.p.p, postponing the proceedings to April 11, 2022.
5. On April 11, 2022, the Gup ordered "the suspension of the trial" No. 52239/18 R.G.N. R. - No. 16307/19 GIP, considering that the case provided for in Article 420-quater, paragraph 2, c.p.p., was integrated, due to the continued state of unavailability of the defendants, as it had not been possible to locate them in order to proceed with the service of the notice of the preliminary hearing and the annexes (request for indictment and minutes of the preliminary hearing of January 10, 2022), as it appeared from the note of the Head of the Department for Justice Affairs of the Ministry of Justice dated April 7, 2022 and the note of the R. O.S. Carabinieri Anti-Terrorism Department 4 section dated March 31, 2022 No. 195/1-416-1 prot. 2016, of which he read to the parties.
The proceedings were adjourned concurrently to the hearing in continuation of October 10, 2022, ordering the summons for said hearing of the Head of the Department of Justice Affairs for his hearing regarding the results of the clarifications requested on March 22, 2022 from the Attorney General's Office of the Arab Republic of (Omissis), the conduct, through the R. O.S. Carabinieri-Anti-Terrorism Department 4 section, of new searches of the defendants, as indicated in the order of January 10, 2022, and the possible execution also of the notification against them of the indicated acts at their places of residence or abode abroad (in (Omissis)).
According to the Judge:
- the postponement of the preliminary hearing without suspension of the proceedings could not be ordered because the expected response of the General Prosecutor's Office of the Arab Republic of Egypt pertained not "to the investigations of the prosecutor's office aimed at overcoming the unavailability of the defendants, but rather to the lack of cooperation of the Egyptian judicial authorities with respect to the request for international judicial assistance made by the Italian authorities."
- were specious the arguments of the Egyptian General Prosecutor's Office, which had evoked the application of the principle of ne bis in idem for having adopted a measure of closure of the investigation or archiving called "Memorandum of the General Prosecutor's Office on the disappearance and death of the Italian victim, Giulio Regeni.", dated December 26, 2020, having regard to the lack of indication of the reference legislation and the antecedence of the rogatory of the Public Prosecutor's Office of April 30, 2019 with respect to the adoption of the indicated Memorandum;
- however, the now established fact of the Egyptian Judicial Authority's refusal to cooperate could not be overcome only by rejecting the arguments of the Egyptian Prosecutor General's Office;
- neither could the service of the documents on the defendants at the workplaces indicated presumptively be proceeded with, since, while one of them was in retirement at the time, it would have been an attempt that might not have been defined by the service of the documents at their own hands, in the absence of certainty as to the person receiving the document, the actual delivery to the addressee and its identification.
6. The Public Prosecutor at the Court of Rome filed an appeal in cassation against the aforementioned order dated April 11, 2022, and the prerequisite measures that had been read out during the preliminary hearing, alleging with a single articulated plea, pursuant to Article 606, paragraph 1(b), Code of Criminal Procedure, inobservance and/or erroneous application of Article 420-bis of the Code of Criminal Procedure and nullity of the order of suspension of proceedings because it was an abnormal act, having determined, together with the measures of which it constituted a consequential effect, the stasis of the proceedings and the impossibility of continuing them.
6.1. The appellant, having preliminarily retraced the articulated course of the proceedings, deepened, in the context of an extensive argumentative development, the legal concept of abnormality, following the evolution of the jurisprudence of the United Sections, and dwelt, in particular, on the contrasting jurisprudence of legitimacy of the Simple Sections, which had ruled on the question of the qualification as an abnormal act of the order of suspension of proceedings, pursuant to Article 420-quater of the Code of Criminal Procedure, which he submitted for critical analysis.
Considering central, with regard to the qualification of the suspension order as an abnormal act, the examination of the effects produced, in law and in fact, by the order rendered under Article 420-quater of the Code of Criminal Procedure, noted that the provisions of said provision and Article 420-quinquies of the Code of Criminal Procedure - introducing the possibility of acquiring, at the request of a party, evidence that cannot be postponed and the possibility of renewal, by the judge, at least once a year, of searches of the defendants by the judicial police - were not sufficient to exclude the stasis of the proceedings and the abnormality of the order, to be appreciated from a functional standpoint in relation to the "impasse that cannot be remedied except through the removal of the act."
The suitability of the provisions on periodic searches of the defendants to be an impetus to the proceedings had, therefore, to be examined in fact, according to the plaintiff, depending on the same on the concrete and reasonable possibility of having a positive outcome of the searches, which could not be detected in the presence of the absolute certainty of the opposite result, due to the concrete circumstances (including the refusal of the cooperation of the State where the defendants resided to the rogatorial activity, which had already been carried out).
It was, moreover, of macroscopic evidence, in support of the abstract admissibility, as an abnormal act, of the order of suspension of the trial, how from the unjustified suspension sine die of the trial could result in a very serious injury to the right of the defendants of the constituting civil parties to the trial, family members of the offended person and the Presidency of the Council of Ministers, as the act had to be qualified as a source of an otherwise irremediable prejudice to the subjective situations of the parties, in addition to having altered the orderly logical-chronological sequence of the trial causing its stasis, contrary to the constitutional principle of the reasonable duration of the trial.
6.2. There were, in the appellant's opinion, the prerequisites for the admissibility of the appeal to be appealable the aforementioned order dated April 11, 2022, which had been the first measure to bring about the stasis of the proceedings, unlike the order of the Rome Assize Court of October 14, 2021, which had, instead, caused a regression of the proceedings to the preliminary hearing stage and, as such, was not appealable in the absence of an explicit legislative provision.
However, that last order had established the principle of law, which the Gup had to abide by and which the same, in the absence of relevant new facts, had deemed binding pursuant to Article 28c.p.p., determining "a biphasic consequential abnormality because it was put in place in two distinct moments (of which the first is not independently appealable) and which, although chronologically separate, are closely connected, as to the effects produced, because the result of the sum of them."
Since, in the final analysis, only the final abnormal act issued by the Gup as a result of the hearing held on April 11, 2022 could be challenged, the proposed appeal was to be considered the only remedy available against said act within the legal time limit set forth in Article 585 of the Code of Criminal Procedure (in this case, fifteen days), which is also applicable, according to established case law, with reference to the cassation appeal against an abnormal act.
6.3. The order of October 14, 2021, held by the Gup to be a binding interpretative prerequisite for its decision, had, according to the appellant, misapplied Article 420-bis, paragraph 2, of the Code of Criminal Procedure, lumping together the two different hypotheses envisaged - that of certain knowledge of the proceedings and that of voluntary abduction - and considering it necessary for both, instead autonomous, knowledge of the accusation and vocatio in iudicium.
Taking up the factual elements and illustrating the arguments developed at the hearing by the Public Prosecutor, the order had, in fact, held that only in the presence of "certain proof of the defendants' knowledge of the pendency of a trial and of the vocatio in iudicium," was it possible to say that the defendant had "voluntarily evaded knowledge of the proceedings or acts thereof," appreciating the EDU Court's Sejdovic v. Italy of 2006 as the only interpretative parameter within the supranational jurisprudence, not proceeding to a comprehensive reading of the provisions and such jurisprudence, refraining from a constitutionally oriented interpretation of Article 420-bis of the Code of Criminal Procedure and from a fair balancing of the values involved, incurring an irreconcilable logical contradiction and denying any procedural relevance to the acknowledged knowledge, in the case at hand, of the existence of criminal proceedings against them by the defendants, to be framed as "pretend unawares."
A correct interpretation of the aforementioned rule should, instead, have proceeded from the recognition of autonomous relevance to the last hypothesis of its paragraph 2 with respect to the hypothesis of the certainty of the knowledge of the proceedings, in line with its real legal nature represented by being "the voluntary evasion of the knowledge of the proceedings" a 'santi-abusive' clause, of constitutional inspiration (art. 111 Const.) and of supranational derivation, aimed at preventing a distorted use by the defendant of his right to have notice of the proceedings and in particular that a person, having had "notice, by the most diverse means, of the pendency of criminal proceedings, against him for serious facts," could "evade the jurisdiction, the punitive power of the State."
In light of these considerations, and in the presence of the requirements for defining the act as abnormal, affirmed by the United Sections (Sect. U, No. 25957, 2009, Toni), there would have been, on the part of the Assize Court, "the exercise of a power provided for by the system, but used outside the area that identifies its function and in a procedural situation radically different from that configured by law."
6.4 Having framed the legal nature of the indicated provision, it was necessary to elaborate on the content of the conduct of subtraction, to be understood, also in light of Art. 12 prelegislation, as omissive conduct with respect to a due act, based on the "very general principle of the submission of all citizens to the jurisdiction," and more generally on the "principles of general doctrine according to which the subjective right - in this case to the knowledge of acts through the system of notification of the same - reaches as far as the sphere of action of solidarity begins, not falling within the content of the subjective right the acts that do not respond to fairness and solidarity."
In this context, according to the plaintiff, the defendants, as individuals qualified by being Judicial Police officers and, therefore, experts in the procedural mechanisms, could have taken action to make themselves present at the trial against them, having had notice of its existence, even in the absence of cooperation from the Egyptian authorities and, therefore, of a formal notification of an invitation to elect domicile, determining autonomously and alternatively to the performance of specific activities, such as "appointing a trusted defense counsel (practicing before the Italian jurisdiction), with concomitant election of domicile through one of the numerous international firms existing in n (Omissis); filing with the Italian Consulate in Egypt an election of domicile and an appointment of counsel; sending a registered letter or telegram, with a notarized signature, to appoint counsel and/or elect an address for service; applying for a visa at the Italian Embassy to come to Italy and participate in the trial; asking the Italian Consul in Egypt to collect one's election of domicile pursuant to Art. 37 of the Consular Law."
6.5. In conclusion, the appellant prosecutor noted that the Rome Assize Court, while it had acknowledged, in fact, that from the trial documents emerged "presumptive data from which (... ) infer with reasonable certainty that the defendants were aware of the existence of criminal proceedings against them concerning serious crimes against the researcher Giulio Regeni," it had incurred, in law, at least four logical-legal errors: "having elevated the right to service of documents to a tyrant right, relying on a single, long-standing pronouncement of the EDU Court; the inherent contradiction of the interpretation; the failure to identify the exact legal nature of the provision; and the failure to respect the semantic meaning of the expressions of the rule." had come to the erroneous conclusion that, in the light of the constitutional and conventional framework, the defendants had to be reached by an "official act" giving certain proof of their knowledge of the pendency of a trial against them and of the vocatio in iudicium with reference to the specific charges against them, contrary to recent arrests of the United Sections, had misinterpreted, as to the legal nature and as to the conditions of applicability, the last part of Art. 420-bis c.p.p., clear in stating that "the judge shall also proceed in the absence of the defendant who (...) has voluntarily withdrawn from knowledge of the proceedings or acts thereof."
As a result of said misinterpretation of the criminal law by the Assize Court, the Gup, bound to it under Article 28 of the Code of Criminal Procedure, had put in place, by suspending the proceedings under Article 420-quater of the Code of Criminal Procedure, an abnormal act, productive of the stasis of the proceedings.
7. Assigned the appeal to the First Criminal Section and set for its handling today's chamber hearing pursuant to Article 611 of the Code of Criminal Procedure, the parties were duly notified.
8. The Deputy Public Prosecutor filed a written indictment, bearing the date of June 27, 2022, in which, made extensive references to the contested order dated April 11, 2022, to the procedural process in which the same was inserted and in particular to the memorandum filed by the Public Prosecutor with its attachments at the hearing of October 14, 2021, to the appeal of the Public Prosecutor at the Court of Rome and to the deductions and censures made, which he specifically retraced and agreed with, pointed out the existence of the denounced abnormality of the suspension order, derived from that of the Court of Assizes of October 14, 2021, which was an indefectible prerequisite of the former on the logical and legal level, and of the conditions for the applicability of Art. 420-bis, paragraph 2, last part, Code of Criminal Procedure, on the relief of the defendants' voluntary evasion of knowledge of the proceedings.
He represented in this regard that:
- there was evidence, evincible from the elements acquired in the record, of the evasive conduct engaged in by the defendants, who were fully aware of the trial against them and the date and place of the first hearing due to the multiple and close contacts they and, before that, the Egyptian state had had with the procedural process, with the consequent irrelevance, for the purposes of the proceeding, of the "inability of the system to reach the defendants directly for objective and incontrovertible reasons."
- the suspension order had resulted in an unremediable stasis of the trial, which harmed the efficiency of the system and made it impossible to prosecute the very serious crimes committed abroad against H.H., an Italian citizen;
- also of relevance, for the purposes of assessing the abnormality of the contested measure and the underlying acts, was the injury resulting from the victim's reasons and the purposes of social defense underlying the trial, in a situation in which the defendants' State of nationality had concretely endeavored, in violation of the New York Convention of December 10, 1984, to allow them to remain outside the trial and thus guarantee them impunity;
- the suspension of the trial stood in direct relation to the order of the Assize Court declaring the declaration of absence and the decree ordering the trial to be null and void, issued by the Preliminary Hearing Judge on May 25, 2021.
He noted in conclusion that:
- the conditions were met for granting the appeal brought by the Public Prosecutor and for the consequent annulment without referral of both the suspension order issued by the Gup on April 11, 2022 and the prerequisite order issued by the Assize Court on October 14, 2021, with transmission of the acts to the Assize Court for further course;
- it was necessary, should this conclusion be disagreed with, to refer the appeal to the United Sections for the resolution of the contrast of jurisprudence that had arisen between the Simple Sections, and highlighted in the appeal, regarding the abnormality of the order of suspension of the trial, adopted pursuant to Article 420-quater of the Code of Criminal Procedure;
- the relevance and not manifest groundlessness of the question of constitutionality of Articles 420-bis, paragraph 2, last sentence, and 420-quater of the Code of Criminal Procedure, were prospective, in a further graduated manner, insofar as, the second article, provided for the suspension of the trial, even in the case of non-reversible impossibility of serving the notice of the hearing on the defendant, who had nevertheless acquired knowledge of the proceedings or had voluntarily evaded knowledge of the proceedings or acts thereof pursuant to Article 420-bis, paragraph II, last sentence of the Code of Criminal Procedure, resulting in a situation of procedural paralysis for an indefinite period of time;
- the question of constitutionality concerned the compatibility of the aforementioned provisions with Articles 3, 111 and 117 of the Constitution, but it also and preliminarily involved the interpretation of Article 6 of the EDU Convention, as a parameter in the application of Article 420-bis c.p.p, as to the required certain knowledge of the proceedings in the head of the defendant, informed in an appropriate time of the trial and of the consequences of failure to appear, when the same had in any case acquired knowledge of the proceedings or had voluntarily withdrawn from knowledge of them or of their acts, also in relation to Directive 2012/29/EU of the European Parliament and of the Council of October 25, 2012 on the rights, assistance and protection of victims of crime.
9. Civil parties F.F. and E.E., Giulio Regeni's parents, filed a defense brief through their defense counsel and special prosecutor, in which, agreeing with and adopting the reasons put forward by the appellant Public Prosecutor's Office on the basis of the objection of abnormality of the contested measure and of the prerequisite measure of the Court of Assizes, they deduced the nullity of the contested order, declaring the suspension of the trial, and of all the prerequisite acts, due to the incurring erroneous interpretation, as to the legal nature and the prerequisites of applicability, of Art. 420-bis, paragraph 2, last hypothesis, of the Code of Criminal Procedure.
10. The Presidency of the Council of Ministers filed a memorandum through the State Attorney's Office, recalling the deductions, observations and arguments made in the statement of constitution of civil plaintiff, and associating itself with the defenses and requests made by the Public Prosecutor's Office.
11. The public defenders of the defendants A.A., B.B., C.C. and D.D. filed separate pleadings, in which, on the basis of concurring arguments and findings, traced back to the non-abnormality of the order of the Gup that had ordered the suspension of the trial and the correctness of the order issued by the Assize Court in compliance with national and supranational norms and jurisprudence, requested that the Public Prosecutor's appeal be declared inadmissible, or in the alternative, or in any case, rejected.
Reasons for the decision
1. The appeal is inadmissible because it is brought against a measure that cannot be appealed.
2. The preliminary question induced by the appeal of the Public Prosecutor at the Court of Rome relates to the appealability with cassation appeal of the order issued on April 11, 2022 by the Gup of the same Court, pursuant to Article 420-quater, paragraph 2, of the Code of Criminal Procedure, and the measures presupposed therein.
The appellant, expressly correlating the premise of his procedural choice to the deemed abnormality of the measure, remarked that, to that effect, the cassation appeal is the only remedy available to challenge the order, which is otherwise not susceptible to autonomous and typical appeal.
2.1. Contrary to the appellant prosecutor's assumptions, the contested order is not affected by abnormality. On the contrary, it - like the order of the Court of Assizes of Rome dated October 14, 2021, which declared null and void the previous declaration of absence, and the decree ordering the trial adopted against the defendants at the preliminary hearing of May 25, 2021 - should be exempt from any legitimacy relief, for being in accordance with law the ascertainment of the justifying conditions of the ordered suspension of the trial.
2.2. It is worth preliminarily recalling the shared regulae iuris, the result of a long jurisprudential elaboration of the United Sections (most recently, Sez. U, no. 10728 of 16/12/2021, dep. 2022, Fenucci, Rv. 282807, and previous arrests referred to therein), which clarified and progressively refined the characteristics of the category, which has remained untyped, of "abnormality," introduced and maintained for the need to legitimize the immediate cassation appeal under Article 111 Const, derogating from the rule of the taxability of the means of appeal, in order to remove the effects, not otherwise eliminable, of procedural acts from time to time ascertained and appreciated, affected by anomalies so radical or singular in structural terms as to be extraneous to the organic system of procedural law, or such as to determine on the functional level, even without being extraneous to the regulatory system, the stasis of the trial and the impossibility of continuing it.
The indicated operation of normative integration, which depended on a precise choice of the legislator, which can also be deduced from the "Report to the preliminary draft of the new Code of Criminal Procedure," not to give - in the face of the "significant difficulty of a possible typification" - a legislative definition of abnormal measures, nor to provide expressly for their appeal, has resulted, in the jurisprudence of legitimacy required for this purpose, in the identification and delimitation of the distinctive elements of abnormal acts, enhancing their character of exceptionality and residuality, evoking the value of the prejudicial effects resulting from them for the subjective positions of the parties and highlighting the need for their restrictive interpretation so as not to circumvent the preclusion related to the principle of taxability of nullity, established by Art. 177 c.p.p., and to the typicality of the means of appeal, according to the provisions of Articles 568 and 586 of the Code of Criminal Procedure.
2.3 Well, the ordinance under review appears to be immune from any anomaly and especially from those that perimeter the aforementioned category of abnormality, by reason of the radical deviation from the power attributed to the judge or from the legal model of the measure - and insusceptible of determining an irreversible stasis of the proceedings.
The starting point of the analysis is the appreciation of the wording of Article 420-bis of the Code of Criminal Procedure - in the text in force following Law April 28, 2014, no. 67, which introduced the trial in absence - and specifically of its paragraph 2, which, after the affirmation in paragraph 1 of the general principle, according to which the judge proceeds in the absence of the defendant, whether free or detained, who is not present at the hearing or who has renounced, although not prevented, to attend it, is thus, in its entirety, formulated: "Except as provided in Article 420-ter (ed. : which concerns the defendant's or the defense counsel's impediment to appear), the judge shall also proceed in the absence of the defendant who in the course of the proceedings has declared or elected domicile or has been arrested, detained or subjected to a precautionary measure or has appointed a defense counsel, as well as in the case in which the absent defendant has personally received the service of the notice of the hearing or it is otherwise certain that he or she is aware of the proceedings or has voluntarily withdrawn from knowledge of the proceedings or acts thereof."
The correspondence of the conditions for proceeding in absentia even when the defendant has not been personally served with the judgment, indicated in said provision, to a situation of full personal knowledge (or proven refusal) of the arraignment and the trial expresses a load-bearing rule of the reform set forth in the aforementioned Law No. 67 of 2014.
Indeed, the law, in continuity with the progressive introduction in the criminal trial system of rules of greater effectiveness of participation in the trial under the decisive thrust of decisions of the EDU Court (Somogyi v. Italy of May 18, 2004; Sejdovic v. Italy of November 10, 2004; Cat Berro v. Italy of November 25, 2008), definitively overcame the procedure in absentia -based on the mere appreciation of the formal regularity of notifications-by providing for a linear model on the general level, according to which the judge proceeds only if it appears to him with certainty that the defendant did not appear at the hearing of his own free choice, knowing the content of the charges, the date and place of the trial, or the will of the defendant himself to evade knowledge of the proceedings or its acts.
2.4. The assumption that the judge proceeds having certainty that the defendant is aware of the charges and vocatio in iudicium, on which Article 420-bis of the Code of Criminal Procedure is based, finds systematic confirmation in several provisions of the Code of Procedure.
Firstly, Article 420-quater, paragraph 1, of the Code of Criminal Procedure, "Suspension of the trial due to the absence of the defendant," provides that, if the cases provided for in Article 420-bis of the Code of Criminal Procedure do not occur, "(...) if the defendant is not present, the judge shall adjourn the hearing and order that the notice be served on the defendant personally by the judicial police."
But other provisions also rely on the same premise in providing rules regarding non-attendance and restoration of initial conditions, namely:
- Paragraph 4 of the same Article 420-bis of the Code of Criminal Procedure, which, with regard to the possible subsequent appearance of the defendant, provides for the case of his conscious choice and the case in which he provides "proof that the absence was due to an unconscionable unawareness of the celebration of the trial" or to the "absolute impossibility of appearing due to a fortuitous event, force majeure or other legitimate impediment," and recognizes him the possibility of making preliminary requests and requesting the renewal of evidence already taken;
- Article 489, paragraph 2, of the Code of Criminal Procedure, which provides for the remittance in time to make requests for alternative rites of the defendant, who provides proof that "the absence during the preliminary hearing is attributable to the situations provided for in Article 420-bis, paragraph 4."
- Article 604, paragraph 5-bis, of the Code of Criminal Procedure, inserted by the same Law No. 67 of 2014, which, for the appeals stage, provides that the first instance judgment is annulled with referral of the acts back to the judge of first instance, "if there is evidence that it should have been provided under Article 420-ter or Article 420-quater" and "in the event that the defendant proves that the absence was due to an innocent lack of knowledge of the holding of the first instance trial."
- Article 629-bis of the Code of Criminal Procedure, inserted by Law No. 103 of June 23, 2017, which, confirming for what is of interest here, the institution of rescission already provided by the repealed Article 625-ter c.p.p. (also inserted by the aforementioned Law No. 67 of 2014), provides that the convicted person, in whose absence proceedings have been conducted for the entire duration of the trial, "may obtain the rescission of the judgment if he proves that the absence was due to an innocent lack of knowledge of the celebration of the trial," with transmission of the acts, if the request is granted, to the judge of first instance.
The outlined legal framework accounts for the peculiar significance of paragraph 2 of Article 420-quater of the Code of Criminal Procedure, according to which, "when service pursuant to paragraph 1 is not possible (...), the judge shall order the suspension of the trial with respect to the absent defendant (...)," requiring, in the current system, the certainty of knowledge of the summons, in clear discontinuity from the trial in absentia, which valued above all the formal regularity of notifications and provided for the conduct of the trial in any case subject to remittance in terms, pursuant to Article 175, paragraph 2, c.p.p, with burden of proof of "non-knowledge" on the defendant to exercise only the right of appeal.
2.5. The issues related to the trial in absentia were recently examined by the United Sections (Sect. U, no. 23948 of 28/11/2019, dep. 2020, Ismail, Rv. 279420).
Through an articulate argumentative process that drew on normative sources and domestic and European jurisprudence, the United Sections first examined the normative evolution of the guarantees of the defendant's effective participation in the criminal trial; after retracing the reform referred to in Law No. 67 of 2014, they then analyzed the normative carrier provisions of the trial in absentia, of which they underlined normative rationale and differences in content in discontinuity with the previous one of the in absentia and the institutions that expressed it.
The United Sections, having made these premises, expressed themselves at length on the evaluation of the overall scope of the hypotheses referred to in Article 420-bis of the Code of Criminal Procedure and, considering the overall context of the provision, noted that, in addition to the hypothesis in which there has been personal notification to the defendant of the vocatio in ius:
- "art. 420-bis, paragraph 2, c.p.p. indicates the cases in which, on the assumption of course of the regularity of the notifications, the judge at the stage of the constitution of the parties, having verified the notices, can proceed to trial considering that there is "voluntary" absence."
- "the foundation of the system is that the party is personally informed of the content of the charge and the day and place of the hearing and, therefore, (...), the trial in absence is permissible only when the certainty of knowledge on the part of the defendant is achieved."
- Article 420-quater of the Code of Criminal Procedure provides that when the judge has not reached the certainty of knowledge of the arraignment by the defendant, he must order service "personally by the judicial police."
- "article 420-bis, paragraph 2, c.p.p. (... ), has typified cases in which, for the purposes of certainty of knowledge of the vocatio in ius, a notification that has not been made at the defendant's own hands may be valued," so that, without being able to invoke any presumption of knowledge of the trial, "having elected domicile, having been subjected to a precautionary measure , having appointed a defense counsel, are situations that allow regular but not personal service to be equated with actual knowledge of the trial," since under the indicated conditions "it is reasonable to assume that the defendant has actually known the document regularly served in the given manner."
- "no effect, on the other hand, will follow from an impossibility of regular service: (...); being untraceable will not allow the albeit valid notification under Article 161, paragraph 4, Code of Criminal Procedure to prevail over the substantive fact of non-knowledge; having appointed a trusted defense counsel who then waived the mandate or who was revoked likewise will not allow the proceeding without certainty of knowledge."
The United Sections then pointed out punctually that Article 420-bis, paragraph 2, of the Code of Criminal Procedure, "for the defense against the 'fake unawares,' valorizes, as the only hypothesis in which one can proceed even if the party is unaware of the vocatio in ius, the 'voluntary evasion of knowledge of the proceedings or of acts of the proceedings.'" They pointed out in this regard that "evidently, this must be positive conduct, with respect to which an ascertainment of fact is necessary, including as to the psychological coefficient of the conduct," without the indicated provision "typifying" or allowing for the typification of any particular conduct; so that "common situations such as unavailability, elected domicile, etc., cannot automatically be made to fall within this scope. Certainly the manifest lack of informational diligence, the indication of a false domicile, even if apparently valid, and others, may be circumstances that can be assessed in concrete cases, but they cannot be determinant in themselves, on a merely abstract level, to be able to affirm the recurrence of 'willful abduction'." This is because "if one were to e Sas pera the concept of 'lack of diligence' to the point of automatically transforming it into an overt willfulness to avoid knowledge of the acts, deeming it sufficient to dispense with proof of awareness of the vocatio in ius in order to proceed in absence, one would be making a mere name-change operation and reverting to the old presumptions, which is obviously an operation that is not permitted."
2.6. Said shared argumentative junctures, significant and exhaustive in the coordinated literal and systematic reading and interpretation of the normative text, stand in direct continuity with the decisions of the EDU Court that have concerned the Italian legal system and to which, decisive in the normative evolution of progressive adaptation to the principles of due process, the United Sections have made punctual references.
The relevance of the evaluations expressed is given by the peculiar function of nomofilachy performed by the United Sections, which is entrusted with overcoming the contrasts that have arisen in the jurisprudence of legitimacy and establishing the principles of law for the correct scope and reading of the reference legislation with respect to similar or analogous cases, even intervening ex officio, regardless of the initiative of a party.
It remains clear that the principle of law enunciated by the United Sections binds subsequent judicial interpretation, given the joint requirements of legal certainty and regulation and stabilization of jurisprudence on issues involving constitutional and conventional principles and domestic and supranational regulatory sources.
Nor are any arguments with particular demonstrative value set forth in the appeal that could justify a revisiting, in any respect, of the arrest of United Sections Ismail, since, on the contrary, a critical and reasoned comparison with the contents of the judgment and the reasons underlying them, which were in fact ignored, was lacking.
2.7. The order of the GUP of the Court of Rome under appeal and the oft-quoted order of the Court of Assizes of Rome dated October 14, 2021, punctually referred to in the contested order, have made good use of the teachings of the United Sections.
Indeed, they correctly ruled out that, as a basis for the defendants' alleged actual knowledge of the content of the indictment and of the vocatio in iudicium, the elements valorized by the appellant Public Prosecutor in the course of the proceedings, and still before this Court, can be adduced.
Immune from logical or legal flaws must, in fact, be considered to be the assessment, justified in a very broad and articulate manner by the Assize Court, according to which the subjective qualifications of the defendants within the Egyptian police forces or security apparatuses, the participation of some of them in the Egyptian team in charge of cooperating with the Italian investigators in the Giulio Regeni case, the fact that some of them were heard there as persons informed of the facts about the investigations carried out in (Omissis), and the media relevance, including international, of the Italian trial are not conclusive in order to consider that the certainty of the defendants' knowledge of the trial against them has been reached.
Correct, congruous and devoid of illogical profiles appears in this regard the motivation of said measures where, among other things, it indicates that the first elements are prior to the exercise of the prosecution in Italy against the defendants and considers conjectural and based on unproven presumptions the opposing assessments of the Public Prosecutor about a necessary and generalized information osmosis within the Egyptian security services, or with regard to the necessary knowledge that the same defendants would in any case have drawn from the international media, particularly those in English or Arabic, about the precise cadences of the trial established in Italy against them.
Specularly, it cannot in any way be held that the certain knowledge of the charges and of the vocatio in iudicium can be attached to those same factual data, which the May 25, 2021 order of the Gup of Rome had placed as the basis for the defendants' declared absence for the purposes of their indictment.
The analysis carried out, correctly framed in the normative framework, both domestic and conventional, relating to proceedings in absence, is entirely consistent with the illustrated principles established by the United Sections Ismail, precisely interpreted and applied, and the reading of which was not the subject in the appeal of argued criticism, leaning, instead, on the reference made in the order to the judgment of the EDU Court Sejdovic v. Italy, held in the appeal to be dated, referring to the discipline of contumacy and expressive of a "tyrant right" of the defendant.
It is not taken into account, in the developed censures, that the ordinance and before that the United Sections referred to the indicated decision as the premise of the approaches of the subsequent jurisprudence of legitimacy and above all for the express conditioning of the further normative evolution, with the affirmed existence of an "obligation , deriving from the Convention, to proceed only against those who have actual knowledge of the trial," and not a vague and unofficial knowledge, and of an "obligation to provide for a restorative mechanism consisting in assuring the person judged in absentia a new degree of merit jurisdiction."
2.8. The same can be said as to the Vvoluntary evasion of knowledge of the proceedings or acts thereof" predicated by the appellant Public Prosecutor.
Moving, indeed, from the correct premise that, in its last part, paragraph 2 of Art. 420-bis enhances, for the defense against the "unaware pretenders," the voluntary evasion as the only hypothesis in which one can proceed, despite the party's ignorance about its vocatio in iudicium, the appellant does not consider that the United Sections, with an interpretation attentive to the protection of the effectiveness of the adversarial process and the defendant's right to personal participation in the trial, have established specific hermeneutic coordinates, consistent with the spirit of reform, aimed at overcoming the system of legal presumptions and preventing "situations that, in terms of automaticity, may represent cases of 'voluntary evasion' from the knowledge of the trial."
In this shared perspective, the ruling of the United Sections Ismail has punctually remarked (p. 28 et seq.) that we must deal in evidence with positive conduct, with respect to which a factual ascertainment is necessary, including with respect to the relevant psychological coefficient. On the other hand, the appeal evokes, as anti-doings, merely omissive conducts - such as the failure to elect domicile before the Italian judicial authority, the failure to appoint a trusted defense counsel, etc. - as anti-doings. - which, while they themselves presuppose actual knowledge of the trial on the part of the defendants, turning out in any case to be anything but dutiful, are by their very nature outside the perimeter of relevance drawn by the United Sections for the purposes of recognizing the existence of "voluntary evasion."
Hence, the verbatim words of the Ismail ruling can apply directly to the arguments of the appellant prosecutor, in the sense that "if one exaggerates the concept of 'lack of diligence' to the point of automatically transforming it into a blatant will to avoid knowledge of the acts, deeming it sufficient to dispense with proof of awareness of the vocatio in ius in order to proceed in absence, one would be making a mere name-changing operation and returning to the old presumptions, which is obviously an operation that is not permitted."
3. The contested order does not show the distinctive features of the abnormal act even when appreciated on the functional level, as it does not result in an irreversible stagnation of the trial and the impossibility of continuing it.
3.1. The order, yes as summarized under 5 of the "found in fact," ordered a stay of the trial, pursuant to Article 420-quater, paragraph 2, Code of Criminal Procedure, after noting: that the defendants had remained in a state of unavailability because they could not be traced for the personal service of the notice of the preliminary hearing; the simultaneous postponement of the proceedings to the hearing in continuation of October 10, 2022, with a hearing at said hearing of the Head of the Department for Justice Affairs - Directorate General of International Affairs and Judicial Cooperation on the results of the clarifications requested from the Attorney General's Office of the Arab Republic of Egypt by said Department; the conduct of new searches for the defendants, by means of the R. O.S. Carabinieri-Anti-Terrorism Department 4 section; the execution, if necessary, also of the notification of the indicated acts against the defendants at their places of residence or abode abroad (in (Omissis)).
With the said order, which the appellant generically claims to have incurred a violation of the law, the judge certainly exercised his power, which is his due because it is expressly recognized by the aforementioned Article 420-quater of the Code of Criminal Procedure, to suspend the trial if the relevant conditions are met, which he accounted for by fully recalling the sources of knowledge acquired in the records.
The order did not even result in the reported insuperable stasis of the proceedings, having rather ordered specific acts of procedural propulsion, inherent both to information activities on the results of the clarifications requested from the Attorney General's Office of the Arab Republic of (Omissis) by the Department of Justice Affairs, and to the performance of new research, as well as the possible notification to the defendants of the necessary notices, so much so that the public defender of B. B. noted that the order, which did not suspend by its content "in substance" the preliminary hearing, should be considered "only formally a suspension order."
Nor did the judge prescribe from confronting the Egyptian judicial authority's refusal at the state of affairs to cooperate with the Italian one, also pronouncing on the arguments, reasonably appreciated as specious, expressed by the Attorney General of the Arab Republic of Egypt in the December 26, 2020 Memorandum on the "disappearance and death of the Italian victim, Giulio Regeni," and concluding, consistent with its own jurisdictional prerogatives that are exercised in the activity of interpreting and applying norms and evaluating evidence, that the aforementioned refusal could not be overcome by an impermissible judicial shortcut, only by rejecting the indicated arguments.
It also does not in any way support the qualification of the order as abnormal by the assertion that an "unjustified sine die suspension of the trial" and an otherwise irremediable prejudice to the subjective situations of the parties, translated into the injury of the right of the constituting civil parties, family members of the offended person and the Presidency of the Council of Ministers, to the celebration of the trial against the defendants, resulted from it.
Indeed, while the suspension is not unjustified, because it is justified in relation to the noted existence of the conditions that normatively determine it, it is also not sine die in light of the procedural cadences provided for by the Code of Procedure precisely with a view to its possible revocation, indicated in the order with reasons.
3.2. Nor should it be neglected to note - with a value that, in the opinion of the College, does not appear secondary - that the right of the offended parties to the celebration of the trial is not expressed in the right to the conduct "of a trial," but in that, which is combined with the principles of the EDU Convention and the constitutional principles of due process and its reasonable duration, to the holding "of a trial" that, in application of the existing norms of positive law, consistently interpreted in line with shared regulae iuris, can take place, and reach its conclusion, without tending to be exposed to remedial interventions, in the ritual adversarial and in the orderly logical-chronological sequence of the procedural moments that compose it.
These considerations do not disregard the deductions of civil parties F.F. and E.E., who evoked in their written pleadings the prejudice produced by the contested measure to rights guaranteed in their favor by the procedural obligation of states to guarantee the right to life and the prohibition of torture deriving from the combined provisions of Articles 1, 2 and 3 of the EDU Convention, as well as from Directive 2012/29/EU of the European Parliament and of the Council of October 25, 2012, establishing minimum standards on the rights, assistance and protection of victims of crime, transposed by Italy with D. Lgs. No. 212 of 2015, which also provides for the crime victim, understood not only as a direct victim but also as a family member of a person whose death was directly caused by a crime (Art. 2(1)(a)(il)), the right to participate in criminal proceedings and the consequent right to obtain, from them, fact-finding and compensatory adjudications.
Nor does the college disregard the aforementioned decisions of the EDU Court, which have stated that, "where allegations of serious human rights violations are involved in investigations, the right to the truth about the relevant circumstances of the case belongs not only to the victim of the crime and his or her family, but also to other victims of similar violations and to the public at large, who have the right to know what happened. Appropriate response by authorities in investigating complaints of gross human rights violations can generally be considered essential to maintain public confidence in their adherence to the rule of law and to prevent any appearance of impunity, collusion or tolerance of wrongdoing. For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to ensure accountability both in practice and in theory" (EDU Court, in Abu Zubaydah v. Lithuania, May 31, 2018, p. 610, and Al Nashiri v. Romania, May 31, 2018, p. 641), and those more directly relevant to the crime of torture and the need for the investigation to lead to the identification and punishment of the perpetrators in order to avoid the practical ineffectiveness of the mandatory ban on torture and inhuman or degrading treatment or punishment and the impunity of the perpetrators (among others, Saba v. Italy, July 1, 2014, p. 76; Alberti v. Italy, June 24, 2014, p. 62; Dembele v. Switzerland, Sept. 24, 2013, p. 62).
It must, however, be reiterated that it is precisely the requirements represented that demonstrate the correctness of what has been found, since the prosecution of criminal conduct, even if heinous and ignominious such as that charged, must pass, in a rule of law, through compliance with the rules of due process regulated by law, which takes place in full and effective adversarial debate between the parties.
4. The foregoing thus makes it possible to exclude that in the case at hand the alleged abnormality of the contested order and of the measures that constitute its prerequisite can be hypothesized, and in any case deemed to exist, which are therefore insusceptible of appeal.
5. The importance that first the Appellant Public Prosecutor and then the Attorney General's Office have attributed to the presence of two contrasting orientations of the jurisprudence of legitimacy on the subject of the configurability in the abstract of the abnormality of the order of suspension of proceedings pursuant to Article 420-quater of the Code of Criminal Procedure is absorbed in this.
This is, in fact, an issue that is overcome in the case before us by the recognized non-existence of any abnormality of such a measure. Therefore, even applying the orientation shared by the appellant prosecutor to the case at hand, no different conclusion would be reached. This makes the issue irrelevant in the case at hand and therefore precludes its referral to the United Sections.
6. The issue affecting cooperation between states and the unjustified lack of cooperation of the Egyptian judicial authority, which is the backdrop to the censures carried out, is extraneous, as mentioned above, to the exercise of judicial activity that is carried out by correctly applying positive law, on the basis of an interpretation that is in accordance with law and binding, such as that expressed by the Italian Court of Cassation in its highest formation.
The overcoming of the represented situation, impeding the participation of the defendants in the trial, for the conduct of which the Italian jurisdiction subsists, obliged to apply without tearing the normative fabric, guaranteeing and respecting the rights of all the trial parties according to the interpretative coordinates delivered, on the subject of trial in absence, by the United Sections, belongs to the competent Governmental Authorities, also in light of the obligations of assistance and cooperation for the same arising from international Conventions, and, among these more specifically, from the one against torture and other cruel, inhuman or degrading treatment or punishment, concluded in New York on December 10, 1984, ratified by Italy by law of November 3, 1988, no. 498, and by (Omissis) on January 25, 1986.
7. Finally, for the sake of completeness, it should be noted that, in light of what has been said so far, the doubt of constitutionality proposed by the Requisitioning Attorney General with reference to Articles 420-bis, paragraph 2, last sentence, and 420-quater of the Code of Criminal Procedure (with respect to Articles 3, 111 and 117 of the Constitution, in relation to Article 6 of the ECHR Convention and Directive 2012/29/EU of the European Parliament and of the Council of October 25, 2012 on the rights, assistance and protection of victims of crime), insofar as Article 420-quater c.p.p. provides for the suspension of the trial, it is argued, even in the case of a non-reversible impossibility of serving the notice of the hearing on the defendant, who has nevertheless acquired knowledge of the proceedings or has voluntarily evaded knowledge of the proceedings or acts thereof pursuant to Article 420-bis, paragraph 2, last sentence, c.p.p, resulting in a situation of procedural paralysis for an indefinite period of time.
Indeed, the issue, on the one hand, presupposes that the defendants have in any case acquired knowledge of the proceedings or have evaded knowledge of the same proceedings or its acts, a fact excluded in the present case. On the other hand, it tends to provoke the overcoming of the current system, which is the result of long and progressive normative elaboration and consolidated jurisprudential interpretation, including at the European level, matured precisely in order to make it conform to conventional and constitutional requirements.
In so doing, it prefigures the judicial overcoming of an alleged "procedural paralysis," which, in the present case, does not derive from the judicial measures examined but from factors external to the trial.
8. The appeal for cassation brought by the Public Prosecutor at the Court of Rome must, consequently, be declared inadmissible.
Declares the appeal inadmissible.
Thus decided in Rome, July 15, 2022.
Filed in the Registry on February 9, 2023.