A foreign criminal judgement cannot be enforced in Italy by simultaneously applying two different disciplines, originating from different national legal systems, juxtaposing disciplines favourable to one or the other State.
SUPREME COURT OF CASSATION
FIRST CRIMINAL SECTION
(date of hearing 17/11/2010) 14/12/2010, n. 43959
sentence
on the appeal proposed by:
1) L.T. N. IL (OMISSIS);
against order no. 2239/2009 TRIB. SORVEGLIANZA of ROME, dated 30/09/2009;
having heard the report made by the Councillor Dr FRANCESCO MARIA SILVIO BONITO;
having read the conclusions of the PG Dr Tindari Baglione who asked for the appeal to be declared inadmissible.
The Court observes:
Conduct of the proceedings - Reasons for the decision
1. L.T. was arrested on (OMISSIS) at Sydney airport while transporting a large quantity of narcotics and was sentenced by an Australian court on 24 September 2004 to ten years imprisonment starting from the date of arrest; The same court granted the prisoner the penitentiary benefit of parole for a period of three years and eight months after six years and four months of imprisonment.
After spending an initial period of detention in Australia, L. requested and obtained permission to serve his sentence in his own country, subject to the recognition of the Australian sentence by the Italian judicial authorities in accordance with the Strasbourg Convention. In Italy, L. was entitled to early release under Article 54 of the Penal Code for all ten semesters served in prison.
The prisoner therefore asked to be able to benefit from early release, in the forms established by the foreign judge, that is to say by the sentencing State, or according to art. 176 of the penal code and the Supervisory Court of Rome, with an order dated 30.9.2009, rejected this request on the grounds that: a) the prisoner had not yet served the part of the sentence set by the Australian judge, since the part not actually served and subject to early release cannot be counted for this purpose and b) that, pursuant to art. 176 of the Penal Code, the legal requirements for its concession were not met, in that a complete recovery programme had not been completed and the civil obligations arising from the offence had not been fulfilled.
2. The appellant objects to this reasoning, with an appeal to the Court of Cassation drawn up by his trusted defence lawyer, illustrating a single and articulated reason for complaint.
In particular, the appellant's defence denounces lack of motivation and violation of Law no. 334 of 1988, articles 10 and 11, ratifying the Strasbourg Convention and art. 738 of the Italian Penal Code p., on the point that the Court erroneously does not take into account, for the purposes of determining the sentence served, the period of early release, thus making the sanction imposed by the sentencing State more severe, and at the same time violating both the provisions of the Strasbourg Convention, which explicitly prohibits this in Articles 10 and 11, and Article 738 of the Code of Criminal Procedure, according to which the law of the State of enforcement is applied to the sentence served in Italy for a conviction handed down by the judicial authorities of another State.
2.1 The Public Prosecutor, in a reasoned written indictment, requested that the appeal be declared inadmissible.
3. The appeal is unfounded.
The appellant submitted two separate requests to the Supervisory Court, the first relating to the enforcement of the foreign judgement that sentenced him to ten years' imprisonment, two thirds of which to be served in prison and one third under a conditional release regime, and the second to obtain the benefits referred to in Article 176 of the Italian Penal Code.
Now, as for the first request, the territorial judge correctly considered that the period of imprisonment set by the Australian judge had not elapsed, since that judgment cannot be enforced by simultaneously applying two different disciplines, coming from different national legal systems, juxtaposing disciplines favourable to one and the other State.
With reference to the second request, there is adequate motivation to support the contested rejection, as the court observed that in this case the requirements for the prisoner to have fully repented, a necessary condition for the positive evaluation of his request, and for the fulfilment of civil obligations, have not been met.
The appellant's defence objects to this on the grounds of alleged violation of art. 738 c.p.p., in application of which, vice versa, the court has ruled correctly.
This rule, which the appellant defence counsel erroneously claims to be able to apply to the enforcement of the foreign judgement on it, recognising the effect of procedural institutions specific to our legal system, must be applied to the enforcement of the sentence in our country and to those institutions, such as parole, expressly governed by our legal system.
Apart from this, the Court observes that the appeal criticises only one of the reasons illustrated by the court in support of the rejection of the request proposed by the appellant, while nothing is observed regarding the motivation articulated by the court to support the lack of the assumptions of repentance and payment of the legal expenses necessary for the useful deliberation of his request.
4. The appeal must therefore be declared inadmissible due to its generic nature. The declaration of inadmissibility entails both an order to pay the costs of the proceedings and an order to pay a sum to the Fine Collection Fund, a sum which is estimated to be fair at 1000.00 euros.
THEREFORE
The Court declares the appeal inadmissible and orders the appellant to pay the legal costs and the sum of 1000.00 euros to the fines fund.
Conclusion
So decided in Rome, on 17 November 2010.
Filed in the Chancery on 14 December 2010