The optional non-execution of the European arrest warrant due to a national criminal proceedings for the same facts in the state of execution cannot be validly opposed when the pre-trial detention order is issued in the context of proceedings concerning crimes falling within the competence of the European Public Prosecutor's Office (EPPO): in this case, in fact, the problems of inter-jurisdictional coordination relating to the pendency of criminal proceedings for the same facts at different judicial authorities of different member states of the European Union have already found a solution, albeit a provisional one, due to the assumption of coordination of investigations by the EPPO.
With the coordination of investigations by the EPPO, there is a consequent division of competences among the Member States and the possible exercise of the right of evocation in accordance with art. 27 of the Regulation, after consultation, if necessary, with the competent authorities of the Member State, or Member States, concerned: the exercise of this right has the further effect that the competent judicial authorities of the other Member States are obliged to transfer the file to the EPPO and to refrain from further investigative acts in relation to the same crime: a circumstance which, per se, excludes the possibility of incurring a violation of the ne bis in idem principle.
It must be considered that the coordination requirements underlying the provisions relating to the consultation mechanism set up by the above-mentioned Framework Decision 2009/948/JHA of 30 November 2009 on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings have already found, or are destined to find, a temporary point of equilibrium for the purposes of conducting investigations and subsequent decisions already within the prosecution body established at European level.
Only in the hypothesis in which a conflict arises between the EPPO and the national public prosecutor's office regarding the possible inclusion of the criminal conduct subject to the E.A.M. in the sphere of application of the competence of the European Public Prosecutor's office and its exercise in accordance with articles 22, 23 and 25, paragraphs 2 and 3, could the solution to the conflict be referred to art. 16 of Leg. February 2, 2021, no. 9, to the determinations of the General Prosecutor at the Court of Cassation, as the judicial authority identified as the one competent to decide, at the national level, on the conflict that may arise between the European Public Prosecutor's Office and one or more Public Prosecutors' Offices, in implementation of the provisions of art. 25, par. 6, of EU Regulation 2017/1939.
The European legislation establishing the EAW aims not only to solicit, but to achieve closer cooperation between the competent judicial authorities of the Member States, so as to "prevent situations in which the same person is the subject, in relation to the same facts, of parallel criminal proceedings in different Member States, which could give rise to a final decision in two or more Member States and thus constitute a violation of the ne bis in idern principle" [Article 1, paragraph 2, letter a), of Framework Decision 2009/948/JHA].
In turn, the notion of "parallel proceedings" is carved into the domestic legal system by art. 2, paragraph 1, lett. a), legislative decree cited, which defines them as "criminal proceedings, both at the stage of preliminary investigations and at the stages following prosecution, pending in two or more Member States for the same facts against the same person".
Court of Cassation
Sentence Sec. 2 criminal
No. 16561 Year 2022
President: RAGO GEPPINO
Rapporteur: PELLEGRINO ANDREA
Hearing date: 27/04/2022 - filing date 28/04/2022
on the appeal brought by
SP, born in ** on **/1990
represented and assisted by FSF, lawyer, and AG, attorney-at-law, in trust
against order no. 11/2021 dated 15/03/2022 of the Court of Appeal of Reggio Calabria;
having regard to the deeds, the contested order and the appeal;
having noted the defense's request for an oral hearing to be held in attendance pursuant to art. 23, paragraph 8, Law Decree no. 137/2020;
having read the statement of defense dated April 10, 2022 containing a new plea with a question of constitutional legitimacy;
having heard the report drawn up by Counselor Andrea Pellegrino;
having heard the indictment in which the Deputy Attorney General, Simone Perelli, requested that the appeal be rejected and that the question of constitutionality be declared manifestly unfounded;
having heard the discussion in which the defense attorneys, FSF and AG, requested that the appeal be accepted, referring to the grounds proposed.
1. With an order dated March 15, 2022, the Court of Appeal of Reggio Calabria, ruling on the annulment with reference by the Supreme Court of Cassation (sentence no. 46642/21 of December 17, 2021 of the Sixth Criminal Section), in execution of the M.A.E. issued on 13/10/2021 by the European Public Prosecutor's Office - Munich Center, related to the national arrest warrant issued by the Munich Amtsgericht on 29/09/2021 for the crimes of tax evasion and criminal conspiracy committed in Eichstat from 2017 to 2021, in connection with the issuance of a precautionary order with which custody in prison was ordered, ordered the surrender of SB to the judicial authority of Germany, with the condition that he be admitted to serve in Italy any sentence imposed as a result of the criminal trial in the requesting state.
2. An appeal has been lodged against this order on behalf of SP, the grounds for which are set out below within the strict limits of what is strictly necessary to substantiate the grounds pursuant to art. 173 of the Penal Code of Criminal Procedure.
2.1. The appellant complains:
-Infringement of art. 606, paragraph 1, lett. b) and c) of the code of criminal procedure with reference to law no. 69/2005 in relation to art. 18 bis lett. a) and b) of the same law, for having ordered the delivery of Sebastiano Pelle to the German judicial authority, in execution of a European arrest warrant, although concerning crimes committed partly in the territory of the Italian State (first ground).
Despite the fact that during the annulment phase the judges of legitimacy had deemed it necessary to ask the referring judge about the problem of judicial cooperation, in order to ensure not only the interest in the repression of crimes involving the territories of more than one State but also the interest in ensuring the principle of "ne bis in idem", the Court of Appeal of Reggio Calabria did not take good care of the indications provided. Indeed, with the order issued on October 27, 2021 by the Judge for Preliminary Investigations of the Court of Turin, all the prerequisites required to integrate the case of optional refusal have been met, namely the existence of criminal proceedings in progress in Italy on the matter covered by the EAW and against the same person. The warrant in question appears to have been issued by the German judicial authorities in connection with an investigation concerning a criminal association, headed by P, aimed at committing tax crimes in the motor vehicle trade and multiple tax offences. The criminal organization is alleged to have set up a number of companies in Italy, which it used to sell vehicles in Italy for VAT evasion; in addition, the Italian companies are alleged to have served as recipients of fictitious invoices issued by the German companies. Consequently, P, in conjunction with other parties, is alleged to have evaded VAT in Italy for a total of 7,156,743.18 euros and, in Germany, through the same conduct, for a total of 5,631,619.03 euros. The conflict cannot be resolved, as indicated by the territorial court, by making exclusive reference to the choice made by the European Public Prosecutor's Office to establish jurisdiction in one or other EU country, but must be resolved according to the forms and methods of the mechanism designed by Framework Decision 2009/948/JHA of November 30, 2009 on the prevention and resolution of conflicts of jurisdiction in criminal proceedings and Legislative Decree no. 29 of 2016. Legislative Decree No. 29 of 2016, also in order to avoid the initiation of unnecessary parallel proceedings, which could result in aviolation of the principle of ne bis in idem, enshrined in Article 50 of the Charter of Fundamental Rights of the European Union, as a fundamental guarantee directly applicable in the European legal space.
-Infringement of Article 606, paragraph 1, letters b) and c) of the code of criminal procedure with reference to Law no. 69/2005 in relation to Article 24 of the same law, for having ordered the delivery of PS to the German judicial authority, in execution of a European arrest warrant, failing to assess the request for suspension of the measure (second reason).
It criticizes the decision of the Reggio Calabria Court that disregarded the defence's request to suspend the execution of the measure pursuant to art. 24 Law 69/2005 pending the definition of the Italian proceedings, failing to assess the seriousness of the crimes charged and their date of commission, but also the status of the proceedings, the condition of restriction of freedom, the complexity of the charges and proceedings, the stage or degree of pendency, the possible definition with a final judgment and the size of the sentence to be served.
2.2. With the subsequent memorandum of 10/04/2022, the defence of the appellant has proposed as an additional reason a question of constitutional legitimacy of the discipline dictated by art. 18 bis Law 69/2005, which has transposed into Italian law art. 4 point 6 of the framework decision 2002/584/JHA on the subject of optional non-execution of the European arrest warrant for violation of articles 3, 117, paragraph 1, 26 Const, 14, paragraph 7 of the International Covenant on Human Rights made executive with the I. 881 of 1977, 50 of the Charter of Fundamental Rights of the European Union, in the part in which it is not provided that the request for surrender, when parallel proceedings for the same facts are pending in the issuing State and in the executing State, remains suspended until the settlement of the conflict resulting from the joint cognition of the judicial authority of several Member States.
CONSIDERATION IN LAW
1. The action is unfounded and, as such, unjustifiable.
2. The Court of Cassation, in the context of the annulment, having taken note of the new element constituted by the existence of criminal proceedings in Italy pending at the Public Prosecutor's Office of Turin where P, although not the subject of any precautionary measures, is under investigation for the crime of aggravated fraud continued in competition, asked the referring judge to assess - in its own free discretion as to whether or not to oppose the optional ground for refusal - whether the conduct ascribed to the appellant coincides with the conduct being prosecuted in Germany, since it involves tax fraud in the car trade carried out by the same companies operating in Italy and Germany.
3. The local Court, on referral, acknowledged that the charges are not completely superimposable, especially those regarding VAT evasion, which are not found in the Italian proceedings, and pointed out that these are transnational crimes in relation to which the European Public Prosecutor's Office has issued the M.A.E. The European Public Prosecutor's Office issued the M.A.E. on the basis of a precautionary order issued by the Munich judicial authorities, an eventuality that presupposes resolved coordination between the judicial authorities of the member countries and attribution of jurisdiction to the requesting judicial authority, without considering that the VAT evasion offences appear to be better considered and assessed as a whole with respect to the other offences for which the surrender was requested, ordered the surrender of SP to the German judicial authority, with the condition that he be allowed to serve in Italy any sentence imposed as a result of the criminal proceedings in the requesting state.
4. The appellant's objections regarding the assessment of the grounds for refusal under art. 18-bis lett. a) I. no. 69 of 2005 are unfounded.
It should be noted at the outset that, with regard to the European arrest warrant, the ground for optional refusal of surrender, provided by the aforementioned provision of law for crimes committed in whole or in part in the territory of the State, requires at least the existence of evidence of the actual willingness of the State to assert its jurisdiction over the fact object of the EAW.
The commission of the crime, in whole or in part, in the territory of the State requested for delivery is currently an optional and no longer mandatory ground for refusal pursuant to art. 18-bis, paragraph 1, lett. a), of Law no. 69 of April 22, 2005, as interpolated by art. 15 of Legislative Decree no. 10 of February 2, 2021, which transferred to it the original (mandatory) ground for refusal referred to in art. 18, lett. p), then amended by art. 18-bis, lett. b), law cited, following the regulatory intervention made with the law of October 4, 2019, no. 117: modification, this, intervened to promote a closer coordination in the action of repression of crimes at European level and, at the same time, in order to prevent and resolve conflicts of criminal jurisdiction between the Member States of the European Union, in the light of recital 9 of Framework Decision 2009/948/JHA of the Council of November 30, 2009, implemented in the domestic system with the d. Igs. February 15, 2016, no. 29.
4.1. The prerequisites for the configurability of this ground for refusal are identified by the jurisprudence of this Supreme Court, which, in this regard, has established the principle according to which such hostile condition must emerge with certainty from the acts (Sez. 6, no. 27825 of 30/06/2015, Ignat" Rv. 264055) and is recognizable when part of the conduct, even minimal, provided that it is preordained to the achievement of the criminal objective, has occurred in Italian territory (cf, Sez. 6, no. 40831 of 18/09/2018, P., Rv. 274121; Sez. 6, no. 5548 of 01/02/2018, Manco, Rv. 272198; Sez. 6, no. 13455 of 18/03/2014, Maligi, Rv. 261097).
The commission of the crime on Italian territory must be proven with certainty by reason of a factual framework that can be deduced in a way that cannot be disputed from the same elements offered by the issuing authority or from those provided at the time of integration pursuant to art. 16 of Law no. 69 of 2005 (Sect. 6, no. 45669 of December 29, 2010, Llanaj, Rv. 248973), since the mere hypothesis that the crime has taken place in whole or in part in the territory of the State is not sufficient for this purpose (Sect. 6, no. 17704 of April 18, 2014, Araujo Gomez, Rv. 259345).
It is necessary, in other words, that the deliberative examination in this regard carried out by the judges of merit allows to verify the existence of a "same criminal behavior" carried out by the "same person", even if only in part, in the territory of the State (Sec. 6, no. 2959 of 22/01/2020, Maravela, Rv. 278197). The segment of the criminal conduct for which the refusal to hand over can be validly opposed, must be understood in a "naturalistic" sense, as even a simple portion of conduct lacking the requirements of suitability and unequivocality required for the configurability of the attempt could be relevant in this sense (Sez. F, no. 34572 of 20/08/2008, Kaimovsy Saso, not mass.).
4.2. The obstructive condition based on the territoriality clause presupposes a subjective element of connection capable of founding the interest in the opposability of a reason for refusal characterized, on its objective side, by the realization, even only in one of its fragments, of the conduct in the territory of the State, therefore of any act of the criminal process, provided that the same is appreciable in such a way as to link the part of the conduct carried out in Italy to that committed in foreign territory (Sez. 6, no. 56953 of 21/09/2017, Guerini, Rv. 272220).
One is certainly outside the hostile condition in the hypotheses in which:
-other crimes have been committed on Italian territory, unrelated to the object of the euromandate, even if ascribable to the same type of crime (Sez. 6, no. 48946 of 04/12/2015, Certan Petru, not mass.);
-the conduct, considered as a whole (i.e. those committed in Italian territory and those in foreign territory), are in fact, from a naturalistic and ontological point of view, distinct and autonomous, beyond their partial overlap in type, causal or mode of realization;
-the conduct has been carried out exclusively abroad.
4.3. Without prejudice to the foregoing, the Court points out that the European legislation referred to aims not only to encourage, but to achieve closer cooperation between the competent judicial authorities of the Member States, so as to "prevent situations in which the same person is the subject, in relation to the same facts, of parallel criminal proceedings in different Member States, which could give rise to a final decision in two or more Member States and thus constitute a violation of the principle ne bis in idern" (Article 1, paragraph 2, letter a), of Framework Decision 2009/948/JHA).
In turn, the notion of "parallel proceedings" is carved into the domestic legal system by art. 2, paragraph 1, letter a), legislative decree cited, which defines them as "criminal proceedings, both at the stage of preliminary investigations and in the phases following the prosecution, pending in two or more Member States for the same facts against the same person".
Within this axiological perspective, it should be noted that the territorial Court correctly carried out the discretionary assessment of merit requested of it, having deemed the contested offences to be non-overlapping (before the Turin judicial authority, P is only under investigation for articles 110, 81, paragraphs 1 and 2, of the Criminal Code), 640, paragraphs 1 and 2, 62 bis of the Italian Penal Code): therefore, it is a matter of facts, also abstractly not coinciding, nor otherwise connectable with each other and, in any case, the assumption of the commission in the national territory of even a simple "fragment" included - from a naturalistic point of view and within the same criminal process - in the criminal conduct committed on German soil appears totally unproven (the irrelevance of the mere "hypothetical data" has already been mentioned).
4.4. Moreover, even if it were to be acknowledged that in the case in point, on Italian territory, at least part of the conduct for which we are specifically proceeding abroad took place, according to the description of the relative factual substratum of the crime hypothesis object of the request for surrender that was deemed to be offered in the order issued by the issuing State, the Court nevertheless holds that the refusal cannot be validly opposed, since the pre-trial order was issued in the context of proceedings concerning crimes under the jurisdiction of the European Public Prosecutor's Office (EPPO): in such a case, in fact, the problems of inter-jurisdictional coordination relating to the pendency of criminal proceedings for the same facts at various judicial authorities of different member states of the European Union, have already found a solution, albeit a provisional one, as a result of the assumption of the coordination of investigations by the EPPO (Sez. 6, no. 46641 of 17/12/2021, Parrinello, Rv. 282393).
5. The second reason is also unfounded.
Even if we want to disregard the lateness of the complaint, since it was not raised during the previous judgment, with the consequent extraneousness to the cognitive and deliberative perimeter of the referring judge, the Board points out how, with the coordination of investigations by the EPPO, the consequent division of competences among the member states occurs and the possible exercise of the right of call-back pursuant to art. 27 of the Regulation, after consultation, if necessary, with the competent authorities of the Member State, or Member States, concerned: the further effect of the exercise of this right is that the competent judicial authorities of the other Member States are obliged to transfer the file to the EPPO and to refrain from further investigations in relation to the same crime: a circumstance that, per se, excludes the possibility of incurring in the prohibition of ne bis in idem or that requests for suspension of the non-existent Italian precautionary measure against P (P, as seen - see page 6 of the judgment of annulment. page 6 of the sentence of annulment - he was not the recipient of any precautionary measure by the Turin judicial authorities).
In this case, in fact, it must be considered that the coordination requirements underlying the provisions relating to the consultation mechanism set up by the above-mentioned Framework Decision 2009/948/JHA of November 30, 2009 on prevention and settlement of conflicts of jurisdiction in criminal proceedings have already found, or are destined to find, a temporary point of equilibrium for the purposes of conducting investigations and subsequent decisions within the prosecution body set up at European level.
It should also be borne in mind that the jurisdiction exercised in the case in question by the European Public Prosecutor's Office is based on articles 22, paragraphs 1 and 2, 23, 120, paragraph 2, of the aforementioned Regulation, in conjunction with articles 2 and 3 of the Directive (EU) on mutual assistance in criminal matters. 2 and 3 of Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against fraud affecting the financial interests of the Union by means of criminal law: competence, this one, whose determination has not been the subject of specific censures by the applicant, resulting, at the moment, consistent with the reference to VAT fraud crimes and their realization in transnational form, by an organized group and with the exceeding of the minimum threshold provided for of a total damage exceeding ten million euros (it has been seen how the VAT evasion in Italy would be equal to a total amount of 7. 156,743.18 euros and, in Germany, 5,631,619.03 euros).
Only in the event that a conflict arises between the EPPO and the national Public Prosecutor's Office regarding the possible inclusion of the criminal conduct subject to the E.A.M. in the scope of application of the jurisdiction of the European Public Prosecutor's Office and its exercise in accordance with articles 22, 23 and 25, paragraphs 2 and 3, could the conflict be resolved pursuant to art. 16 of Leg. February 2, 2021, no. 9, to the determinations of the General Prosecutor at the Court of Cassation, as the judicial authority identified as the one competent to decide, at the national level, on the conflict that may arise between the European Public Prosecutor's Office and one or more Public Prosecutors' Offices, in implementation of the provisions of art. 25, par. 6, of EU Regulation 2017/1939.
6. The foregoing arguments render the proposed question of constitutional legitimacy irrelevant.
7. The ruling follows, for the provisions of art. 616 cod. proc. crimin., the sentence of the applicant to pay the costs of the proceedings. Send the Clerk of the Court to carry out the formalities referred to in Art. 22, paragraph 5, of Law no. 69 of 2005.
Dismisses the appeal and orders the appellant to pay the costs of the proceedings. Send the Clerk of the Court to carry out the formalities pursuant to art. 22, paragraph 5, of Law no. 69 of 2005.
Thus decided in Rome on April 27, 2022.