Framework Decision 2008/675/JHA on taking account of EU convictions does not imply automatic recognition of any foreign judgment of EU member states but makes legal effects of said judgments equivalent to those resulting from previous Italian national convictions in accordance with national law.
This, however, does not imply formal recognition of said judgments, since the aforementioned regulatory instruments have established only the principle of "equivalence" between the previous conviction issued by an E.U. state and the one issued domestically: the foreign EU judgment already handed down may be evaluated by the judicial authority not for the purpose of its execution, but exclusively as a "historical fact," for effects "which, under domestic law, it may exert in the context of new criminal proceedings against the same person, but for different facts."
Italian Court of Cassation
Sec. 6 Criminal No. 3389 Year 2023
President: DI STEFANO PIERLUIGI
Rapporteur: DE AMICIS GAETANO
Hearing Date: 12/12/2022- dep. 26/1/2023
In a judgment of January 7, 2022, the Catania Court of Appeal declared inadmissible the request - submitted by the General Prosecutor's Office at the Catania Court of Appeal pursuant to articles 730, 733 of the Italian Criminal Code, 12 of the Criminal Code. - for the recognition, for the purposes of recidivism, disqualification from any public office for five years and any other penal effect of the conviction, of the irrevocable sentence pronounced on January 31, 2003 against FG by the Court of Dortmund, by which he was sentenced to a prison term of seven years in connection with crimes of intentional homicide, considered the least serious hypothesis and in conditions of partial capacity to understand and act.
2. Against the aforementioned decision appealed for cassation the Attorney General of the Republic at the Court of Appeal of Catania, censuring with a single reason the non-compliance and erroneous application of Article 730 cited, in relation to Article 3, paragraph 1, Legislative Decree No. 73 of May 12, 2016, and Article 12 of the Criminal Code, on the grounds that the effects of a foreign judgment must be expressly recognized by the domestic judicial authority, since Art. 3 cit. did not implicitly repeal the provisions of Art. 730 ff. cit., but assumes a scope only supplementary to the domestic procedural institutions and must be
interpreted in conjunction with the other regulatory measures (Legislative Decree Nos. 74 and 75 of 2016) concurrently enacted by the legislature.
3. In an indictment sent to the Clerk's Office of this Supreme Court on November 24, 2022, the Attorney General outlined his conclusions, requesting that the appeal be declared inadmissible.
4. In the interest of FG, defense counsel, Advocate FRM, sent to the Clerk's Office of this Supreme Court on December 6, 2022, a memorandum in which he explained his conclusions, requesting the dismissal of the appeal.
1. The appeal is inadmissible as manifestly unfounded.
2. With regard to the relationship between the institution of recognition of criminal judgments under Article 730 of the Code of Criminal Procedure and the mechanism of mutual recognition of convictions among E.U. states, this Supreme Court has already affirmed the principle that, for the purposes of recidivism (Article 12(1) of the Criminal Code), convictions handed down by judicial authorities of member states of the European Union have relevance, in the concurrence of the conditions set forth in Article 3, Leg. May 12, 2016, No. 73, implementing Framework Decision 2008/675/JHA, 2Court of Cassation - unofficial copy without the need for the prior judgment of recognition under Article 730 of the Code of Criminal Procedure (Sec. 6, No. 29949 of 16/06/2022, Alesci, Rv. 283614; Sec. 6, No. 37718 of 22/09/2022, Bontorno, n.m.).
Legislative Decree No. 73 of May 12, 2016 (implementing Framework Decision 2008/675/JHA on taking into account convictions between EU member states in new criminal proceedings) transposed into Italian law Council Framework Decision 2008/675/JHA of July 24, 2008 on taking into account convictions between EU member states in new criminal proceedings.
This decree was issued in conjunction with two other similar pieces of legislation, Legislative Decree No. 74 of May 12, 2016 (implementing Framework Decision 2009/315/JHA on the organization and content of the exchange of information extracted from criminal records between Member States) and
Legislative Decree No. 75 of May 12, 2016 (implementing Decision 2009/316/JHA on the establishment of the European Criminal Records Information System (ECRIS)), issued on the same date to implement Framework Decisions 2009/315/JHA and 2009/316/JHA, respectively, both of which deal with exchanges of information between European criminal records.
In particular, Framework Decision 2008/675/JHA of July 24, 2008, established that each Member State shall ensure that, in the course of criminal proceedings against a person, previous convictions handed down in another Member State against the same person for
different facts, in respect of which information has been obtained under the instruments applicable to mutual legal assistance or the exchange of information extracted from criminal records, "are taken into account to the extent that previous national convictions are themselves taken into account, and that legal effects equivalent to those resulting from previous national convictions are attached to them in accordance with national law."
This was intended to establish the principle that a conviction handed down in one Member State should be given equivalent legal effects in the other Member States to those attached to national convictions in accordance with national law, whether they relate to matters of a properly factual nature or to procedural or substantive law effects existing in national law (see Recital 5).
In addition, with Framework Decision 2009/315/JHA of February 26, 2009, it was stipulated that in the event of a conviction handed down by a state of the European Union against the national of another member state, it should be communicated to the latter state, which is obliged to retain it in order to provide information on criminal records.
Finally, by Framework Decision 2009/316/JHA of April 6, 200, the States of the European Union created a decentralized computer system based on the criminal records databases of each Member State (ECRIS), to implement Decision 2009/315/JHA through the creation of a computerized system for the exchange of information between Member States on convictions, so as to enable the communication of information on convictions in an easily understandable manner.
According to what the Report to Legislative Decree No. 73 of 2016 makes clear, the aforementioned Framework Decision 2008/675/JHA, together with the subsequent Decisions 2009/315/JHA and 2009/316/JHA, intended to improve the "circulation" of information on convictions: with the system of so-called European recidivism, in fact, it allows the use of the ECRIS (European Criminal Records Information System) certificate for any determination on punishment, in particular for the application of recidivism or for the declaration of habitual criminality of the convicted person, as well as any other assessment that the judge has to make, from the stage of preliminary investigations to that of execution.
It is still worth noting that with Legislative Decree No. 74 of 2016, the rules of T.U. No. 313 of 2002 on criminal records and the registry of administrative penalties dependent on crime and related pending charges were amended.
In particular, a new Title (Title II-bis) was added for the "European criminal record": while Article 3, on ordinary criminal records, provides--with this limited exception--for the entry of final convictions, including those issued by foreign judicial authorities "if
recognized pursuant to Articles 730 et seq. of the Code of Criminal Procedure," Article 5 - bis, relating to the European Criminal Records, establishes the "direct" registration of convictions pronounced in another member state of the European Union against Italian citizens transmitted to the Central Office (and of subsequent decisions concerning the execution of the sentence or modifying or eliminating the registered convictions).
In this changed regulatory context is placed the recalled provision ex art. 3 d.lgs. cit., according to which "Convictions pronounced for facts other than those for which the Italian judicial authority proceeds, which are the subject of information within the framework of judicial assistance procedures or exchanges of data extracted from criminal records, shall be evaluated, even in the absence of recognition and provided that they do not conflict with the fundamental principles of the State's legal system, for any determination on punishment, to establish recidivism or another penal effect of the conviction, or to declare habituality or professionalism in the crime or tendency to commit crimes."
The principle of assimilation of convictions made by the courts of another member state to domestic ones, implies, therefore, that they, for the sole purpose of the effects that the previous judgment explains in the context of new criminal proceedings under domestic law, can be
used even in the absence of their recognition, which is required by Italian law.
The "taking into account" indicated by Framework Decision 2008/675/JHA and its implementing decree does not, in fact, mean "automatic" recognition, the aforementioned regulatory instruments having established only the principle of "equivalence" between the previous conviction issued by an E.U. State
and that issued domestically, with respect to the effects specifically indicated by the aforementioned legislative decree.
The limited applicative scope of the new regulatory instrument is confirmed both by recital no. 5 - where it is clarified that the framework decision does not aim to harmonize the consequences attributed by different national legislations to the existence of previous convictions handed down in other member states
- as well as by the tenor of the subsequent recital 6, where it emphasizes the fact that it does not aim at the enforcement in a Member State of judicial decisions issued in other Member States, so that the obligation to take them into account exists only to the extent that they are taken into account by national law.
It follows that, within the scope of the Framework Decision under review, as well as the coeval normative acts 2009/315/JHA and 2009/316/JHA, the existence of a previous final conviction handed down in another Member State may be examined and assessed by the prosecuting judicial authority not for the purpose of its
execution, but exclusively as a "historical fact," for the effects that, under domestic law, it may have in the context of new criminal proceedings, against the same person, but for "different facts."
The jurisprudence of legitimacy, moreover, has already clarified that Article 3 of Legislative Decree No. 73 of 2016 excludes the need for the prior judgment of recognition under Article 730 of the Code of Criminal Procedure. to assume relevance, during the execution in Italy of the sentence imposed by a sentence issued by a court of the State, to the rulings contained in the foreign sentence for the sole purposes indicated by the same rule, coinciding with those referred to in Article 12, first paragraph, no. 1), of the Criminal Code (Sec. 1, no. 25157 of 22/02/2017, dep. 2018, Cat Berro, Rv. 273049).
Finally, it must be noted that the precedent cited in the appeal (Sez. 6, no. 47414 of 17/11/2021, Staiti, Rv. 282452) had to do with an application for recognition of a foreign criminal sentence (already recognized for the purposes of Art. 12 of the Penal Code), formulated in order to obtain the application of the moderating criterion provided for by Art. 78 of the Penal Code in relation to another conviction for a crime judged in Italy.
The reference to the precedent now cited, however, cannot be held to be conferential of the case at hand, since this Court has ruled only on the purpose that was the subject of the petition (not provided for by our system and therefore not obtainable directly from the framework decision, which expressly refers to the effects provided for by the national system) and not on the necessity of recognition (a subject not devolved to the Court's examination).
3. From another standpoint, it must be considered, with regard to the recognition of the foreign judgment for the purpose of applying to the convicted person the accessory penalties provided for by our system (pursuant to Article 12(2) of the Criminal Code), that the purpose of the application for recognition, according to what is stated in the application, is to apply to G the accessory penalty of disqualification from public office for five years in relation to a conviction pronounced in Germany to a prison sentence of seven years. It follows that the recognition is intended to result, for "the same facts" for which the aforementioned was already tried and convicted in Germany, in the application of a further and different sentence.
This hypothesis does not seem to fall within the scope of the framework decision under consideration and its implementing legislative decree, both referring to the taking into account of previous convictions handed down in another member state against the same person "for different facts" from those for which the national judicial authority is proceeding.
It is therefore necessary to determine whether the form of recognition envisaged by the framework decision under consideration exhausts the possibilities of taking into account the conviction issued within the European Union, or whether there still remains a space for the application of criminal effects provided by our system "for the same facts," to be obtained through the traditional instrument of the recognition of convictions under Article 730 of the Code of Criminal Procedure.
Even if one were to accede to this second hypothesis, however, it must be noted that the appeal does not confront the bis in idem prohibition operating within the European Union, which seems to have limited upstream the ability to use the foreign criminal precedent for only "different facts" (Art. 3(1) of the aforementioned Framework Decision and 3(1) of Legislative Decree No. 73 of 2016) and which, in any case, could not fail to be relevant - taking into account the time of the facts - also for the recognition procedure under Article 730 of the Code of Criminal Procedure of a judgment issued by a member state of the European Union.
Indeed, the recognition of the foreign judgment for the purposes of Article 12(2) of the Criminal Code, by imposing an additional sentence on the convicted person for the same act for which he has already been tried in Germany, would run counter to the fundamental guarantees garrisoned by the aforementioned principle (ex art. 50 of the Charter of Fundamental Rights and 54 of the Convention implementing the Schengen Agreements), which aims to protect the individual against the prospect of the imposition of a second penalty and even before that against the prospect of suffering a second trial for the same fact, so as to -avoid the further suffering and economic costs brought about by the holding of a new trial in relation to facts for which that person has already been tried.
If the foreign conviction, moreover, were no longer enforceable, the ancillary penalties to be applied at the outcome of the possible recognition would not be operative either.
Assuming otherwise, the appellant does not explain at all how the limits indicated by supranational and constitutional jurisprudence (most recently, see EDU Court, A and B v. Norway, Nov. 15, 2016; ECJ. EU, March 20, 2018, Menci, Garlsson Real Estate SA and others, in case C-537/16, and Di Puma and others, in cases C-596/16 and C-597/16; Corte cost., sentences no. 149 of 2022 and no. 43 of 2018) in order to comply with the principle of ne bis in idem with reference to the possibility of a double sanctioning track for the same type of offence.
In the appeal, in fact, it is not explained on what normative and factual basis rests the "sufficiently close substantive and temporal connection" that would not give rise to a violation of ne bis in idem in the presence of different sanction proceedings.
A violation of the aforementioned fundamental guarantee of the European citizen could in fact occur when there is a lack, in concrete terms, of a sufficient chronological connection between the proceedings: a requirement, the latter, functional to protect the person from an, unjustifiably prolonged, situation of uncertainty about his or her fate.
In the present case, it is sufficient to note that the German conviction which is the subject of the application for recognition became final as far back as April 15, 2003.
4. On the basis of the above considerations, it is necessary, in conclusion, to declare the appeal inadmissible.
Declares the appeal inadmissible.
Thus decided on December 12, 2022
The Extending Counsel