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European supervision measures: Italian resistances to go beyond pretrial detention

29 January 2021, Carlotta Capizzi, Irene Iannelli e Nicola Canestrini

 There is a risk of an abrogating interpretation of the regulations contained in the FD 829/2009 in Italian Courts: case law analysis and possibile solutions.

Index: 1. Introduction: implementation problems of Framework Decision 2009/829/JHA 2. The role of the Prosecutor in the procedure of European non-custodial measures 3. House arrest: a European precautionary measure? 4. Conclusions

I am in debt with Carlotta Capizzi and Irene Iannelli for many ideas.

(here the July 2021 decision of Italian Supreme court excluding home arrest from application of FD 829/2009)

1. Introduction: Italian implementation problems of framework decision 2009/829/JHA

Legislative Decree No. 36 of February 15, 2016 implements in Italy Framework Decision 2009/829/JHA on the application between the Member States of the European Union of the principle of mutual recognition of alternative measures to pre-trial detention.

The Framework Decision 2009/829/JHA indicates the need to prepare internal regulations that encourage the "widespread" implementation of non-custodial pre-trial supervision measures in the territory of the Union, with the declared intention, among other things, to discourage the application of detention measures to foreigners for the sole purpose of ensuring their participation in the trial (Recital no. 5 of Framework Decision 2009/829/JHA).

This is a measure of enormous potential, but completely unimplemented in Italian practice, being part of the group of instruments that, in recent years, have been numerous in order to strengthen judicial and police cooperation within the Union so as to ensure greater security for all citizens ... in accordance with the principle of proportionality of the measures restricting the freedom of the suspect / accused (unlike the often disproportionate use of the European arrest warrant).

Without going deeper the complex issue of the problem of the proportionality test in the state of execution of the restrictive precautionary measure requested in a European arrest warrant procedure, it seems evident that the execution of a precautionary custody order poses a significant problems of respect for the fundamental rights and principles enshrined in art. 6 of the TEU, which, as is known, both in the previous and in the current version, following the entry into force of the Treaty of Lisbon, refers to fundamental rights, as guaranteed by the ECHR and as resulting from the constitutional traditions common to the Member States, stating that they are part of the law of the Union as general principles (see ECtHR definitin of this principle as a ‘proportionality requirement’ embodied in Article 5/1, Ladent v. Poland, 2008, paragraph 55, stating again that ‘domestic authorities should always consider the application of other, less stringent, measures than detention’ (paragraph 56) and case law quoted in Fair trials'  ESO guide - Key legal issues, 2012) .

Among them, it is highlighted the principle of proportionality of crimes and punishments, fully attributable to the common traditions of the Member States and, therefore, a general principle of EU law.

Art. 49, para. 3 of the Charter of Fundamental Rights of the European Union (CFREU) in turn states that "the severity of penalties must not be disproportionate to the offence", and could therefore cover a fundamental right generally recognized in the Union.

The Framework Decision 829 on Mutual Recognition of Alternative Measures to Pre-trial Detention is fully in line with the broad European objective of preserving and developing an area of freedom, security and justice, allowing to overcome the existing regime when a subject residing in one Member State is subject to criminal proceedings in another Member State, while having to respect the fundamental rights and principles of "European criminal law" (meaning: European Convention on Human Rights and Fundamental Freedoms, as interpreted by the Strasbourg Court, as well as EU law).

The purpose of Framework Decision 829 is to allow the execution of non-custodial measures throughout the territory of the European Union, introducing a third way between pre-trial detention and free movement not subject to any control, since the bipartition is inevitably destined to sacrifice the interest of the community to live in safety or the fundamental rights of the suspect/defendant ("in the freedom-security dialectic, the ESO signifies more freedom and less security", Ana Maria Neira-Pena, The Reasons Behind the Failure of the European Supervision Order: The Defeat of Liberty Versus Security, European Papers, 2020).

In addition, the exclusive use of detention tools poses the real danger of generating a disparity in treatment between those who reside and those who, on the contrary, do not reside in the State where the trial is held against him, who runs the serious risk of being subjected to prison custody because of his nationality (flight risk).

That said,  there is a risk of an abrogating interpretation of the regulations contained in the FD 829/2009 by the jurisprudence of legitimacy and merit, and this mainly for two reasons (at least; for a deeper analysis please refer to Ana Maria Neira-Pena, 2020).

2. What is the role of the prosecutor in the procedure for European non-custodial measures?

First of all, Italian jurisprudence considers that the activation of the procedure for the execution in another EU State of non-custodial pre-trial measures pertains to the "executive" phase of the procedure for the application of precautionary measures, with the consequence that the competence to activate the procedure is entrusted (exclusively) to the Public Prosecutor, i.e. to the body which is assigned the executive burdens of the jurisdictional measures.

This implies that the procedure for activating the procedure foreseen by the 829 FD is seen as the exercise of a discretionary power, leaving - in the criticized interpretation  - the defense, the part of the judicial system which naturally has the primary function (constitutional and conventional) of attention to the protection of the rights of the accused, without any power of intervention.

Leaving to the prosecution alone the decision whether to ask for the execution abroad of non-custodial measures risks to frustrate that balance between the collective needs of society and the individual needs of the accused, since it is easy to imagine which need prevails in the action of the public prosecutor's office.

Moreover, if otherwise argued, there would be a clear violation of the right of defense, sub specie of the principle of equality of arms between prosecution and defense, being the latter placed in the impossibility of requesting the transfer of the execution of a precautionary measure in another member state, in violation of the right of defense under Art. 111 Italian Constitution and 6 ECHR, when the defense of the accused would no longer, in any way, practical and effective but, merely, theoretical and illusory.


There are some decisions which argue that the request to the judge having national competence about pretrial measures for replacement of a national pretrial detention measure (which is incompatible with a "European" measure) with one executable in the EU territory is not allowed, as if the office of the prosecutor would be entitled to decide on the replacement in ESO proceeding: therefore, it should be reaffirmed that the judge alone has the power to decide on the replacement of the requested measure (in this case: custody in prison with a "European" measure, i.e. one that falls within the range of measures provided for by the FD 829). 

3. Home arrest: a European precautionary measure?

Predicting that it will necessarily have to send the question to the Luxembourg Court, which involvement should be mandatory for the judge of last instance, Italian jurisprudence excludes home arrest is from the European (supervision order) measures, since it is (under national law) a "custodial measure".

I believe that both the Framework Decision and thus the implementing national law do not limit its applicability to non-custodial measures, being the difference between custodial and non-custodial measures a peculiarity of Italian national law unknown to European criminal law.

On the contrary, it should be noted that the Framework Decision 2009/829/JHA is entitled: "on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention" and refers, already in its recital 2, to the necessity that the principle of mutual recognition in criminal matters applies to the so-called "pre-trial orders", meaning, of course, both custodial and non-custodial supervision measures.

Moreover, the same reference of the Italian translation of the Framework Decision refers, in the title of the Framework Decision, to the "application between the Member States of the European Union of the principle of mutual recognition to decisions on alternative measures to pre-trial detention", therefore to all measures other than pre-trial detention.

Again, also recital 2, in Italian translation, refers to the applicability of the Framework Decision to "preliminary orders", as well as to the circumstance that: "the programme of measures aimed at implementing the principle of mutual recognition in criminal matters takes into consideration the mutual recognition of precautionary measures to measure no. 10", thus referring to the importance (as well as the necessity) that the principle of mutual recognition in criminal matters also applies to precautionary orders/measures latamente intesa and not specifically identified in non-custodial measures.

Moreover, the differentiation between custodial and non-custodial measures is a peculiar and distinctive feature of the Italian legal system and not, instead, a definitive feature of "European" criminal law.

It is not by chance that the entire Framework Decision does not expressly refer to "nationally identified" custodial measures, preferring a "substantial" approach to a "formal" one, whereby the measures included in the Framework Decision are identified not through codified references (in fact, it would be impossible to hypothesize a normative text capable of including all the types of custodial measures of all Member States) but through brief descriptions of the custodial measures to be understood as included in the Framework Decision.

In particular, the framework decision provides, in its art. 8/1, the applicability of the Framework Decision for the precautionary measures which provide for: "an obligation to remain at a specified place, where applicable during specified times", a measure which, obviously, can refer to the measure of house arrest, since the same Italian translation provides the precautionary measure of: "obligation to remain in a determined place, where applicable during specified times" being able to refer, therefore, in Italy, also to the precautionary measure of house arrest (in addition to those whose contents also correspond to the content of the European measure, such as, for example, the obligation to stay).

Therefore, it seems that the Italian law implementing FD 829 can also be applied in the case of the precautionary measure of house arrest, since the latter must be included within art. 8/1 of the Framework Decision as a measure imposing the obligation to remain in a determined place (the place of execution of house arrest), possibly at fixed hours (e.g. when house arrest is ordered with the authorization to go to work, or to provide for the indispensable needs of life according to Italian national law).

Stasbourg and Luxembourg case law may help in suppoting the proposed interpretation.

According to the European Court of Human Rights, the ‘right to liberty’ enshrined in Article 5(1) of the ECHR is not concerned with mere restrictions on liberty of movement, since only measures involving deprivation of liberty are covered by that article. In order to determine whether someone has been ‘deprived of his liberty’ within the meaning of Article 5 of the ECHR, the European Court of Human Rights has ruled that the starting point must be his concrete situation and that account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question (see, to that effect, ECtHR, Guzzardi v Italy, 1980, § 92, Buzadji v Republic of Moldova, 2016, § 103).

In its judgment Villa v Italy (§ 43 and 44, 2010), the European Court of Human Rights held that measures requiring the person concerned to report once a month to the monitoring police authority, to maintain contact with the psychiatric centre of the relevant hospital, to live in a specified place, not to leave the district in which he was residing, and to stay at home between the hours of 22.00 and 7.00, did not constitute deprivation of liberty within the meaning of Article 5(1) of the ECHR.

In a 2016 ruling regarding the deduction of the period of detention served in the executing Member State, CJUE pointed pout that "while measures such as a nine-hour night-time curfew, together with the monitoring of the person concerned by means of an electronic tag, an obligation to report to a police station at fixed times on a daily basis or several times a week, and a ban on applying for foreign travel documents, certainly restrict that person’s liberty of movement, they are not, in principle, so restrictive as to have the effect of depriving him of his liberty and thus to be classified asdetention’" (CJEU,  JZ v Prokuratura Rejonowa Łódź - Śródmieście, Case C-294/16 PPU) .. which is exactly the term used in 829 FD (to exclude its applicability).

Although the CJUE do not deal directly with the subject, it seems possible to argue that if the FD 829 applies to all measures that do not imply the deprivation of liberty, and indeed is compatible with all measures that imply its restriction, there seems to be no reason to exclude in principle house arrest from the application of the discipline in question.

4. Conclusions

The European Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, as set out in Article 2 of the Treaty on European Union. Article 3(2) TFEU provides that "the Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration, as well as the prevention and combating of crime."

But the creation of an area of freedom, security and justice cannot of course disregard - under penalty of the wreckage of the European founding idea - respect for fundamental rights (art. 67 TFEU), which indeed is an objective: one should therefore not fear, but rather encourage, an interpretation of European legislation and national implementation aimed at implementing rights and guarantees of any rule of law.

Because especially in the field of personal freedom "the unquestionable and growing needs of the fight against crime at the international level, while urging an increasingly effective and loyal cooperation between States, cannot in any case go to the detriment of the values that the Constitution declares inviolable" (Italian Constitutional Court, sentence 280/185).