Pretrial detention ordered in an passive extradition procedure can be ordered if there is a flight risk which is, in essence, the danger that the defendant leaves the Italian territorz, with the consequent risk of non-compliance with the obligation assumed at the international level to ensure his or her delivery to the requesting country. However, the existence of such danger must rely on concrete, specific and revealing elements of a real propensity and possibility of clandestine flight by the defendant.
(unofficial machine translation)
SUPREME COURT OF CASSATION
SIXTH CRIMINAL SECTION
(date of hearing 17/04/2024) 12/06/2024, No. 23632
pronounced the following
JUDGMENT
on the appeal brought by the Prosecutor General at the Court of Appeal of Trieste against the order of the Court of Appeal of Trieste dated 17/02/2024, in the proceedings against:
A.A., born in Bosnia-Erzevogina on (omissis) (CUI omissis);
Having regard to the acts and the contested order; having examined the grounds of the appeal;
heard the report delivered by Counsel Enrico Gallucci;
read the written conclusions of the Public Prosecutor, in the person of Deputy Attorney General Vincenzo Senatore, who requested that the appeal be declared inadmissible.
FACTS OF HTE TRIAL
1. The Deputy Councilor of the Court of Appeals of Trieste, by order issued on February 17, 2024 (concurrent grounds), did not validate the provisional arrest for extradition purposes of A.A. made on February 16, earlier, in connection with the procedure activated with regard to the judgment of the Court of B.B. (Bosnia) of October 26, 2022, which sentenced the aforementioned to six months' imprisonment for the crime of false statements ( art. 384 of the Criminal Code of Bosnia and Herzegovina), ordering, to that effect, the immediate release of A.A.
2. Specifically, the territorial court held, on the one hand, that there was no concrete danger of flight - a prerequisite required by Art. 716 of the Code of Criminal Procedure for the validation of provisional arrest and the application of precautionary measures to the extradited person - because of the request for political asylum submitted in Italy and the circumstances that the woman was known to the police office, was a regular assignee of housing in P, had presented herself, following a reasoned invitation, at the Police Headquarters Offices and had not tried in any way to escape.
In addition, the order indicated, the sentence imposed by the foreign judicial authority is below the limit that allows the application of the measure of pre-trial detention under Article 275 paragraph 2 of the Criminal Procedure Code (according to which such measures cannot be applied in the face of prognosis of a prison sentence of less than three years, if the convicted person has suitable housing).
3. The Attorney General's Office at the Court of Appeal of Trieste has appealed against this order, relying on two grounds. With the first, it is objected that there is a real danger of escape of A.A., who has evaded the execution of the sentence imposed in Bosnia and entered Italy illegally; with the second plea, it is alleged that the law has been violated in that the above-mentioned limit of sentence prognosis cannot apply to extraditional arrest and the consequent precautionary measures.
Reasons for the decision
1. The appeal is overall unfounded .
2. The appellant Attorney General is right in objecting to the erroneous reasoning of the Court of Appeals regarding the lack of the prerequisites of punishment to be able to apply the precautionary measure. Indeed, “on the subject of extradition for foreign countries, it is not applicable to precautionary measures under Article 714 of the Code of Criminal Procedure , the prohibition laid down in Article 275 , paragraph 2 bis, of the Code of Criminal Procedure, to order the measure of pre-trial detention in prison when the judge considers that, at the outcome of the trial, the prison sentence to be carried out will not exceed three years, constituting, the latter, a provision concerning domestic law” (thus, Sez. 6, no. 24245 of 21/05/2015, Pg in proc. Bibileishvili, Rv. 264169 - 01).
3. Unfounded, however, is the first ground of appeal. The contested order gives reasons that are not manifestly illogical with regard to the non-existence of a concrete danger of A.A.'s escape, indicating a series of elements from which it deduces the non-existence of such a risk. On this point, it was noted that “on the subject of coercive measures ordered within the framework of a passive extradition procedure, the danger of flight, which justifies the application of the measure limiting personal freedom, may be understood as the danger of the extradite's removal from the territory of the requested State, with the consequent risk of non-compliance with the obligation assumed at the international level to ensure his or her delivery to the requesting country.
However, the existence of such danger must be justifiably based on concrete, specific and revealing elements of a real propensity and possibility of clandestine removal on the part of the extradite” (Sez. 6, no. 28758 of 09/04/2008, Costan, Rv. 240322 -01). In the present case, the contested order - with reasoning that is not manifestly illogical and therefore not open to review in this court - specifically indicated the elements considered demonstrative of A.A.'s effective entrenchment in the national territory and the absence of a concrete danger of absconding.
FOR THIS REASONS
Dismisses the appeal.
So decided in Rome, April 17, 2024.
Filed at the Clerk's Office on June 12, 2024.