The judge cannot deny an alternative measure to prison detention - including house arrest - on the mere assumption of the absence of an enforcement address on the national territory, because the availability of an address in another EU state, where the person concerned is based, is equivalent to the availability of an address in Italy.
The core of judicial cooperation in the European Union is based on the principle of mutual recognition of judgments and judicial decisions and includes measures for the approximation of the legislation of member states in various areas: Italian transposition rules of Framework Decision 2009/829/JHA of the Council of the European Union of October 23, 2009, concerning the mutual recognition of decisions on alternative measures to "pre-trial detention" allows an European supervision Order for home detention in another EU member state.
Italian judge can in principle order homome detention (or house arrest) in order to avoid the "risk of unequal treatment between those who reside and those who do not reside in the State of trial: the person who does not reside in the State of trial runs the risk of being placed in pre-trial detention, whereas a resident would not. In a common European area of justice without internal borders it is necessary to adopt appropriate measures to ensure that a person subject to criminal proceedings who is not resident in the trial State is not treated differently from a person subject to criminal proceedings who is resident there" (Recital 5 FD 2009/829)
The Framework Decision, in fact, uses the expression "pre-trial detention" in a language that is deliberately generic, as it must be adaptable to the domestic legislation of each Member State, since it is not within the Union's competence to distinguish between prison custody and any other type of measure restricting personal freedom that implies its physical compression.
The Framework Decision 829/2009 wants to avoids discrimination on the basis of residence, even when the "appropriate" measure is house arrest.
sez. IV, ud. September 15, 2021 (dep. October 20, 2021), no. 37739
President Serrao - Rapporteur Nardin
1. By order of April 30, 2021, the Court of Rome, re-examination Section, rejected the application for re-examination submitted by G.E.J. against the order of the judge of criminal procedure of the Court of Rome, with which the measure of precautionary detention in prison was ordered against him, in relation to the provisional charge for the crime as per Presidential Decree no. 309. P.R. no. 309 of 1990, art. 73, paragraphs 1 and 4 and art. 80, for having detained and transported a load of drugs of the hashish type weighing a total of 270.00 kg, on behalf of a criminal association.
2. The measure of the court of review, in rejecting the request for revocation or replacement of the measure, acknowledges that the serious indications of guilt against the applicant have emerged from a complex investigation on the activities of a criminal group operating between Italy, Spain and Morocco, dedicated to the importation of drugs of various kinds. The association - headed by I.F., R.A. and P.D., who managed the acquisitions abroad, as well as A.C., their contact person on the Roman market - procured the drugs and took care of their transport in Italy, by sea (with the support of other organizations) and by land, using in particular travelling trucks with cover goods, with the help of third parties and F.F., responsible for receiving and storing the drugs. From the interceptions and from the communications exchanged on messengers that could not be intercepted, but were occasionally picked up because they were read aloud by the addressees, it emerged that on October 22, 2019 a shipment was expected to arrive. I. and P. informed A. and F. of this. The latter, on October 23, first reached A. in (omissis) and then I. and P. in (omissis). On the occasion of the meeting it appeared that F. should have delivered to I. and P. some unspecified "envelopes", previously prepared by A., while F. said he was ready, as soon as he had been informed of the time and place, to be at the arrival of the vehicle on which the drug was loaded, announced by R. The following day, F. reached the parking lot of the restaurant (omissis), in (omissis), where he met L.R.D., who advised him to hide in his jacket what had just been handed over to him, i.e. the money. Subsequently, F. went to the concrete company C., inside the Agrama area, where he met A., who, showing that he was aware of the meeting between R. and F., asked him for the money. The meeting and the exchange were filmed by the video surveillance system. After about ten minutes the footage recorded the arrival of L.R., while F. contacted A.'s wife, to warn her to call R.E., announcing that they would meet him to "eat together". According to what was later clarified, the message was intended to alert R. of the imminent delivery of the drug at his house. After a few minutes, an articulated truck arrived at the location, with the sign Iglesias Vela, corresponding to a Spanish transport company, driven by a driver, later identified, through the request of the Central Directorate for Anti-Drug Services to the corresponding Spanish body, as G.E.J.. Once the vehicle was parked, the driver opened the doors of the semi-trailer, in order to allow C. to unload three pallets, one of which, whose lower part was wrapped in black cellophane, was moved to the center of the square, while the other two were placed inside the semi-trailer again. At this point, A. and F. unloaded the platform and worked to separate the bags containing building materials from the other beige wrappers, two of which were handed over to L.R.. Two of them were handed over to L.R.; two of them were handed over to L.R., but Garda closed the doors and left. The entire operation was filmed by video surveillance. The interception (prg. 396) inside the van used by F., also revealed a dialogue in Spanish concerning sums of money. At the end of the unloading operations and the delivery of the drug to L.R., F. and A. proceeded to load on a car seven wrappers marked with the number (omissis), the same code then found on those loaded by L.R.. The latter, pursued by the Judicial Police, was checked and arrested in flagrante delicto. In the meantime F. and A. went, with the car loaded with the other packages, to R.'s house, to whom the drugs were entrusted, with recommendations for further deliveries. In the afternoon, F. reached I. and P., who - as it appeared from the environmental recordings - were already aware of L.R.'s arrest and informed F. about it. Later on, during a further conversation, I. and P. pointed out that nothing had ever happened before and complained that L.R. had not packed the goods well. On this basis, the Tribunal for the re-examination found the existence of serious criminal evidence against the appellant in the fact that he was present at the selection of the goods transported when they were unloaded from the articulated lorry; in the particular method of packaging the parcels "obviously" known both to the transporter and to the addressees; in the circumstance that such a "precious" cargo would never have been entrusted to an unaware person; in the fact that the appellant had not provided the G.I.P., nor to the Spanish Civil Guard any documentation regarding the transport activity and the anomalous procedure of selective and fractioned unloading; in having G., during interrogation, provided generic justifications not capable of disrupting the evidence, limiting himself to reporting the following: that he had made three trips commissioned by a certain "Franco", whose telephone contact had been provided to him by two Spanish truck drivers (D.G.M.A. and G.B.F.), one of which four years previously. ), one of which four years earlier, the other in Milan and the third, which led to the proceedings, in Rome; that he had always been paid in cash by the consignees; that he had only received two thousand euros for the disputed shipment, despite the three thousand euros agreed upon; that he did not know the consignees, having merely been given the unloading address by "Franco"; that the load consisted of building materials and agricultural implements. In view of this, the judge of the re-examination judges irrelevant the direct knowledge of R., by G., since he could well have been contacted by intermediaries, in order to make available his professional skills, finalizing them to the transport of the large consignment of drugs delivered. From the point of view of the danger of escape, the College of caution affirms that the danger of reiteration of the crime can be deduced from the fiduciary role played by the person concerned, confirming the adequacy of the only intramural measure. Finally, it excludes the applicability of measures other than custody in prison, with execution at the foreign state), pursuant to Legislative Decree no. 36 of February 15, 2016, with which Framework Decision 2009/829/JHA was implemented, given that it presupposes that a non-custodial precautionary measure has been ordered by the Italian judicial authority and that, on the initiative of the Public Prosecutor and with the intervention of the Ministry of Justice, another EU state operates its recognition for the purposes of execution on its own national territory. 3. The suspect, by means of his lawyer, has appealed against the order, putting forward three separate grounds.
3.2. With the second reason complains the false application of art. 272 and 274 c.p.p.. It argues that the order denies the applicability of a non-intramurary measure, as well as in relation to a supposed danger of reiteration of the crime based solely on the "known" availability of the applicant in the world of drug trafficking, based solely on the consideration of the lack of the applicant's rootedness in the Italian territory, without, however, formulate any consideration about the presence of elements from which to infer the danger of evading the application of a different measure. He recalls the jurisprudence of legitimacy, according to which the rootedness in a foreign country is not alone sufficient to substantiate the danger of escape, if not accompanied by concrete elements.
3.3. With the third reason complains of the false application of art. 275, paragraph 3 and of Legislative Decree no. 36 of 2016, art. 5. It recalls the principles enunciated by the United Sections Lovisi (no. 20769 of 28/04/2016), taken up by the subsequent pronouncements of this Court, and notes the incompleteness of the motivation of the contested order with regard to the adequacy of the only measure of custody in prison, as it lacks connection with the emergencies resulting from the investigations, such as the absence of contacts with the other suspects, and the absence of representative elements of the criminal usability of G. in activities other than that of the truck driver. He also points out that the order lacks justifications regarding the permanence of commingling with subjects of different nationality implying the possibility of reiteration of the crime. He underlines that the lack of motivation also involves the judgment on the danger of escape, since it was not taken into consideration that G. lives permanently with a companion in the city of (omissis), and that during the EAW procedure it was recognized that he will have to serve any sentence in his own country. Therefore, the non-containment of the danger of escape, due to the lack of ties with Italy, is in contrast with the provision of Legislative Decree no. 36 of 2016, art. 5, paragraph 1, which provides for the transmission of the precautionary decisions to the competent authority of the Member State in which the person concerned has legal and habitual residence, when he has expressed the desire to return to the State. He denounces the fallacy of the reasoning of the reviewing judge, who excludes the possibility of substituting the prison measure with a graduated one, without taking into account that adequacy and proportionality must be assessed in the potential application of the measures in different national systems, which are required to assist in their execution, since it is not admissible that, all things being equal, there should be unequal treatment between those who reside in the State where the trial is held and those who reside in another EU Member State. Concludes that the contested measure should be annulled.
Considered in law
1. The appeal must be allowed to the extent that follows.
2. Before dealing with the first grievance it is appropriate to recall what has been repeatedly affirmed by this Court, with regard to the limits of the judgment of legitimacy in the matter of personal precautionary measures, i.e. that when an appeal in cassation is lodged against a defect in the motivation of the measure issued by the Court of Review with regard to the consistency of the serious indications of guilt, the Supreme Court has only the task of verifying, in relation to the peculiar nature of the judgment of legitimacy and the limits inherent in it, whether the judge of merit has adequately accounted for the reasons that led him to affirm the seriousness of the evidence against the suspect and to check the consistency of the reasoning concerning the assessment of the evidence compared to the canons of logic and principles of law governing the appreciation of the evidence. (Sect. 4, no. 26992 of 29/05/2013, Tiana, Rv. 255460; Sect. 4, no. 22500 of 03/05/2007, Terranova, Rv. 237012). Therefore, the judge of legitimacy will not be able to examine the complaints that concern the reconstruction of the facts or that result in a different assessment of the circumstances examined by the judge of merit (Sect. 6, no. 11194 of 08/03/2012, Lupo, Rv. 25217801; Sect. 4, no. 18795 of 02/03/2017, Di Iasi Rv. 269884; Sect. 2, no. 31553 of 17/05/2017, Paviglianiti, Rv. 270628).
3. In this case, the criticism of the order essentially concerns the absence of an unequivocal circumstantial framework, resulting ambiguity of the elements that compose it from the same reading of the contested order, whose argumentative apparatus would not pass the control of motivational adequacy.
4. Now, the Board of Review bases the judgment of the gravity of the evidence substantially on the following circumstances: the implausibility of entrusting the shipment of drugs to a person unaware of its nature; the careful planning of operations; the presence of G. at the time of unloading the goods and the selection of the goods transported, whose mode of packaging was obviously known to the recipients, but also to the carrier; the absence of documentation "about the transport activity and the abnormal procedure of selective and fractioned discharge", not presented to the G. I.P. and to the Guardia Civil; the generality of the statements made by G. during the interrogation of guarantee; the dialogue in Spanish concerning sums of money, intercepted inside F.'s van which, although not referred to in the final assessment of the evidence, is however reported in the body of the grounds.
5. In examining the consistency of the reasoning of the judges of the precautionary measure, it is appropriate to start from this last element, with respect to which the defense claims a real distortion of the evidence, since the interception is neither exposed in full, in order to give account of its content, nor resulting from the C.N.R. of the Guardia di Finanza, which reproduces a dialogue between F. and A. and not between F. and G.. 5.1. The objection of the appellant is objectively founded. This is because the interception inside the van referred to in prog. 396- R.I.T. 4677/19 - to which the order refers, in the part in which it describes the various phases of the unloading, and to which it attributes the content of the dialogue in Spanish between F. and a person whom he believes to be the driver - appears from the C.N. R. attached to the appeal to be a dialogue between F. and A., concerning the activities following the loading of a part of the drug on L.R.'s car. Therefore, in the absence of the explanation of the dialogue - which is assumed to have taken place between F. and G. - it is not possible to consider it as part of the evidence against him, since it is not clear whether and in what way that conversation supports the claim of the involvement of the suspect in the traffic and his awareness about the nature of the goods transported.
5.2. Nevertheless, it is not only an element that the Court of Review does not consider particularly relevant, so as not to mention it when commenting on the evidence on the basis of which it founds its decision, but also an element that the same appellant finds difficult to consider decisive in the reasoning of the re-examination measure, since he does not deny that G. received a compensation for the trip, this being confirmed by the same appellant during his interrogation. 6. Therefore, it remains to be understood whether the evaluation of the other circumstantial elements, considered as founding elements of the judgment of seriousness, allows to consider adequate and not manifestly contradictory the argumentative apparatus.
7. Contrary to what is claimed by the applicant, although the order formulates the premise that a criminal organization so articulated does not entrust to a person not aware of an illegal load of significant economic value, it is not only on this consideration that the measure bases the reliability of the elements against the suspect. In fact, it is not only on this consideration that the measure bases the reliability of the evidence against the suspect, but also, first of all, on the absence of transport documents proving G.'s good faith with regard to the content of the goods transported and, secondly, on the statements made by him, during the interrogation of guarantee, with regard to multiple trips made on behalf of such "F.", indicated to him by two Spanish truck drivers. Even if the reasoning is not completely carried out, the overall reading of the measure allows to understand that having lent himself to perform a task conferred by a subject substantially 'unknown', or better known only by name, which is limited to indicate the place of loading and unloading address, is considered a corroborating element of the awareness of the unlawfulness of the content of the goods transported, and represents a serious indication of the availability to carry out a project that does not imply a direct relationship with the organizers - which justifies the absence of contacts with the members of the association - but only with the subject who entrusts the task. Here then is that the premise on the reliability of the carrier is revealed in all its relevance, it being clear that accepting to assume a mandate from the undefined contours, on behalf of a subject whose role is not the typical role of the shipper, in the absence of transport documents, can only reflect the absolute confidence of the entrusting party on the ability of the entrusted to carry it out smoothly.
8. In view of these observations, the considerations made by the plaintiff regarding G.'s lack of participation in the unloading operations - actually not described by the order which only refers to his presence - and in the selection of the goods, or those regarding the knowledge of the packaging procedures, considered known also by the driver, are also of no importance, since these are subsequent executive activities, in which the person who has been engaged in the transportation of an illegal load may also not participate, without this being able to infer anything in one sense or the other.
9. It must, therefore, be considered that the motivation does not suffer the defect of inadequacy and inconsistency contested. The reason must, therefore, be rejected.
10. It is necessary, at this point, to address the grievance introduced with the second and third ground of appeal - which, in the appellant's view, concerns preliminary aspects to the choice of the applicable measure - since they are closely related to each other. 10.1. The re-examination Court, in fact, opting for the most afflictive measure, on the one hand, underlines, by assessing the danger of escape, that G. has no stable ties (living, family or work) in Italy, on the other hand, affirms the existence of the danger of reiteration of the crime, since the fiduciary role played by the suspect, refers "to a known availability of the applicant in the world of drug trafficking". It also excludes that recourse can be made to the procedures provided for by Legislative Decree no. 36 of 2016, which introduces a discipline exclusively concerning the execution of non-custodial measures, once ordered by the national judge.
10.2. The applicant opposes that the choice of measure cannot, by virtue of the provisions of Legislative Decree no. 36 of 2016, art. 5, be limited to the verification of the lack of a domicile in Italy, since the judge of the precautionary measure must deal with the possibility of the execution of the precautionary measure in the State of the European Union to which the suspect belongs, in the event that he expresses the will to return there. All the more so when there are no explicit elements from which to deduce the intention to evade the precautionary measure.
11. This is a complex issue to deal with which, nevertheless, two premises are necessary.
11.1. The first one concerns the second horn of the motivation, related to the existence of the assumptions of adequacy of the only precautionary measure of the custody in prison applied by the G.I.P. and confirmed by the Court for the review on the basis of a not better motivated "known availability of the applicant in the world of drug trafficking", of which from the reading of the order do not emerge the contours, not outlining from which episodes can be drawn a similar assumption. Unless we want to believe - but there are no elements, not merely hypothetical, referred to by the order, which allow it - that the previous trips made for such "F." concerned drug trafficking. So that, in the absence of further elements of knowledge on the past of the suspect - moreover, incensed, the statement of the judges of the precautionary measures is resolved in a mere conjecture devoid of any probative index, for this alone censurable.
11.2. On the other hand, as the appellant well points out, since no direct contacts with the organization dedicated to drug trafficking emerge, there is no justification, or at least it is not argued in any way, as to why the danger of reiteration of the crime, once the appellant has been prevented from carrying out the activity of road haulier, could not possibly be safeguarded with an alternative and less afflictive solution, having regard to the range of measures of increasing gravity typified by the law (art. 281 and 285 c.p.p.). The task of the judge of the precautionary measure, in fact, is to give application to the principle of the "less necessary sacrifice" - as enunciated by the Constitutional Court, most recently with sentence no. 48/2015) - which requires that the compression of personal freedom is contained within the minimum limits necessary to meet the precautionary needs of the concrete case (Sez. U, no. 20769 of 28/04/2016, Lovisi, in motivation).
11.3. The second premise, which forms the prerequisite of the reasoning that is going to be carried out, is that the applicant has actually indicated in the application for review at which domicile a non-custodial precautionary measure can be implemented in another State of the European Union, attaching the rental contract of the house at which he lives with his partner in the city of (omissis).
12. At this point, in order to better understand the objectives pursued by Legislative Decree no. 36 of February 15, 2016, containing "Provisions to conform domestic law to Council Framework Decision 2009/829/JHA of October 23, 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on alternative measures to pre-trial detention", it is necessary to take a step back.
12.1. The core of judicial cooperation in the European Union is based on the principle of mutual recognition of judgments and judicial decisions and includes measures for the approximation of the legislation of member states in various areas. The rule, enunciated as early as the Conclusions of the Tampere European Council of October 15-16, 1999, a veritable cornerstone of judicial cooperation in the Union, is today expressed for criminal matters - following the replacement of the provisions of Title VI of the EU Treaty, with the provisions of Chapters 1, 4 and 5 of Title V of the TFEU - (cf. tables of correspondence G. U. of the European Union October 12, 2012) - by art. 82, par. 1 TFEU, according to which "Judicial cooperation in criminal matters within the Union is based on the principle of mutual recognition of judgments and judicial decisions and includes the approximation of the laws and regulations of the member states in the areas referred to in paragraph 2 and art. 83".
12.2. This is a founding operational mechanism, which finds its precondition - but also its reinforcement - in the mutual trust between the Member States, and which can only be revoked after amendment of the Treaties, since it is enshrined in them.
12.3. The overcoming of the so-called third pillar (cooperation in the areas of Justice and Home Affairs JHA) of the Treaties of Maastrich, Amsterdam (and Nice) through the regulatory instrument of directives, provided for precisely by art. 83, par. 2 of the TFEU, was regulated by Protocol 36 of the Lisbon Treaty, with which it was established in art. 9 that:
"The legal effects of the acts of the institutions, bodies, offices and agencies of the Union adopted on the basis of the Treaty on European Union prior to the entry into force of the Treaty of Lisbon shall be maintained until such acts have been repealed, annulled or modified in application of the Treaties". On the other hand, art. 10 of the same Protocol clarifies that for the transitional period, starting at the end of the five-year period following the entry into force of the Treaty (2009-2014), the limitations on the supervisory powers of the Court of Justice of the Union and the Commission (in relation to the infringement procedure), as per the version of the Treaty prior to the Lisbon Treaty, apply.
12.4. Therefore, as long as the act of the so-called third pillar - which remains of the intergovernmental type, typical of international law - is not innovated, it remains valid and constitutes a part of the fabric of the sources of European law, within the limits of their respective effectiveness with respect to the member states of the Union.
13. It should also be remembered that before the signing of the Lisbon Treaty, the text of the TEU, in its consolidated version of 2002, following the approval of the Treaty of Nice, in Title VI, relating to the Provisions on Police and Judicial Cooperation in Criminal Matters, established the content of joint action, providing in art. 31 that it would include, among other things, "the facilitation and acceleration between the competent ministries and the judicial or equivalent authorities of the Member States (...) in relation to proceedings and the enforcement of decisions" (letter a)), as well as "the guarantee of compatibility of the laws applicable to the Member States, to the extent necessary to improve such cooperation" (letter b)). While art. 34 clarified the measures that the European Council can adopt - on the initiative of the Commission or a member state - in order to promote and implement cooperation in criminal matters, providing among these the adoption of framework decisions for "the approximation of the laws and regulations of the member states" whose effectiveness is binding "as to the result to be achieved, without prejudice to the competence of the national authorities as to form and methods". The Treaty, however, excludes their direct effect, although they are binding on the Member States, which must comply with them.
13.1. On this point, as is well known, there have been several judgments of the Court of Justice of the European Union, starting from the Pupino Judgment (C-105/03) up to the more recent Poplawski (C-579/15 and C-573/17), in which it was first affirmed the obligation of "interpreting in conformity" of national legislation with the act of the third pillar, even if not directly effective and irrespective of its transposition, and then stated that it must always prevail over any different interpretation adopted by the national court of last instance, where this is based on an interpretation of the law incompatible with the purposes of the Framework Decision and with EU law.
13.2. Such brief clarifications, though obvious, appear useful to frame the question under examination.
14. The Legislative Decree no. 36 of 2016, as we have seen, fulfills - albeit belatedly compared to the deadline set by the Lisbon Treaty, which had imposed the transposition of the acts of the third pillar acquis within the five years following the entry into force of the Treaty - the task of implementing in the Italian legal system the Framework Decision 2009/829/JHA of the Council of the European Union of October 23, 2009, concerning the mutual recognition of decisions on alternative measures to "pre-trial detention".
14.1. The objective of Framework Decision 2009/829/JHA is expressed in the Recitals, which form the premise and indicate the motivation, according to what is established by the Common Practical Guide of the European Parliament, the Council and the Commission for the drafting of legislative texts of the European Union (10.5.1).
14.2. There we read, first of all, that the Framework Decision is adopted in accordance with the conclusions of the European Council meeting in Tampere on 15 and 16 October 1999, with particular reference to point 36, according to which the principle of mutual recognition should apply to pre-trial orders; furthermore, that the programme of measures aimed at implementing the principle of mutual recognition in criminal matters takes into consideration the mutual recognition of pre-trial measures (Recital 2). The measures taken by the Framework Decision are aimed at enhancing the protection of citizens in general by allowing a person residing in one Member State but subject to criminal proceedings in a second Member State to be supervised by the authorities of the State in which he or she resides while awaiting trial. Therefore, the Framework Decision "aims at the surveillance of the movements of an accused person in the light of the overriding objective of the protection of citizens in general as well as the risk posed to them by the existing regime, which provides only two alternatives: pre-trial detention or unsupervised movement. The measures will therefore reinforce the right of law-abiding citizens to live in safety." (Recital 3). The measures provided for in the Framework Decision, therefore, "should also aim to strengthen the right to liberty and the presumption of innocence in the European Union as a whole and ensure cooperation between Member States when a person is subject to obligations or supervision measures during judicial proceedings." Accordingly, the objective (...) of the Framework Decision "is to promote, where appropriate, the use of non-custodial measures as an alternative to provisional detention, even where, under the law of the Member State concerned, provisional detention could not be ordered ab initio" (Recital 4).
14.3 But above all, and this is the core of the Framework Decision's reasoning, it is clarified that: "With regard to the detention of persons subject to criminal proceedings, there is a risk of unequal treatment between those who reside and those who do not reside in the State of trial: the person who does not reside in the State of trial runs the risk of being placed in pre-trial detention, whereas a resident would not. In a common European area of justice without internal borders it is necessary to adopt appropriate measures to ensure that a person subject to criminal proceedings who is not resident in the trial State is not treated differently from a person subject to criminal proceedings who is resident there" (Recital 5). 14.4 It is, therefore, in this perspective that the provisions of Legislative Decree no. 36 of 2016 should be approached, taking into account that framework decisions bind to the result, leaving to the States, in compliance with the principle of subsidiarity, the form and means to achieve it.
15. The wording contained in Legislative Decree no. 36 of 2016, art. 2, which essentially repeats that of art. 4 of the Framework Decision, establishes in letter b) that "decision on precautionary measures" means "a measure issued in the course of criminal proceedings by the judicial authority by which one or more obligations and prescriptions are imposed on a natural person, as an alternative to pre-trial detention". On the other hand, art. 4, which incorporates the provisions of art. 8 of the Framework Decision, provides that the provisions introduced by Legislative Decree. apply to the following precautionary measures: (a) obligation to notify any change of residence, in particular in order to ensure receipt of the summons to appear at a hearing or in court in the course of criminal proceedings; (b) prohibition to frequent certain places, places or areas in the territory of the issuing State or the executing State; (c) obligation to remain in a specified place, possibly at specified times; d) restrictions on the right to leave the territory of the State; e) an obligation to report at specified times to the authority indicated in the order; f) an obligation to avoid contact with certain persons who may be involved in any way in the offence in respect of which proceedings are being brought; g) a temporary ban on exercising certain professional activities.
15.1. Now, what needs to be understood is what is meant, in light of the objectives pursued by Framework Decision 2009/829/JHA, by "pre-trial detention", i.e. whether it corresponds to any form of precautionary measure that implies a physical coercion of freedom, i.e. pre-trial detention in prison or house arrest, or whether it only concerns the maximum restrictive measure, i.e. prison detention. The Framework Decision, in fact, uses the expression "pre-trial detention" in a language that is deliberately generic, as it must be adaptable to the domestic legislation of each Member State, since it is not within the Union's competence to distinguish between prison custody and any other type of measure restricting personal freedom that implies its physical compression.
15.2. With regard to the Preamble of Framework Decision 2009/829/JHA, widely reported, it is necessary, at this point, to make a reverse reasoning, asking whether to consider that the term "pre-trial detention", if understood as including the measure of house arrest - i.e. all custodial measures - makes it possible to consider that the objective set by the Union with the adoption of the Framework Decision has been achieved or, on the contrary, only the inclusion of house arrest among the measures "alternatives to custodial detention" makes it possible to achieve it.
15.3 Well, it must be observed that the first option implies the betrayal of the purpose of the Framework Decision, as clarified in Recital 5) of the Preamble, which informs its grounds. Indeed, if it were to be considered that the measure of house arrest is to be considered under EU law as a form of "precautionary detention", i.e. a measure that is not governed by the implementing rules of the Framework Decision, since it is not an alternative to it, it would have to be considered that ordering the measure of detention in prison for a European citizen who does not reside in the State, who does not have a domicile in the national territory where the measure of house arrest can be carried out, does not constitute discrimination based on residence in another member state, whereas for a resident the measure of house arrest would be an "appropriate" decision. Such a solution, in fact, leads to believe that a resident of a different EU member state, without an address on the Italian territory, would never be able to have the measure of house arrest, given that, since it is a "precautionary detention", the implementing provisions of the European legislation, reserved only for alternative measures, do not apply to it. However, this is in contrast with what the Framework Decision considers discriminatory when it explains that "in a common European area of justice without borders, it is necessary to adopt appropriate measures so that a person subjected to criminal proceedings who is not resident in the trial State is not treated differently from the person subjected to criminal proceedings who is resident there" (Recital 5) last part). If, on the other hand, it is considered that "pre-trial detention" means only the measure of custody in prison, such discrimination does not occur, given that it is allowed that any measure other than prison detention - which under the same conditions is "appropriate" for a resident of the national territory - is carried out in the State of the Union where the person concerned is resident.
This is precisely the result pursued by the Framework Decision because it avoids discrimination on the basis of residence, even when the "appropriate" measure is house arrest. 15.5. This is the reason why, in deference to the principles enunciated by the European Court of Justice (CJ no. 283/81 of October 6, 1982, Cilfit, integrated by CJ no. 561/19 of October 6, 2019, Consorzio Italian Management and Catania Multiservizi published during the drafting of this reasoning), although the question is relevant, the College considered that there were no conditions to formulate to the Court of Justice a preliminary interpretative question pursuant to art. 267 par.1 lett.b) TFEU on the subject of Article 267 par. b) TFEU regarding the meaning of the term "precautionary detention", since the correct and uniform interpretation of EU law is not affected if the meaning of the provision is clear (acte clair), taking into account the purpose of EU law as expressed in a Framework Decision and the relationship of this kind of act with the legislation of the Member States; as there is no risk that in other member states the term may have a different meaning; as there are no interpretative decisions to the contrary by the Court of Justice on this point (acte eclaire).
16. Examining, on the other hand, the legislative text, it allows such an interpretation in accordance with the binding purpose of the Framework Decision, given that in art. 4, among the alternative measures to pre-trial detention - i.e. the measures regulated by the regulatory measure - it provides at letter c) "the obligation to remain in a determined place, possibly at fixed hours", outlining a situation certainly superimposable to that provided by art. 284 c.p.p., with which the prohibition of removal from the place of execution of house arrest is imposed, but it also regulates (in paragraph 3) the possibility of conforming the obligations to the indispensable requirements of life, authorising removal at particular times and with particular modalities. It must, therefore, be considered - contrary to what has been affirmed by the recent pronouncement of the Third Criminal Section of this Court (Sez.3 n. 26010 of April 29, 2021 Syski), which excludes the legal possibility of granting house arrest in a State other than the Union - that house arrest is one of the alternative measures to "precautionary detention", as understood by national law in accordance with EU law.
16.2. Nor could the consideration of the impossibility to intervene promptly in case of violation of the obligations imposed by the house arrest measure be considered as an obstacle to such a conclusion, since it is expressly provided for by art. 19, par. 3 of Framework Decision 2009/829/JHA that the competent authority of the executing State shall inform the competent authority of the issuing State "without delay" of "any failure to comply with a supervision measure and of any other element that may lead to the adoption of a further decision" and therefore also of the modification of the supervision measure, according to art. 18, par. 1 of the same Framework Decision, with the relevant withdrawal of the certificate. Art. 23 even provides that the executing state must request the adoption of measures within a certain period of time, being able to release itself from the obligation to monitor only when this does not occur.
16.3. Indeed, in the Framework Decision 2009/829/JHA, beyond the operational mechanism underlying the mutual recognition of decisions, the reflection of mutual trust on the ability of each State to ensure in the common European area of justice that same supervision on the execution of a precautionary measure that would be guaranteed by the State that imposes it is evident.
16.4. Accepting the last interpretative option, it is therefore possible to read the legal provision in a way that is in line with the objective expressed in the Preamble of Framework Decision 2009/829/JHA. A different reading, which does not include the measure of house arrest among the alternative measures to "precautionary detention" to which the provisions of the Legislative Decree apply, however, would require this Court of legitimacy to raise the question of constitutional legitimacy of Legislative Decree no. 36 of 2016, Articles 2 and 4 in relation to the provisions of Articles 3 and 11 Const. and Article 117 Const, paragraph 1, for lack of adaptation to the constraints of the supranational system, such rules of the internal legislative measure being in contrast with the ratio of the Decision 2009/829/JHA in a discriminatory sense between residents of the European Union. Nonetheless, as has been seen, the entire structure of Legislative Decree no. 36 of 2016 allows for a reading in compliance with both the Framework Decision and its reasons, as well as with the constitutional provisions.
17. Examining the contested measure in light of the reasons expressed, the Review Court, on the one hand, links the decision to apply the most afflictive measure to the danger of flight - inferred from the absence of stable ties in Italy on the other hand, states that it cannot have "alternative measures with execution in the foreign State where the applicant would reside" given that the provisions of D. Lgs. n. 36 2016. Legislative Decree no. 36 of 2016 concern "the different situation in which, once a non-custodial measure has been ordered by the Italian judicial authority and is in the process of execution on our territory, it can be operated, on the initiative of the Public Prosecutor, with the intervention of the Ministry of Justice, the recognition by another State of the Union for the purposes of continuation on the relevant territory".
17.1 This is an approach that is essentially based on the assumption, contradicted here, according to which house arrest is not among the alternative measures to pre-trial detention pursuant to Legislative Decree no. 36 of 2016, art. 4, as reproducing the provisions of art. 8 of Framework Decision 2009/829/JHA, and, therefore, cannot be executed abroad. Therefore, the absence of a valid domicile in Italy would not allow to curb the precautionary needs with the graduated measure, which requires the application of the measure of custody in prison, the only one suitable to protect the danger of escape.
17.2. But this is also an approach that implies the erroneous assumption according to which, in the choice of the precautionary measure to be considered adequate and proportional, the possibility of executing it in another State of the Union has no effect, since its identification is limited only to the precautions that can be executed in the national territory, which, only for the intervention of the Public Prosecutor in the executive phase can "continue" in the territory of another State of the Union.
17.3 Now, it should be noted that such an approach collides, first of all, with the provision of Legislative Decree no. 36 of 2016, art. 5. Therein, in fact, it is provided that the Public Prosecutor "shall, in compliance with the conditions set out in art. 6, provide for the transmission of the decision on the precautionary measures to the competent authority of the Member State in which the person concerned has his or her legal and habitual residence, when the person concerned has expressed the will to return to that State". Therefore, it is not at all necessary that the precautionary measure applied "is being executed in our territory", as held by the judge of the re-examination. So much so that, according to Legislative Decree no. 36 of 2016, art. 6, paragraph 1, "the transmission abroad is ordered immediately after the decision of the precautionary measures, with the indication of the period of application". 17.4. That of the Public Prosecutor, indeed, should not be understood as an option, contrary to what has been affirmed by another ruling of this Court according to which "The activation of the procedure for the execution of a non-custodial precautionary measure in another country of the Union - possibility introduced by Legislative Decree no. 36 of 2016, which has conformed domestic law to the Framework Decision 2009/829/JHA of the Council, of 23 October 2009, on 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 - is a measure of executive nature referred to the discretionary assessment of the public prosecutor, whose control of legitimacy can be carried out through the activation of the incident of execution" (In motivation, the S. C. has also specified that the parameters that must guide the public prosecutor in the exercise of this power relate to the balance between the interest of the person subject to caution to return to the State of residence (or other indicated) and the collective interest in the protection of security, which informs the entire precautionary system, consistent with the indications contained in Articles. 3 and 5 of Framework Decision 2009/829/JHA) (Sez. 2, no. 26526 of 09/03/2017, Dombrovski, Rv. 270357). His intervention, pursuant to art. 5 cited above, must, however, be understood as an obligation to implement the decision taken by the judge of the caution, so much so that the letter of the provision does not provide for any discretion. In fact, he "provides" for the transmission, without being given any other alternative.
17.5 Nor is it worthwhile authorising a different interpretation of the consideration, albeit formulated by the aforementioned ruling, according to which execution abroad would constitute a "possible outcome" that is not mandatory, since article 9, paras 1 and 3 of the Framework Decision states that the decision "may" and not "must" be transmitted to the member state in which the person concerned resides. Such optionality, in fact, not only cannot be found in the text of Legislative Decree no. 36 of 2016, art. 5, which states that the Public Prosecutor "shall" and not that "may", but neither can it be inferred from the text of the Framework Decision, where it states that "The decision on precautionary measures may be transmitted to the competent authority of the Member State where the person concerned resides (...) in cases where the person concerned, informed of the measures in question, agrees to return to that State". It is not, therefore, on the assessment of the Public Prosecutor that the execution abroad of a precautionary measure depends, but on the decision of the judge of the precautionary measure which imposes a measure executable also in another member state of the Union and on the willingness of the interested party to consent to such type of execution.
18. The approach of the review judge collides, not least, with the criteria for the choice of precautionary measures imposed by art. 275 c.p.p., insofar as it exceeds the obligation of grading the measure with "the least sacrifice necessary", ending up placing on the same level two measures of increasing gravity, in terms of compression of freedom, such as house arrest and pre-trial detention in prison, not on the assumption of the assessment of the minimum content necessary to meet the needs of the concrete case, but on the basis of the mistaken assumption that the absence of a home on the national territory realizes the condition referred to in art. 275 c.p.p., paragraph 2 bis, u.p.. And this, while the Framework Decision indicates a different and opposite direction, which invites to consider the "common European space" as a "common space of justice" in which the mutual recognition of judicial decisions in matters of precautionary measures finds its implementation in the execution of the measure by a State of the Union - where the interested party is based - other than the one that took it, on the basis of the assumption that informs the whole system, i.e. that there is the same interest of all States belonging to the Union to maintain "a common area of security" and to ensure "non-discrimination" among residents in the Union.
19. In conclusion, the following principle of law should be affirmed: "It is always up to the national judge to choose the measure according to the criteria provided for by art. 275 c.p.p., referring to the principles of proportionality and adequacy; he is not obliged to apply a non-custodial measure on the basis of the European legislation alone in order not to determine discrimination, if he considers that the precautionary needs cannot be otherwise satisfied if not with that measure. However, the judge cannot deny an alternative measure to prison detention - including, as mentioned above, house arrest - on the mere assumption of the absence of an enforcement address on the national territory, because the availability of an address in another EU state, where the person concerned is based, is equivalent to the availability of an address in Italy". This is because each State of the Union ensures the supervision of the execution of the measure, unless it refuses to do so for one of the reasons referred to in art. 15 of Framework Decision 2009/829/JHA. In this case, and only in this case, the Italian judge will be able to consider the interested party as having no address for the execution of an alternative measure to detention and will order accordingly. Since the contested order considered the danger of flight as a fundamental element for the adoption of the maximum precautionary measure, considered such only because there was no domicile available in Italy, where the Spanish citizen has no stable ties, and since, instead, it is necessary to carry out such assessment also with reference to the availability of the address for execution in another EU State, the order must be annulled for a new examination both with regard to the profile mentioned above (par. 11), and in relation to the one under examination here.
Annul the contested order and refer the case back to the Court of Rome for a new judgment.