The prohibition of double jeopardy with reference to sentences handed down abroad does not have the value of a principle common to the generality of state systems, and therefore cannot be considered as one of the generally recognized norms of international law, to which the Italian legal system conforms according to the provisions of art. 10 of the Constitution; and the international principle of “ne bis in idem” does not apply in the Italian legal system either.
For the recognition of a foreign sentence issued by a non-EU member state the procedure pursuant to art. 730 of the Italian criminal procedure code must be followed, if the intention is to have criminal effects derive from the recognition; there can be no continuation between an offense judged in Italy and an offense judged with the foreign sentence, issued by a non-member state of the European Union given that this effect cannot be the object of the recognition of foreign criminal sentences.
(automatic non official machine translation)
COURT OF CASSATION
VI CRIMINAL SECTION
judgment January 21 - February 5, 2025
no. 4698/25
has pronounced the following
JUDGMENT
against the decree of 30/07/2024 of the Court of Brescia
having regard to the documents, the measure complained of and the appeal; having heard the report made by the Judge Ersilia Calvanese;
having read the submissions of the Public Prosecutor, in the person of the Deputy Attorney General Luca Tamperi, who concluded by requesting the annulment with referral of the contested decree.
HELD AS FOLLOWS
1. With the aforementioned decree, the Court of Brescia declared inadmissible the petition presented in the interest of , aimed at the declaration of substantial ne bis in idem, subject to recognition of the sentence issued against him by the Moroccan judicial authorities, in relation to the irrevocable sentence issued by the Court of Appeal of Genoa and, alternatively, to the recognition of the continuation between the aforementioned sentences, reducing the penalty imposed in concrete terms.
The Court deemed the petition inadmissible with reference to the recognition of both the foreign sentence, as a hypothesis expressly excluded by art. 733, lett. /) cod. proc. pen., and the continuation with crime judged abroad, as not permitted by the jurisprudence of legitimacy.
2. The defense attorney of the interested party has appealed to the Court of Cassation against the aforementioned decree, citing the reasons for annulment, summarized below in accordance with the provisions of art. 173 of the implementing provisions of the criminal procedure code.
2.1. Violation of the law in relation to articles 666 and 179 of the code of criminal procedure and to constitutional and European principles regarding the right to a fair hearing (art. 6 ECHR).
The Court issued the decree de plano without even minimally confronting the reasons of supranational law that supported the request and in any case the lack of foundation of the request was not evident in relation to these reasons.
In this way the claimant was deprived of the guarantee of a contradictory procedure.
2.2. Failure to state reasons regarding the reasons given for the petitioner's right to recognition of the institutions invoked.
The defense had in fact highlighted how the request was supported by the bilateral treaties in force with Morocco (the International Convention on Mutual Legal Assistance, Execution of Sentences and Extradition and the related additional protocol) and in articles. 117 and 10 Const., as well as 696 of the Code of Criminal Procedure, which ensure the precedence of treaties over domestic legislation.
CONSIDERED IN LAW
1. The appeal is inadmissible for the reasons indicated below.
2. It should be noted that the petition was introduced by the appellant as an incidental plea ("incidente di esecuzione", a procedure which deals with definitive judgments, note added).
Article 666, paragraph 2, states that “If the request appears to be manifestly unfounded due to failure to comply with legal requirements or constitutes a mere repetition of a request already rejected, based on the same elements, the judge or the president of the panel, after hearing the public prosecutor, shall declare it inadmissible by means of a reasoned decree, which shall be notified to the interested party within five days. An appeal to the Court of Cassation may be lodged against the decree”.
3. Well, the request was manifestly unfounded not only for the reasons stated by the Court, but also for other reasons.
In fact, the request was inadmissible with reference to the request for recognition of the foreign judgment from which the effects indicated by the plaintiff were to be derived.
For the recognition of a foreign sentence issued by a non-EU member state, the procedure ex art. 730 cod. proc. pen. must be followed, if the intention is to derive penal effects from the recognition (Section 4, n. 2796 of 10/05/2000, Rv. 217722).
Other reasons for inadmissibility were added to this already decisive one.
As for the international ne bis in idem, beyond the recognition of the foreign sentence, it should be remembered that it is still necessary for there to be an international treaty or agreement that imposes the ne bis in idem prohibition in relations with the State in which the foreign sentence was issued. And in fact the prohibition of bis in idem with reference to sentences pronounced abroad does not have the value of a principle common to the generality of state systems, and therefore cannot be considered as one of the generally recognized rules of international law, to which the Italian legal system conforms according to the provisions of art. 10 of the Constitution; and also in the Italian legal system the international “ne bis in idem” principle does not apply (Court of Cassation No. 69 of 1976; among many, Section 3, No. 34576 of 18/05/2021, Rv. 282796; Section 4, No. 3315 of 06/12/2016, dep. 2017, Rv. 269222).
In this case, it should be noted that there is no treaty provision to this effect with the Kingdom of Morocco, as the bilateral sources cited by the appellant make no provision on this point (not clearly detecting the possible provision of the refusal of judicial cooperation in the case of double jeopardy, see Sec. 1, no. 708 of 08/04/1970, Rv. 115577).
Likewise, the request for application of the principle of continuation between the crime judged in Italy and the crime judged with the foreign sentence, issued by a non-member state of the European Union, was manifestly unfounded: in fact, this penal effect, as is universally recognized, cannot be the object of the recognition of foreign penal sentences, ex art. 12, first paragraph, penal code. (Section 5, no. 8365 of 26/09/2013, dep. 2014, Rv. 259035; Corte cast. no. 72 of 1997).
4. In light of these findings, the appeal must be declared inadmissible.
The appellant must therefore be ordered, pursuant to Article 616 of the Code of Criminal Procedure, to pay the costs of the proceedings.
Considering that there is no reason to believe that the appeal was filed without “being at fault in determining the cause of inadmissibility”, it must also be ordered that the appellant pay the sum, determined on an equitable basis, of three thousand euros, in favor of the Fine Fund.
FOR THESE REASONS
Declares the appeal inadmissible and orders the appellant to pay the legal costs and the sum of 3,000 euros in favor of the Fine Fund.
So decided on 21/01/2025 - filed February 5, 2025.