The execution of an "international arrest warrant" (recite: arrest for extradition purposes by Interpol red notice) the completeness of the charge contained in the international arrest warrant, including also the identifying data of the proceedings against the appellant then resulted in a judgment of conviction does not allow to infer the actual knowledge of the hearing.
SUPREME COURT OF CASSATION
SECTION THREE CRIMINAL
Judgment, (date of hearing 22/05/2019) 05/09/2019, No. 37132
Composed of the Honorable Messrs:
Dr. IZZO Fausto - President -
Dr. CERRONI Claudio - Councilor -
Dott. ANDREAZZA Gastone - Councilor -
Dott. GENTILI Andrea - rel. Councilor -
Dr. DI STASI Antonella - Councilor -
pronounced the following:
JUDGMENT
On the appeal brought by:
S.S.V., born in (OMISSIS);
against the order of 16/1/2019 of the Court of Appeal of Brescia;
Having regard to the acts, the contested order and the appeal;
heard the report delivered by Counselor Dr. Giovanni Liberati;
read the conclusions of the Public Prosecutor, in the person of Deputy Prosecutor General Dr. Lori Perla, who requested that the appeal be declared inadmissible.
Conduct of the trial.
1. By order of January 16, 2019, the Court of Appeal of Brescia, ruling on remand, following the annulment ordered by the Fourth Criminal Section of this Court in Judgment No. 39739 of 2018, rejected the request proposed by S.S.V, seeking restitution within the time limit for lodging an appeal against the judgments of January 20, 2010, of the Court of Brescia and November 12, 2010, of the Brescia Court of Appeals, holding that there was no innocent lack of knowledge on the part of the defendant of the proceedings and the conviction order, since on the night of (OMISSIS) the international arrest warrant issued against the defendant had been executed, in which the proceedings, the competent authority, the registration numbers of the proceedings, the indictment (with full explication of the charge), the co-conspirators, the fugitive status of the defendant, all the details (including telephone numbers) of the competent judicial authority had been fully indicated, with the consequence that the non-attendance at the trial had to be considered the result of a free and voluntary choice of the defendant, as he was aware of the pendency of the proceedings against him.
2. The defendant appealed against this order in cassation on three grounds.
2.1. In a first plea, he alleged violation and misapplication of Article 175, paragraph 2, of the Code of Criminal Procedure, in the text prior to the amendments made by Law No. 67 of 2014, pursuant to Article 606, paragraph 1(b), of the Code of Criminal Procedure.
He expounded that his own detention, which took place in (OMISSIS), did not constitute sufficient circumstance to exclude the existence of the prerequisites for remission within the terms, since it did not appear that on the occasion of the detention the appellant had been made aware in a language known to him of the proceedings pending against him, since the records showed only an exchange of information between the Italian and Colombian authorities, of which it did not appear that the appellant was aware and which had, moreover, led to his release after 48 hours.
2.2. In a second plea, he complained of a violation of Article 6(3)(a) ECHR, pursuant to Article 606(1)(b) of the Code of Criminal Procedure, on account of the infringement of his defense rights, as a result of the failure to fully inform him of the charges against him in known language and the pronouncement of the judgment of conviction in his absentia despite this failure to inform him, which did not allow his non-participation in the trial to be considered voluntary.
2.3. With the third plea, he complained of the manifest illogicality of the reasoning, pursuant to Article 606 c.p.p., paragraph 1(e), in the part in which it had excluded the applicability of the discipline of remission in terms, since the appellant had not been placed at the disposal of the Colombian judicial authority and had not been fully informed of the pendency of the trial against him.
3. The Attorney General concluded by requesting a declaration that the appeal was inadmissible, as the completeness of the charge contained in the international arrest warrant, which also included the identification data of the proceedings against the appellant, made it possible to infer actual knowledge of the charge, crystallized in all its elements in a formal measure capable of constituting the vocatio in iudicium.
Reasons for the decision
1. The third ground of appeal is well-founded and absorbing.
2. It must be premised that the United Sections of this Court, in the Innaro ruling, pronounced at the hearing of February 28, 2019, in resolving the interpretative contrast, with regard to the identification of the conditions necessary to consider the proceedings concluded with the judgment whose enforceability is contested as effectively known by the defendant, between the solution tending to consider the presumption of non-knowledge of the criminal proceedings on the basis of the defendant's vocatio in iudicium as overcome and the opposing one, according to which the notice of conclusion of the preliminary investigation pursuant to art. 415 bis c.p.p., where it is ritually served and conforms to the legal model, which therefore contains "the summary statement of the fact for which one is proceeding, the rules of law alleged to have been violated, and the date and place of the fact," allows the proceedings to be considered known, precluding the return within the time limit, pursuant to Art. 175c.p.p, paragraph 2, (in the text prior to the reform introduced by Law no. 67 of 2014), have held that actual knowledge of the proceedings, which is an obstacle to restitution within the time limit for lodging an appeal, must refer to the charge contained in a formal measure of vocatio in iudicium, specifying that such cannot be considered the knowledge of the charge contained in the notice of conclusion of the preliminary investigation referred to in Article 415 bis c.p.p, which is not in itself sufficient to guarantee to the defendant also that of the trial, it being understood that the defendant must not have waived his right to appear or to appeal, or must not have deliberately evaded such knowledge.
Now, in the present case, the Brescia Court of Appeals, in ruling, as the enforcement judge, on the appellant's request for restitution within the time limit for the purpose of lodging an appeal against the judgments of January 20, 2010, of the Brescia Court of Appeals and November 12, 2010, of the Brescia Court of Appeals, pointed out that the defendant had been arrested between (OMISSIS) in execution of an international arrest warrant, in which the proceedings had been fully indicated, the competent authority, the registration numbers of the proceedings, the charge (with full explication of the indictment), the co-defendant's co-defendants, the defendant's state of absconding, and all the details (including telephone numbers) of the competent judicial authority, specifying also, however, that on February 24, 2009, the appellant had been released by the Colombian authorities, so that he had not been notified of the request for indictment and the order setting the preliminary hearing (scheduled for March 20, 2009).
The Court of Appeals, therefore, held, in view of the execution of the aforementioned arrest warrant and its content, that the defendant had been fully made aware of the proceedings and that, by choosing to remain a fugitive, he had voluntarily refrained from appearing and participating in the trials that concerned him, thus ruling out the existence of the prerequisites for restitution within the time limit requested by the defendant, considering it sufficient, in order to consider his non-participation in the trial voluntary, that he was aware that a measure limiting his personal freedom had been issued against him.
This conclusion, however, differs from the principle established by the United Sections with regard to the conditions necessary for the defendant to be considered effectively aware of the proceedings that ended with the judgment whose enforceability was contested on the grounds that he did not participate in them, since the arrest warrant is an act external to the proceedings, of an enforceable nature, whose function is to execute measures of a coercive nature issued by the judicial authority of the issuing state, whatever the reasons, provided that they are inherent to the trial (cf. Sez. 6, no. 43386 of 11/10/2016, Berdzik, Rv. 268305; Sez. 6, no. 45043 of 20/12/2010, Velardi, Rv. 249219), so that it, in the absence of further elements, which have not been indicated, cannot be assimilated to the vocatio in iudicium or to an act equivalent to it, and therefore from its execution cannot be derived evidence of actual knowledge of the proceedings in which the defendant did not participate.
3. The contested order must, therefore, be annulled, subsisting the defect of motivation denounced by the appellant with the third plea, with referral back to the Brescia Court of Appeal for a new examination of the request for restitution within the time limit made by the appellant, to be carried out taking into account the principle of law established by the United Sections with the aforementioned Innaro ruling of February 28, 2019.
P.Q.M.
Annuls the appealed order and refers for new examination to another Section of the Court of Appeal of Brescia.
So decided in Rome, May 22, 2019.
Filed in the Court Registry on September 5, 2019.