Under EU law, the European Arrest Warrant may not be issued exclusively for investigative purposes, disconnected from the prosecution in the requesting state, as alternative instruments of European cooperation in the common legal space are provided for the pursuit of legitimate investigative purposes (EIO).
An European Arrest Warrant issued exclusively for the purpose of subjecting the person requested to surrender to acts of investigation (in this case, interrogations and confrontations) cannot be executed, because in this way the coercive instrument would be used for investigative purposes, which are not provided for by the FD 584/2002 and its Italian implementing law.
(unofficial machine translation)
Court of Cassation
Sec. Feriale judgment 32999 Year 2024
President: CIAMPI FRANCESCO MARIA
Rapporteur: CIAMPI FRANCESCO MARIA
Hearing Date: 20/08/2024 - filing August 22, 2024
JUDGMENT
On the appeal brought by:
PL born in ** on **/1961
against the judgment of 31/07/2024 of the COURT OF APPEALS of VENICE
Hearing the report delivered by President FRANCESCO MARIA CIAMPI;
read/heard the conclusions of the PG MARCO PATARNELLO.
The PG concludes by requesting that the judgment under appeal be set aside with reference.
Hearing defense counsel Advocate C concludes by requesting that the appeal be granted.
IN FACT
1. The Court of Appeals of Venice ordered the execution of the arrest warrant issued against PL in the context of criminal proceedings for tax and contribution offenses committed between October 1, 2010 and April 30, 2012, by means of surrender to the judicial authorities of Croatia, deferring the aforesaid surrender “when the Italian justice system is satisfied”-
2. With the grounds of appeal, summarized below pursuant to Article 173 disp. att. cod. proc. penale. PL through counsel of trust, complains with a first ground of complaint violation of the law in relation to Articles 1,2,6,7 and 16 of Law No. 69 of 2005, as well as Articles 1 and 18 D.Igs.vo No. 108 of 2017, Articles 1 and 5 Framework Decision 2002/584/JHA, Articles 5 and 6 ECHR, 6,7 and 8 of the Charter of Nice, with regard to the lack of proportionality in the issuance of the warrant. With a second plea he complains of violation of law in relation to Articles 6 and 16 of Law No. 69 of 2005, with regard to the failure to request additional information necessary for the decision on surrender. With further articulations he also complains of violation of the law in relation to Articles 1,2 and 19 lett. b of Law No. 69 of 2005 with regard to the sentenced person's postponement and execution of the sentence in Italy, of Articles 6 coma 1 bis and 18 ter comma 1 Law No. 69 of 2005 with regard to proceedings in absentia and the right to refuse surrender. Finally, he alleges violation of Article 2 Law No. 69 of 2005 with regard to the applicant's right not to be subjected to inhuman and degrading treatment.
3. Additional grounds were filed by the P's defense insisting that the appeal be granted.
4. The Attorney General's Office concluded that the judgment under appeal be set aside and remanded.
IN LAW
1. The appeal is well founded with reference to the first and second grounds, the others being absorbed. In the warrant and in the supplementary documentation requested by the Court of Merit, the reasons justifying its issuance do not clearly emerge, and they could refer either to mere investigative or inquiry needs or to the exercise of criminal prosecution. 2. Article 1(1) of Framework Decision 2002/584/JHA, as is well known, defines a European arrest warrant as “a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a person 2Court of Cassation - unofficial copy sought for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.” This definition does not contemplate a European arrest warrant instrumental to merely investigative needs, since the same must still be for the purpose of prosecution. This Court has, moreover, affirmed that a European Arrest Warrant issued exclusively for the purpose of subjecting the person requested to surrender to acts of investigation (in this case, interrogations and confrontations) cannot be executed, because in this way the coercive instrument would be used for investigative purposes, which are not provided for by the Framework Decision of June 13, 2002 and its implementing law of April 22, 2005 No. 69 (Sez. 6, No. 15970 of 17/04/2007, Piras, Rv. 236378).
It is true that the jurisprudence of this Court of legitimacy has, on other occasions, deemed legitimate the surrender in execution of a European arrest warrant for the purpose of prosecution in relation to the measure aimed at allowing the taking of an interrogation (Sez. 6, no. 43386 of 11/10/2016, Berdzik, Rv. 268305), confrontation (Sect. 6, no. 51511 of 18/12/2013, Lampugnani, Rv. 58510) and accompaniment for investigative purposes for the performance of interrogation and formal reconnaissance (Sect. 6, no. 45043 of 20/12/2010, Velardi, Rv. 249219).
In these pronouncements, however, the Court decided cases in which the investigative acts to be performed were specifically identified, determined ab origine, and not absolutely indeterminate, as in the present case. The recalled pronouncements, insofar as they refer to the legitimacy of the European Arrest Warrant both for the taking of evidence in criminal proceedings and for exclusively investigative reasons, must, moreover, be actualized through the comparison of the older principles with the instruments that realize the purpose of cooperation between states, in the manner of Directive 2014/41/EU of the European Parliament and of the Council of April 3, 2014, on the European Investigation Order in criminal matters. Recital 25 of the latter directive states that “This Directive lays down rules on the performance at all stages of criminal proceedings, including trial proceedings, of an investigative measure, if necessary with the participation of the person concerned for the purposes of gathering evidence. For example, a European Investigation Order may be issued for the temporary transfer of such a person to the issuing state or for the conduct of a hearing by videoconference. However, where such a person is to be transferred to another Member State for the purposes of criminal proceedings, including for the purpose of appearing before a court for trial, a European Arrest Warrant (EAW) should be issued in accordance with Council Framework Decision 2002/584/JHA.” Recital 26 adds that “To ensure proportionate use of the EAW, the issuing authority should examine whether an OCI is an effective and proportionate way to conduct criminal proceedings. The issuing authority should examine, in particular, whether the issuance of an EIO for the purpose of hearing a person under investigation or a defendant by videoconference may be a viable alternative.”
These predictions demonstrate how, in European Union law, the European Arrest Warrant cannot be issued solely for investigative purposes, decoupled from prosecution in the requesting state, as alternative means of European cooperation in the common legal space are provided for the pursuit of legitimate investigative purposes.
The objective uncertainty as to the reasons that were given for the adoption of the European Arrest Warrant at issue, also in the light of the very tenor of the contested decision in which on the one hand reference is made to a European Arrest Warrant issued “for the purposes of investigation/trial,” (p. 1), and on the other hand (p. 8) to a pre-trial order “issued in relation to the offense charged and to avoid the danger of absconding.” The referring judge will therefore have to clarify, including by requesting additional information from the issuing authority, pursuant to Article 16 of Law No. 69 of 2005, what procedural and/or investigative acts are to be carried out with the presence of the person requested to be surrendered, and whether his presence, is indispensable for the continuation of the proceedings or for the purposes of prosecution and the impossibility of ensuring, according to the rules of the Croatian trial, its celebration without the physical presence of the defendant on the premises. Indeed, only such a determination will make it possible to clarify whether the European Arrest Warrant conforms to the paradigm outlined in Article 1(1) of Framework Decision 2002/584/JHA and to examine fully the complaint made by the applicant.
3. On the basis of these findings, the appeal must therefore be upheld and the judgment under appeal must be set aside with referral to another section of the Court of Appeal of Venice to provide the clarifications indicated above.
P.Q.M.
Annuls the order under appeal and remands to the Court of Appeal of Venice for reconsideration. Sends to the clerk's office for compliance with Article 22 paragraph 5 Law No. 69/2005 Decided on August 20, 2024. The President-Extendor