On the subject of jurisdictional relations with foreign authorities, if, following a European arrest warrant, the extradited person is to be subjected to the execution of concurrent sentences considered as a whole in a cumulative measure, the execution itself cannot include the custodial sanction relating to a sentence for which the conditional suspension of the sentence has been approved with a previous sentence relating to offences not included in the European arrest warrant, even if subsequently revoked.
The speciality principle in EAW cases operates in the executive phase as well and prevents the extradited person, in the absence or pending supplementary extradition, from being subjected to a restriction of liberty, as a result, for example, of the cumulation of a sentence for facts other than those for which extradition was granted.
SUPREME COURT OF CASSATION
FIRST CRIMINAL SECTION
judgment 02/12/2010 filed 14/01/2011, n. 734
Composed of Messrs:
Dr VECCHIO Massimo - President
Dott. BONITO Francesco - rel. Councillor
Dott. BARBARISI Maurizio - Councillor
Dott. CARTA Adriana - Consigliere
Dott. CAPRIOGLIO Piera M.S. - Councillor
has delivered the following
on the appeal brought by:
1. M.A., BORN ON (OMISSIS);
against order no. 236/2009 GIP TRIESTE COURT of 22/03/2010;
after hearing the report by Counsel Dr FRANCESCO MARIA SILVIO BONITO;
read the conclusions of the Public Prosecutor, Dr CEDRANGOLO Oscar who asked for the rejection of the appeal.
Course of the proceedings - Grounds for the decision
1. By order of 22 March 2010 the GIP of the Court of Trieste, insofar as it is of interest in the present proceedings, rejected the application made by M.A. to have the sentence imposed by the Pretore of Latisana, by judgement of 25.3.1992, excluded from the cumulation of concurrent sentences of the Trieste Public Prosecutor's Office of 13.10. 2009, including it, following the revocation of the relative conditional suspension ordered by the judge of the execution on 3.6.2009 and, therefore, at a time subsequent to the European arrest warrant, not granted for that conduct, which took place on 22.1.2009 for the execution of concurrent sentences amounting to five years and two months of imprisonment referred to the order of execution of the Public Prosecutor of Trieste of 2.10.2007. 1.2 The Public Prosecutor filed a motivated written indictment, concluding for the rejection of the appeal on the ground that the speciality clause should have been raised with the appeal against the judicial order of revocation of the conditional suspension of the sentence, taken by the GIP on 3.6.2009.
2. The appeal is well founded.
The principle of speciality, already sanctioned by Article 14(1) of the European Convention on Extradition of 13 December 1957, ratified by Act No. 300 of 30 January 1963, and provided for by Article 721 of the Code of Criminal Procedure was reaffirmed by Art. 32 of Law no. 69 of 22 April 2005, on "Provisions to bring domestic law into line with Framework Decision 2002/584/JHA of the Council of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States", whereby "the surrender of a wanted person is subject to the limits of the principle of speciality, with the exceptions provided for, in relation to the passive surrender procedure, by Art. 26", i.e. it is always subject to the condition that, for an act preceding the surrender and different from the one for which it was granted, the person is not subject to criminal proceedings, or deprived of his liberty while serving a sentence or a security measure, or otherwise subjected to another measure depriving him of his liberty, unless the requested person has renounced the benefit of the principle of speciality in respect of particular offences committed prior to his surrender or the Member State requests that the person be subjected to a different measure coercive of liberty and the foreign State gives its consent.
The interpretation of this principle has always been in the sense that the principle of speciality also operates in the executive phase and prevents the extradited person, in the absence or pending supplementary extradition, from being subjected to a restriction of liberty, as a result, for example, of the cumulation of a sentence for facts other than those for which extradition was granted (see Court of Cassation 18.9.1997, Riccucci; Court of Cassation 4.10.1993, Lauro; Court of Cassation 28.2.2006 no. 9145, rv. 233943) or in any case of any subsequent measure that renders a sentence executable, as in the case in point, where the revocation of the conditional suspension of the sentence rendered executable the sentence of the Latisana Magistrate's Court which, although pre-existing, was conditionally suspended and became executable only as a result of the measure now under appeal, issued while the applicant was in Italy as a result of the European arrest warrant for facts different from and subsequent to those judged in the sentence in question. The executive procedure, intended to render enforceable in Italy the sentences imposed for facts prior to and different from those for which the applicant's surrender to Italy had been granted, had therefore to be suspended, pending the possible supplementary extradition, which, moreover, as far as it appears, has not even been put forward.
As regards, finally, the arguments put forward by the Prosecutor. As regards, finally, the arguments put forward by the Public Prosecutor in the case, contrary to the above conclusions, the Court observes that the finality of the order revoking the conditional suspension of the penalty does not in any way prevent opposition in executivis against the execution of the accumulation of concurrent sentences that took account of that revocation, since the measures in question, the revocation and the execution of the accumulation with the concrete consequence that, in the present case, the revocation maintains its legitimacy intact, but in the absence of the supplementary extradition procedure, i.e. the European arrest warrant, it cannot, it is understood, produce any effect in terms of the execution of the sentence in application of the principle of speciality as explained above.
2.1 In conclusion, in relation to the case submitted to the panel's deliberation, the following principle of law may be affirmed
"On the subject of jurisdictional relations with foreign authorities, if, following a European arrest warrant, the extradited person is to be subjected to the execution of concurrent sentences considered as a whole in a cumulative measure, the execution itself cannot include the custodial sanction relating to a sentence for which the conditional suspension of the sentence has been approved with a previous sentence relating to offences not included in the European arrest warrant, even if subsequently revoked" (similarly, on the subject of extradition, Court of Cass, Sec. 5, 30/01/2002, no. 16129).
3. On the basis of the above arguments, the order under appeal must be set aside without referral limited to the petitum concerned by the present decision, namely.
the Court, annuls without referral the order under appeal limited to the inclusion in the cumulation measure of the sentence imposed on the Pretore di Latisana on 25.3.1993.
Thus decided in Rome, on 2 December 2010.
Filed at the Court Registry on 14 January 2011