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Italian in absentia conviction: mutual legal assistance request regarding detention order and effective knowledge (Trieste Corut, 23/1/23)

24 January 2023, Trieste Court

The service to a lawyer of an execution order instructing him to "collect some documents," not even accompanied by any evidence as to whether and when later the lawyer had actually delivered the documents in question to the person concerned (which, in any case, even if it had happened would have concerned the relations between a Romanian lawyer and his client, which is anything but a formal service) cannot ground a finding of forfeiture of the right to file the petition to reopen a in absentia trial within 30 days of that service.

That is, there being no reason to be able to argue that that document had been served, albeit by rogatory, in compliance with formalities that can be qualified as equivalent to a personal service, that is, such as to provide in any case certain and verified proof of B's knowledge of the enforcement title and therefore of the judgment mentioned therein, as well as of the date on which this took place and from which the time limit established under penalty of forfeiture is assumed to run.

COURT OF TRIESTE
CRIMINAL SECTION
N. SIGE 2022/382
order dd. 23/01/2023

Judge Dr. Giorgio Nicoli

in the enforcement proceedings brought by BIA, born **/1991 in ** (Romania ) in order to the enforcement title Judgment Court of Trieste 05/10/2015 irrevocable 4/10/2016 currently detained c/o Rome Prison House - Regina Coeli, with application dep. 30/11/2022 in the Clerk's Office of this Office on 06.09.2021 with which it is attached the lack of knowledge of the process concluded with the judgment cited

The proceedings being joined, indicated in the epigraph with the object, the same petition or different petition with respect to which the object of this decision is prejudicial

Having heard at today's hearing the prosecutor and defense counsel

OBSERVES

The appellant BIB, who is currently detained for this case in execution of the enforcement order Judgment Court of Trieste 05/10/2015 irrevocable 4/10/2016 by which he was sentenced in absentia to a term of one year and eight months of imprisonment for the crimes referred to in Art. 55 co. 9 d. lgs. 231/2007 (now Art. 493-ter c.p.) committed between 4/12 and 7/12/2009 in Trieste.

Sentence originally conditionally suspended, with subsequent revocation of the benefit by order dd. 19/03/2018 of the Court of Trieste, issued at the request of the PM ex art. 168 paragraph 1 n. 2 cp.

This, on the assumption of being entered in the record, against the aforementioned, a sentence of application of penalty ex art. 444 et seq. cpp of the Court of Turin 23/10/2010 irr. 10/12/2010 for the crime referred to in articles 624-625 cp committed in Turin on 10/22/2010 (six months of imprisonment and €400.00 fine, sentence suspended.

By provv. dd 5/02/2021 the PM ordered the execution of the Sentence that is the subject of this incident of execution.

B was arrested on 4.11.2022 in Romania, in execution of European Arrest Warrant based on said enforcement order, and extradited to Italy 01.12.2022.

The plaintiff insta to be declared the non-enforceability of the title and to be returned within the terms to appeal against this judgment, pursuant to art. 175 cpp in the text before L. 67/2014, applicable ratione temporis, alleging that he never had knowledge of the proceedings until the time of his arrest in Romania (4/11/2022) and the notification of the enforcement order in question.

The defense retraced in detail the elements (all documented in the court file) considered to be foundational to the petition, as summarized below.

It is noted first of all that the defendant had never elected or declared domicile in the proceedings.

The notice ex art. 415 bis cpp was nevertheless served on him at his residence address at the time, and yet not at his own hands but at the hands of his brother BF who in fact signed the card.

This criticality of the phase pursuant to art. 415 bis cpp would, moreover, have been perpetuated in all subsequent acts, in particular determining the defendant's non-effective knowledge of the vocatio in judicium, given that the notice of the preliminary hearing was served at that same address, being returned after 6 months for completion of deposit.

- Similarly, the decree ordering the trial was served on B by deposit at the Turin Municipal House after the person concerned had not been found by the postal worker at his residential address.

In the trial, B had therefore been proceeded in absentia and, as a result, the defendant had been declared untraceable for the purpose of service of the extract in absentia of the sentence of conviction, which, moreover, was imposed with the benefit of probation and therefore the conditions for its execution had not been fulfilled.

As already mentioned, the benefit de quo was revoked on 19/03/2018, and even in said incidental proceedings it appears to have proceeded in the unavailability of B (as per the report of vain searches dd. 15/03/2018).

With regard to the revocation of the suspended sentence, the defense also notes (submitting the profile to a further petitum which is, moreover, ontologically subordinate to the outcome on the main petition and which, given the absorbing decision, will not be dealt with) that it was ordered on the sole assumption that the two convictions carried carried, cumulatively, entailed a sentence of more than two years' imprisonment.

Of which the illegitimacy is pointed out, given that at the time of both facts that were the subject of the two convictions B was less than 21 years old, so the relevant limit for taking advantage of the suspended sentence (art. 163 paragraph 3 cp) was two years and 6 months, therefore higher than the measure of the total sentence imposed on the defendant, with the two pronouncements.

So, this sequence implied in the defense thesis, that B would only have become aware of the proceedings, and therefore of the conviction founding the enforcement order when he was arrested in Romania in execution of the EAW.

Such being the elements pointed out in support of the petition (a further profile discussed, moreover concerning the verification of the timeliness of the present appeal, will be dealt with infra), as already mentioned they all materially correspond to the findings of the records.

The petition is undoubtedly well-founded.

It is not disputed that art. 175 cpp in its relative formulation prior to Law 67 of 2014 should be applied to the procedural affair, having proceeded in the case according to the discipline of default.

In this sense, Sects. U, Sentence No. 36848 of 17/07/2014 Rv. 259992 ruled that, while the institution of rescission of the judgement, referred to in Art. 625-ter cpp, applies only to proceedings in which the absence of the defendant has been declared pursuant to Art. 420-bis cpp, as amended by Law No. 67 of April 28, 2014, to contumacious proceedings defined according to the regulations prior to the entry into force of the indicated law, the discipline of restitution within the time limit for lodging an appeal dictated by Article 175, paragraph 2, cpp in the previous text continues to apply.

Therefore, paragraphs 1 and 2 of Article 175 cpp in that wording are reproduced:

175. Return within the time limit. - The prosecutor, private parties and defense counsel shall be returned within the time limit set under penalty of forfeiture, if they prove that they were unable to observe it due to unforeseeable circumstances or force majeure. The request for return within the time limit shall be filed, under penalty of forfeiture, within ten days from the day in which the fact constituting fortuitous event or force majeure ceased to exist.

2. If a default judgment or decree of conviction has been rendered, the defendant shall be returned, upon his or her request, within the time limit for lodging an appeal or opposition, unless he or she has had actual knowledge of the proceedings or order and has voluntarily waived his or her right to appear or to lodge an appeal or opposition. To this end, the judicial authority shall make all necessary verifications.

On this provision, the Sections U, in Judgment No. 28912 of 28/02/2019 Rv. 275716, intervened, establishing the following principle of law:

For the purposes of restitution within the time limit for challenging the default judgment pursuant to Article 175, paragraph 2, of the Code of Criminal Procedure , in the formulation prior to the amendment made by Law No. 67 of April 28, 2014, the actual knowledge of the proceedings must refer to the charge contained in a formal measure of "vocatio in iudicium" so that the knowledge of the charge contained in the notice of conclusion of the preliminary investigation cannot be considered as such, it being understood that the defendant must not have waived the right to appear or to appeal or must not have deliberately evaded such knowledge.

Of the said principle, in the case under consideration here, the second part is not relevant, since it was proven by tabulas - it was seen - that B had not been validly served even the notice pursuant to art. 415 bis cpp, delivered at his brother's hands, without the defendant having ever elected/declared domicile or having ever been requested to do so, which made it necessary to serve the document at his own hands.

And thus the procedural passages passed in review imply.

either on the one hand a situation qualifying for what was last noted, below the threshold of knowledge of the proceedings discussed in that hermeneutic conflict resolved by the SS.UU.

or on the other hand a convergence in attesting that B never had actual knowledge of the vocatio in judicium

this with respect to an assumption annexed by the party, on which contrary proof of lack of actual knowledge is incumbent on the prosecuting AG (see the principles transposed by the ruling Corte EDU, November 10, 2004, Sejdovic v. Italy, and so articulated in U.S. 36848/2014 i.e., that the restitution-in-time rules applicable to the case introduced

- the unconditional right to restitution in time to challenge the judgment rendered in absentia;

- the possibility of denying it only in the event of positive proof of "actual" knowledge of the proceedings or order).

In the statement of defense is also discussed and should therefore be examined here, a further profile, mentioned in the order of the Court of Appeals dd. 21/12/2022 by which the petition proposed by B, aimed at obtaining the rescission of the judgment in relation to the same title that is the subject of the present incident of execution, had been deemed inadmissible.

In truth, that decision was based on the principle referred to above, established by Sect. U, Sentence no. 36848 of 17/07/2014 Rv. 259992, regarding the non-applicability of the rescission of the judgment provided for by articles 625 ter and 629 bis cpp to facts, such as the one at issue, in which art. 175 cp in the text before Law 67/2014 is applied.

Ad abundantiam the CoA had moreover remarked on the considered tardiness of the application (to be submitted under penalty of forfeiture within 30 days), to this end valorizing the notification, on 16/12/2020 of the order of execution by rogatory to the lawyer TMA of ** , indicated in the acts of that Romanian Court as "authorized to withdraw acts by B lonut Alin, on the basis of an attached power of attorney.

The defense, in this regard

o points out that (as in fact can be found from the documents see doc. 13 doc. dif) said power of attorney to the Romanian lawyer expressly indicates that it does not contain any signature of the client, moreover enclosing the receipt of the fee paid to lawyer T by the brother of defendant BO

o deduces from this that, at most, it would have been the latter who invested the Romanian lawyer, there being no evidence, on the other hand, that the defendant would have issued a power of attorney, nor even that he would then have been informed of the acts in question

o documents, producing copies of the relevant pay slips that during that period (2/12/2020- 19/01/2021) the defendant, as in previous periods in past years, was in Australia where he was working

o also produces statement made to a notary and with sworn translation, by BM, grandmother of the defendant in which she states:

"In the context in which my grandson was searched by the police organs at the end of 2020, in order to deliver him some documents, not having been found, I received the suggestion to turn to a lawyer to receive such documents. I say that I did not know in which part of Australia the said BIA is located, nor the contents of the correspondence that was to be picked up at the Court House in RV, County V. So, I proceeded to contact the TA lawyer to ask her to pick up the correspondence. I knew the lady lawyer because she represented the interests of another family member, which is why I approached her, without giving her any power of attorney regarding the collection of the correspondence addressed to the addressee BIA, My nephew, BIA, never came into possession of the correspondence, due to having gone to Australia and could not return because of the lockdown due to Covid 19 and I did not have his telephone contact."

It is held that-even beyond the factual circumstances held by the defense to be inimical to finding in that notification of the execution order evidence that the defendant was ever actually made aware of it-the factual and legal prerequisites are lacking to consider it established that from that notification (nor thereafter, until B's extradition to Italy) had validly begun to run the thirty-day period for filing an application for restitution in terms.

Regardless of the procedures in force in Romania, it is inescapable that that notification to an attorney merely charged with "collecting documents," just a power of attorney whose proof that B had personally issued it (since it lacks a signature) is even lacking per tabulas, not even accompanied by any evidence as to whether and when later on the lawyer in question had actually delivered the documents to B. T in question had actually delivered the documents in question to the interested party (which, in any case, when it had occurred would have concerned the relations between a Romanian lawyer and the client, which is anything but a formal notification) cannot substantiate a finding of forfeiture from filing the application within 30 days of that notification.

Forfeiture which - it is worth recalling - presupposes proof that the party being sanctioned has had actual knowledge of the act and 30 days have elapsed since that date.

So, apart from the statement of B's grandmother and the documentation indicating that throughout that period the defendant was working in Australia, what is relevant is the lack of positive proof of the assumption founding such a forfeiture, say the lack of certain and verifiable elements of any kind to support it.

That is, there being no reason to be able to argue that that document had been served, albeit by rogatory, in compliance with formalities that could be qualified as equivalent to a personal service, that is, such as to provide in any case certain and verifiable proof of B's knowledge of the enforcement order and therefore of the judgment mentioned therein, as well as of the date on which this took place and from which the time limit established under penalty of forfeiture is assumed to have run.

On the other hand, militates in the same sense the express provision contained in art. 175 paragraph 2 bis cpp (still in force for restitution in terms related to absence) right that "in the case of extradition from abroad, the time limit for the presentation of the request runs from the delivery of the convicted person."

This provision, of obvious direct relevance to the case at hand, seems to close the circle in the sense that the defendant has timely filed the request at issue, not only in the absence of certain proof of his prior actual knowledge of the measure but, in addition, it being provided that if - as was the case with B - the person is extradited from abroad, the date of delivery represents the moment, so to speak typified, for the time limit at issue to run.

It should therefore be declared the non-enforceability of the Trieste Court Judgment 05/10/2015 irrevocable 4/10/2016, with the consequential rulings set forth in the operative part, including the restitution of the appellant in terms to appeal against the aforementioned judgment.

P.Q.M.

Having regard to art. 670 c.p.p. in rel to art. 175 cpp in the text in force before L. 67/2014 in upholding the incident of execution

- DECLARES the non-enforceability of the Judgment of the Court of Trieste 05/10/2015 irrevocable 4/10/2016, pronounced in absentia against BIA, born **/1991 in ** (Romania ) currently detained c/o Casa Circondariale di Roma - Regina Coeli

- SUSPENDS the execution of the enforcement order given by the aforementioned judgment;

- ORDERS the immediate release of BIA, born **/1991 if not detained for another cause

- ORDER the renewal of the notification to the defendant of the default excerpt of the judgment Court of Trieste 05/10/2015, irrevocable 4/10/2016 c/o the domicile elected c/o Vittorio Pesavento law firm of the Court of Turin

- RETURNS BIA ** within the time limit to file an appeal against the aforementioned judgment

- SENDS to the Chancery for the immediate communication of this order to the appellant, the PM, the defense attorneys Pesavento of the Turin Bar and Canestrini of the Rovereto (TN) Bar, as well as to the Management of the Rome - Regina Coli Prison House and other customary communications.

Trieste, January 23, 2023

THE ENFORCEMENT JUDGE

dott. Giorgio Nicoli