In order to rescind an Italian in absentia judgment, defendant's ignorance of the Italian criminal proceeding and trial has to be blameless: the knowledge of the existence of the proceedings, even if proven in relation to a very initial stage of the same, generates a burden of diligence that is also expressed in the duty to maintain contact with the defense attorney (whether of trust or Court appointed).
Under Italian law, a in-absentia-convicted defendant may obtain the rescission of the judgment, if she/he proves that the absence is due to an non culpable lack of knowledge of the trial: art 629 bis Italian criminal procedure code rules that it's the convicted person who must prove that 1) she/he had no knowledge of the trial, and 2) that the lack of knowledge was not due to her/his fault.
SUPREME COURT OF CASSATION
FOURTH CRIMINAL SECTION
(date of hearing 21/02/2023) 29/03/2023, No. 13051
On the appeal brought by:
A.A., born on (Omissis);
against the order of 05/30/2022 of the COURT OF APPEALS of BOLOGNA;
heard the report delivered by Counsel ANNA LUISA ANGELA RICCI; read the conclusions of the PG who
requested the dismissal of the appeal.
Course of the proceedings - Grounds for the decision.
1. The Court of Appeals of Bologna by order filed on June 6, 2022 rejected the 'application for rescission of the res judicata presented by A.A., with reference to the judgment of the Court of Rimini of November 7, 2019 irrevocable on May 26, 2020 included in the measure of execution of concurrent sentences issued by the Public Prosecutor's Office of Rimini and based on the assumption that the notification of the decree of summons to the defendant had been made to the domicile elected at the public defender with whom he had never had contact.
2. The condemned man appealed against the order through his defense counsel, formulating a single plea in which he alleged violation of the law and failure to state reasons. The defense counsel complains that the Court of Appeals, in holding that in the case at hand there was no proof that the 'defendant had no knowledge of the proceedings and that in any case there was positive evidence that any lack of knowledge of the trial was not due to his blameless ignorance, would have gone contrary to the principles dictated by SS UU ruling no. 23948 of Nov. 28, 2019, according to which for the purposes of the declaration of absence, the mere election of domicile at the public defender's office by the 'suspect cannot be considered a suitable prerequisite, since the court must also verify that there has been the actual establishment of a professional relationship between the domiciliary lawyer and the 'suspect, such as to suggest with certainty that the latter had knowledge of the proceedings or voluntarily evaded the same. In the order under appeal, the court had exalted, for the purpose of proof of knowledge, a series of indices pertaining exclusively to the preliminary investigation stage and the content of the charge, and not also, as would have been necessary, pertaining to the holding of the trial.
3. The Attorney General's Office, in the person of Deputy Giuseppina Casella, filed written conclusions in which she asked that the appeal be dismissed.
4. The appeal should be declared inadmissible for lack of specificity.
5. Pursuant to Article 629 bis of the Code of Criminal Procedure, in the wording in force at the time of the pronouncement of the appealed order (prior to the amendment introduced by Legislative Decree No. 150, Article 37, Paragraph 1, effective December 30, 2022, Decree-Law No. 162, October 31, 2022, formerly Article 6), the convicted person with a final judgment against whom there has been an absence for the entire duration of the trial may obtain the rescission of the judgment, if he proves that the absence is due to an innocent lack of knowledge of the celebration of the trial.
By express legislative provision, therefore, it is the convicted person who must prove not only that he had no knowledge of the holding of the trial, but also that such lack of knowledge was not due to his fault.
6.The territorial court held that there was no evidence in the record that the 'defendant did not have knowledge of the proceedings and that instead there was positive evidence that any and undisputed lack of knowledge was not due to blameless ignorance. To this end, the court noted that:
- on June 19, 2014, at 1:30 a.m., A.A., had been subjected to a personal search and on that occasion had received all the notices required by law, because he was allegedly responsible for an aggravated theft committed a few hours earlier; the search had been successful, as the credit and ATM cards contained in the stolen purse and the receipts for purchases made by A.A., using those very means of payment, had been found in the possession of the present appellant-and therefore seized;
- on June 20, 2014, at 1:45 a.m., A.A., had been fully identified at the Caserma dei
Carabinieri Miramare di Rimini, as he was formally under investigation for the crime of aggravated robbery; on the occasion of the identification, A.A., had been invited to appoint a defense counsel and
elect/declare domicile for notifications: in the absence of a fiduciary appointment, he had been assigned a court appointed defender, Avv. RT; in the impossibility of declaring domicile, as he was without a fixed abode, and warned that in the absence of election/declaration of domicile all notifications would be made by delivery of a copy to the defender, A. A. had elected an address for service with the public defender; on the same occasion he had been notified of the name and contact details (address and telephone number) of the public defender assigned to him, Adv. RT; he, on the other hand, had not provided any way of being traced, nor a telephone number;
- the court appointed defender, who had turned out to be present at all times during the trial at first instance, held in the absence of A.A., had never represented that he had no relations with his client and, on the contrary, had requested his examination;
- in the petition for rescission there was no mention of the absence of contact of the lawyer RT, with the then defendant, nor had been deduced any circumstances to prove that A.A. was not able to contact the court appointed defender, to establish and maintain a relationship with the latter and, therefore, to inform himself about the course of the proceedings.
On the basis of these elements, the Court of Appeals rejected the request for rescission, pointing out that the 'defendant had not proved the absence of guilt in the lack of knowledge of the process and indeed that the availability by A.A., of the address and address of the defender who had been assigned to him should be considered indicative of his gross negligence with respect to the knowledge of the procedural event.
The contested decision is in accordance with the 'guideline according to which blameless ignorance should not be assessed in relation to individual acts of the procedural progression, since knowledge of the existence of the proceedings, even if proven in relation to a germinal stage of the same, generates a burden of diligence that is also expressed in the duty to maintain contact with the defender (whether of trust, or court appointed). A different interpretation - which implies the presumption that only in the case of appointment of a lawyer of trust can be considered knowledge of the procedural acts addressed to the 'defendant who at the former has elected domicile, while the acts served at the public defender, despite the election of domicile, could not be considered equally known - would lend itself, according to this orientation, to the easy abuse of the process, being able in this way the 'interested party differently to act according to the outcome of the trial, even taking advantage of the passage of time and its impact on the statute of limitations (Sez. 4 No. 10238 of 03/03/2020, Rv. 278648).
7. The appeal under review merely reiterated the same generic argument already put forward in the rescission petition, based on the service of the summons on the domiciliary public defender (insufficient according to the dictum of SS UU no. 23948 of November 28, 2019, Ismail to ground the declaration of absence pursuant to art. 420 bis c.p.p.), and did not confront the argumentative path adopted by the Court. In particular, the appellant again reiterated that he did not have knowledge of the vocatio in iudicium (summon), but nothing was deduced, as would have been necessary, regarding the circumstance that the lack of knowledge was not due to his negligence. In this last respect, to the argument used in the contested order that the convict, after being stopped, searched and informed of the 'investigation against him in relation to the crime of aggravated theft and improper use of credit cards, had elected an address for service with a public defender whose contact information was provided to him, the appellant has not objected and has not responded to the blameless lack of knowledge of the trial.
8. The declaration of inadmissibility of the appeal is followed by an order that the appellant pay the costs of the proceedings. Taking into account the Constitutional Court's ruling No. 186 of June 13, 2000, and noting that there is no indication that the appellant is not ver S a s if at fault in the determination of the reason for inadmissibility, it must be ordered, pursuant to Article 616 of the Code of Criminal Procedure, to pay the sum of Euro 3,000.00 to the Cassa delle Ammende, a sum thus determined in consideration of the reasons for inadmissibility.
Declares the appeal inadmissible and orders the appellant to pay the costs of the proceedings and the sum of Euro 3,000 in favor of the Cassa delle Ammende. simplified reasoning.
So decided in Rome, February 21, 2023.
Filed in the Court Registry on March 29, 2023.