For the purpose of the surrender in an investigative European arrest warrant, a request for surrender may be executed with respect to a person charged with a crime in order to proceed to his or her interrogation, given that Art. 6, paragraph 1, lett. c), of Law No. 69 of 2005 allows recourse to the procedure in question with reference to any measure of a coercive nature issued by the judicial authority of the issuing State, whatever the reasons, provided that they are inherent to the trial; no proportionality check by executing judicial authority.
Corte di Cassazione
Criminal sec. II No. 46577 Year 2022
President: DIOTALLEVI GIOVANNI Rapporteur: AGOSTINACCHIO LUIGI
Court of Cassation - unofficial copy
On the appeal brought by:
MAP born in Poland on **/1985
Against the judgment delivered on 10/24/2022 by the COURT of APPEALS of MILAN.
Examined the documents, the contested order and the appeal, dealt with by
Hearing the report made by Councilor Luigi Agostinacchio;
heard the Public Prosecutor, in the person of Deputy Attorney General Giulio Romano, who requested the dismissal of the appeal.
HELD IN FACT
1. By judgment issued on 24/10/2022, the Court of Appeal of Milan, ruling on remand from the Court of Cassation, ordered the surrender to the Polish judicial authority of APM in execution of the European Arrest Warrant issued on June 12, 2019 by the Court of S for the crime referred to in Article 294, par. 1, of the Polish Criminal Code (receiving stolen goods), aggravated under Article 294 of the same code, due to the significant asset value of the assets in question.
2. The rescinding pronouncement, rejecting all other grounds of appeal, had found well-founded the profile pertaining to the non-observance or erroneous application of the criminal law, in relation to Article 5 TEU, Articles 6, 7, 52 CDFUE, Articles 5-8 ECHR, and the lack of motivation regarding the violation of the principle of proportionality by the Polish authority in issuing the European arrest warrant against M.
In particular, recalling the principles governing surrender procedures between member states, it was pointed out there that the Polish judicial authority had issued the European Arrest Warrant "for the purpose of conducting the investigative proceedings underway at the District Prosecutor's Office in S," with the consequence that the restraining order appeared to have been issued for investigative needs (moreover unspecified in content and time) without any reference to the subsequent prosecution, contrary to the provision of Article 1(1). 1, of Framework Decision 2002/584/JHA and with the principles established by the jurisprudence of legitimacy about the inadmissibility of a European arrest warrant for exclusively investigative and indeterminate reasons; the annulment, therefore, was determined by the noted uncertainty about the investigative needs underlying the adoption of the European arrest warrant and the consequent need to clarify, through the request for additional information to the issuing authority, pursuant to Art. 16 of Law No. 69 of 2005, what investigative acts were to be carried out with the presence of the person requested to be surrendered, and whether his presence was indispensable for the continuation of the proceedings for the purpose of prosecution.
2.1 The referring judge, therefore, through the competent office of the Ministry of Justice, had acquired the supplementary information from the District Prosecutor's Office in S, concluding in the sense that the arrest warrant did not respond to "exclusively investigative" needs but rather to reasons of an eminently procedural nature and that M's presence was necessary in order to enable him to be taken in for questioning and to exercise his right of defense, in the absence of other means capable of fulfilling this purpose and, therefore, in the impossibility of otherwise continuing the proceedings.
3. Against the judgment handed down on remand, the defendant's defense counsel appealed again.
With a single ground of appeal it is alleged that the criminal law was not complied with or was erroneously applied, in relation to Article 5 TEU, Articles 6, 7, 52 CDFUE, Articles 5-8 ECHR, Article 627 of the Code of Criminal Procedure, as well as the apparent motivation on the failure to comply with the principles highlighted by the rescinding ruling, persisting violation of the principle of proportionality by the Polish authority in issuing the European arrest warrant against M.
Indeed, the Milanese court had not examined whether the need to obtain M's participation in investigative acts could have been achieved by less intrusive instruments of European cooperation and, in particular, by means of the issuance of a criminal investigation order, stating in this regard, in censorious terms, that it was not within its competence to enter into the merits of the reasons for the choice of the instrument deemed appropriate by the requesting authority, an investigation which, on the other hand, it was up to it to verify whether the principle of proportionality was actually complied with in the specific case. Moreover, from the same information acquired, it was clear that the European Arrest Warrant had been issued for investigative needs, completely detached from a future prosecution, since these were activities relating to the preliminary investigation (the making of a notification and the carrying out of the interrogation): the notification could be made under Art. 5(1) and (2) of the Convention of May 29, 2004, implemented by Italy and Poland, on Mutual Assistance in Criminal Matters between the Member States of the European Union; the interrogation could also take place by means of a European Order of Criminal Investigation (0E1), by hearing by videoconference, an instrument expressly provided for by recitals 24 and 26 and indicated as preferable to the issuance of an EAW.
In any case, the trial could be held in absentia, as provided for in Polish criminal law, in view of the fact that M was answering the charges at large.
At today's hearing, the appellant's defense counsel Avv. Nicola Canestrini requested a postponement due to legitimate impediment, documenting the concurrent defense commitment at the Trento Court of Appeals, following a warrant received on December 2, 2022 from a person in detention.
CONSIDERED IN LAW
1 It must be premised that in an order attached to the hearing record, the reasons for the rejection of the application for deferment of hearing were stated.
On the merits, the appeal is unfounded.
In fact, the scope of the deferral judgment was limited to the verification of the conditions legitimizing the issuance of the European Arrest Warrant from the standpoint of compliance with reasons of an eminently procedural nature and not exclusively investigative.
The investigation that was to this end imposed by the rescindent ruling consisted of the request for supplementary information to the issuing authority, pursuant to Article 16 of Law No. 69 of 205, on the investigative acts to be carried out with the presence of the person requested to be surrendered; moreover, whether his presence was indispensable for the continuation of the proceedings or the prosecution.
2. In the judgment under appeal, the Court of Appeals reports on the performance of this supplementary activity, which consisted of two requests for information, also following the defense's remarks; the feedback received is reported in the text of the order and must be considered exhaustive with respect to the object of investigation in the sense that they contain the necessary and sufficient cognitive elements for the decision.
Indeed, the S District Prosecutor's Office certifies that "in accordance with the criminal procedure in force in the Republic of Poland, the decision on the wording of the charges must be notified to the suspect by reading, which the suspect personally confirms by affixing his or her handwritten signature to the document, and that it is also necessary...to collect his or her statements on the circumstances raised by the prosecution"; "the absence prevents the continuation of the investigation" in the sense that "it will not be possible to file a charge with the competent court and conduct proceedings leading to a decision on it."
3. Thus, this is a complex activity that consists not only of the notification of the charge to the suspect, but of a set of formalities involving the presence of the suspect - for reading the charges, signing the document, requesting clarifications, including written ones, making statements in defense - and which are on the whole considered by the criminal procedure in force in the Republic of Poland to be a real condition of prosecution, thus capable of affecting the prosecution and the very possibility of instituting the trial before the judicial authority in the trial court.
It appears irrelevant that Polish law permits - as claimed by the defense - the trial in absentia, since there is no reason to doubt that for the specific charge under consideration i.e. the type of crime that is the subject of the indictment, the indicated activity is necessary to enable the Prosecutor's Office to request the competent court to hold the trial against M.
4. The judgment under appeal also adequately motivates with regard to compliance with the principle of proportionality.
Indeed, the territorial court pointed out that this was a temporary arrest warrant, aimed at the procedural needs pointed out in the clarifications sent.
Moreover, the Court of Cassation has already held, precisely with reference to a similar situation concerning the Republic of Poland, that in the matter of a European arrest warrant, a request for surrender may be executed with respect to a person charged with a crime in order to proceed to his or her interrogation, given that Art. 6, paragraph 1, lett. c), of Law No. 69 of 2005 allows recourse to the procedure in question with reference to any measure of a coercive nature issued by the judicial authority of the issuing State, whatever the reasons, provided that they are inherent to the trial (Cass. sez. 6, sent. no. 43386 of 11/10/2016 - dep. 13/10/2016 - Rv. 268305).
Finally, with reference to the less intrusive measure of the European Investigation Order, the requesting authority rejected M's related request, with an order that became final following his failure to appeal to the Court of Last Instance, with arguments in line with the clarifications provided, reiterating the necessity, for procedural purposes, of the suspect's presence at the local prosecutor's office for the indicated activities.
5. The dismissal of the appeal determines, pursuant to Article 616 of the Code of Criminal Procedure, that the appellant be ordered to pay the costs of the proceedings.
Dismisses the appeal and orders the appellant to pay the costs of the proceedings.
Sends to the Clerk's Office for the fulfilments of Article 22, paragraph 5, Law No. 69/2005.
Thus decided in Rome on November 29, 2022.
The Extending Counselor The President