The precautionary measure of house arrest does not fall within the scope of Legislative Decree No. 36 of February 15, 2016, laying down provisions to bring domestic law into line with Council Framework Decision 2009/829/JHA of October 23, 2009 on mutual recognition of decisions on "alternative measures to pre-trial detention," as this legislative decree refers exclusively to non-custodial precautionary measures.
Court of Cassation
Criminal sec. VI, hearing. Dec. 19, 2023 (filed Jan. 22, 2024), no. 2764
Held in fact
1. The appellant appealed the order in which the Court of Rome, ruling on interlocutory appeal, confirmed the rejection of the request to change the place of execution of house arrest, with which the suspect requested to be allowed to move from the community (omissis) to his home located in Spain, the country of residence of the aforementioned.
2. Against this order, the appellant formulated a single ground of appeal, in which he alleges violation of the law and failure to state reasons, with regard to the deemed actuality of the precautionary requirements and the unsuitability of being under house arrest abroad.
The appellant premises that, in the case at hand, the rules introduced by Legislative Decree No. 36 of February 15, 2016, regarding the mutual recognition of decisions on alternative measures to pre-trial detention, according to which a citizen of an EU state has the right to be subjected in his or her country of origin to the measure other than detention, should be applied (in support of this assumption, the precedent offered by Sez. 4, No. 37739 of 9/15/2021, Garcia, Rv. 281950 is cited).
Starting from the assumption that the request concerned exclusively the modification of the place where to remain under house arrest, the defense argues that the defendant's return to his home located in Spain would be irrelevant. Indeed, the Tribunal would have erroneously valued the fact that the transportation of the narcotics would have begun in Granada, given that the defendant's home is not located in that city, but rather at a considerable distance and precisely in the locality of (omissis).
Finally, it is challenged the absence of motivation with regard to the actuality of the precautionary needs, also in view of the report signed by the head of the Community where the defendant is currently confined, in which a favorable prognosis is attested with regard to the abstention from the reiteration of criminal conduct.
Considered in law
1. The appeal is unfounded.
2. The decision raises a preliminary question, concerning the identification of the scope of applicability of Legislative Decree No. 36 of 2016, having to verify whether the discipline concerning the mutual recognition of decisions on alternative measures to pre-trial detention is also applicable to house arrest.
On this issue, there is a contrast in case law: in fact, according to the majority orientation, the precautionary measure of house arrest can be enforced in the EU member state of residence of the person concerned, as this measure falls within the scope of Council Framework Decision 2009/829/JHA of October 23, 2009 on the application, between EU member states, of the principle of mutual recognition of decisions on "alternative measures to pre-trial detention" and d. Legislative Decree No. 36 of February 15, 2016, containing provisions to bring domestic law in line with that decision, since it is a measure that, by imposing the obligation to remain in a specific place, falls within the cases referred to in Article 4(c) (of the aforementioned legislative decree (Sec. 4, No. 37739 of 9/15/2021, Garcia, Rv. 281950-01; Sec. I, No. 8864 of 3/2/2022, Pocev, Rv. 282756).
The pronouncements in favor of this solution, take their starting point from a broad interpretation of the expression "pre-trial detention" used by Framework Decision 2009/829/JHA, in light of the objectives pursued by it, and in particular that expressed in Recital No. 5, according to which: "With regard to the detention of persons subject to criminal proceedings, there is a risk of unequal treatment between those who reside and those who do not reside in the trial state: the person who does not reside in the trial state runs the risk of being placed in pre-trial detention, where a resident would not. In a common European area of justice without internal borders, it is necessary to take appropriate measures so that a person subject to criminal proceedings who is not a resident of the trial state does not receive different treatment from the person subject to criminal proceedings who is a resident there."
Thus, it is argued that by limiting the notion of "pre-trial detention" to prison custody only, thus excluding house arrest (consequently falling under the "alternative measures to pre-trial detention" governed by the implementing rules of the Framework Decision), compliance with the objective set by the Union with the Framework Decision is ensured, avoiding the discrimination based on residence that would be realized, on the other hand, if it were considered that it would never be possible to order the measure of house arrest against the resident of a different State of the Union, with no address on the Italian territory, dealing with "precautionary detention".
Applying this principle, it would follow that the national court, when choosing the precautionary measure to be applied, cannot deny an alternative measure to prison detention - including that of house arrest - on the mere assumption of the absence of an enforcement address on the national territory, because the availability of an address in another State of the Union, in which the person concerned is rooted, is equivalent to the availability of an address in Italy.
Only in the event that the State where the person concerned is rooted refuses to supervise the execution of the measure, for one of the reasons set forth in Article 15 of Framework Decision 2009/829/JHA, may the Italian court consider the person concerned to have no address for the execution of an alternative measure to detention, and order accordingly.
2.1 According to the minority orientation, on the other hand, the precautionary measure of house arrest does not fall within the scope of Legislative Decree No. 36 of February 15, 2016, containing provisions to bring domestic law into line with Council Framework Decision 2009/829/JHA of October 23, 2009, as this legislative decree refers exclusively to non-custodial precautionary measures (Sec. 3, No. 26010 of 29/4/2021, Syski, Rv. 281937).
To this conclusion, the Third Section reached by valuing the literal fact of Article 4 of Legislative Decree No. 36 of 2016, which outlines the scope of the decree which "... applies applies applies to the following precautionary measures: (a) obligation to notify any change of residence, in particular in order to ensure receipt of a summons to appear at a hearing or in court in the course of criminal proceedings; (b) prohibition from frequenting certain places, places or areas in the territory of the issuing or executing state; (c) obligation to remain in a specified place, possibly at specified times; (d) restrictions on the right to leave the territory of the state; (e) an obligation to report at specified times to the authority indicated in the imposing order; (f) an obligation to avoid contact with certain persons who may be in any way involved in the crime for which criminal proceedings are being prosecuted; and (g) a temporary ban on engaging in certain professional activities."
In particular, Article 4(c) of Legislative Decree No. 36 of 2016, in contemplating the obligation to remain in a specific place, would clearly refer to the obligation to stay, which also provides for the possibility of imposing an obligation not to leave the residence during certain hours of the day.
3. The latter solution, although in the minority at present, must be considered preferable, for a plurality of reasons inferable both from the codictic structure and from the coordination between Legislative Decree No. 36 of 2016 with the regulations on the European arrest warrant.
3.1. Taking the codictic legislation as a starting point, it is crucial to highlight how Article 284, paragraph 5, of the Italian Criminal Code provides for the equalization of house arrest with custody in prison, thus underscoring the substantial equalization of the two measures, which, moreover, is also inferred from the identical sanctioning discipline applicable in the case of evasion, according to the provisions of Article 385, paragraph 3, of the Italian Criminal Code.
In our system, therefore, the two precautionary measures in question diverge essentially because of the different place where the restriction of personal freedom is implemented, except that the effects are the same.
In the absence of a regulatory provision expressly providing for the application of Legislative Decree No. 36 of Feb. 15, 2016, to the measure of house arrest as well, the equivalence between this measure and custody in prison established generally by the Code of Rites must be deemed to prevail.
This is also supported by the literal and systematic interpretation of the provision contained in Article 4(c) of Legislative Decree No. 36 of 2016, where it refers to alternative measures to detention involving the obligation to remain in a specific place, possibly at set hours.
The aforementioned provision, in fact, appears to be fully compatible with other precautionary measure and, precisely, with the obligation to stay, with respect to which there may also be an additional obligation not to leave the home at certain times of the day.
On closer inspection, the aforementioned provision is perfectly in line with the regulation of the obligation to stay in the home dictated by Article 283 of the Criminal Procedure Code, rather than with that provided in reference to house arrest by Article 284 of the Criminal Procedure Code. The latter norm, in fact, does not contemplate the obligation to stay in a "determined place," but rather imposes permanence in the dwelling, a term by which reference is made to a much narrower and more delimited notion than that of "determined place," which normally coincides with the municipal area.
In essence, it must be considered that just as the procedural code distinguishes the obligation to stay in the home from house arrest, providing for the former the obligation to stay in an extended territorial area (municipality or, at most, specific fraction), a similar notion has also been transposed in d. lgs. no. 36 of 2016, there where it does not mention the obligation to stay in the dwelling, but in a "determined place," thus using a notion perfectly referable to the provision of art. 283 cod. proc. penal, rather than to that governing house arrest.
3.2. Similar considerations, moreover, also apply in relation to the provision contained in Framework Decision 2009/829/JHA, there where in Article 8(c) it indicates among the measures contemplated the obligation to remain in a specified place, possibly at specified times. There is, therefore, a full coincidence between the Framework Decision and the national transposing legislation, with no reference in any of them, not even implicitly or indirectly, to the intention to include in the measure of the obligation to remain in a specified place, also house arrest.
3.3. Moreover, even if one were to value a systematic interpretation of the legislation, it seems clear that the measure of house arrest would be eccentric with respect to the remaining precautionary measures certainly contemplated in the Framework Decision and Legislative Decree No. 36 of 2016.
The precautionary measures indicated by Article 8 of the Framework Decision and Article 4 of Legislative Decree no. 36 of 2016, are all homogeneous with each other, covering: (a) an obligation to notify any change of residence, particularly for the purpose of ensuring receipt of a summons to appear at a hearing or in court in the course of criminal proceedings; (b) prohibition from frequenting certain places, places, or areas in the territory of the issuing or executing state; (c) an obligation to remain in a specified place, possibly at specified times (d) restrictions on the right to leave the territory of the state; (e) an obligation to report at specified times to the authority indicated in the imposing order; (f) an obligation to avoid contact with certain persons who may be in any way involved in the crime for which criminal proceedings are being prosecuted; and (g) a temporary ban on engaging in certain professional activities.
Therefore, these are all precautionary measures that are characterized by imposing limitations on personal freedom, but certainly not deprivation of it, which, on the other hand, constitutes the basis of the house arrest measure and is the underlying reason why this measure is equated with pre-trial detention in prison.
3.4. The final argument of a systematic nature, which argues in favor of the thesis that house arrest is not among the measures that can be enforced abroad, must be deduced from the overall structure of the discipline of the restriction of personal freedoms in the EU context, as provided for in the legislation on the European Arrest Warrant.
Under l. April 22, 2005, No. 69, in fact, active and passive surrender relations between European judicial authorities are implemented through the use of the European Arrest Warrant.
In particular, in the case of an active surrender procedure requested by the Italian authority, Article 28 l. April 22, 2005, no. 69 expressly establishes the applicability of the European Arrest Warrant not only in the case in which the Italian judge has ordered custody in prison, but also if the measure to be executed is that of house arrest.
To hold that Legislative Decree No. 36 of 2016 also applies to house arrest would result in a blatant inconsistency and overlap with the rules on the active procedure of surrender by European arrest warrant.
In fact, if as a result of the application of the measure of house arrest against a citizen of a European state residing abroad, the execution of the measure in the state of residence would be allowed, there would be no reason for the express provision, for this hypothesis, of the active surrender procedure.
In essence, the legislation on the arrest warrant and that on the recognition of orders in pre-trial matters necessarily require coordination, in order to avoid undue overlapping, which can be achieved exclusively by holding that the arrest warrant applies in cases where the recipient of the measure of pre-trial detention or house arrest resides abroad and, in order to be subjected to the measure, its surrender to the State of issuance of the restrictive measure is necessary.
On the other hand, for all the remaining precautionary measures covered by Legislative Decree No. 36 of 2016, the execution does not require delivery to the state of issuance of the measure, as it can be executed abroad.
Therefore, the proposed interpretation determines a full complementarity between the regulations on the arrest warrant and those on the recognition of precautionary measures to be executed abroad, avoiding undue overlaps.
As proof of this, it should be noted how this Court has clarified that in the case of a request for a European arrest warrant for the execution of the measure of house arrest, the judge, before issuing the measure, must verify whether in the requested State the house measure is provided for among the precautionary instruments, in order to avoid that, in the pending surrender, the requested State applies to the person concerned a measure more afflictive than the one to be executed in Italy (Sez. 3, no. 35879 of 28/6/2016, Castillo, Rv. 267524). This statement further demonstrates how, in the case where the measure to be enforced is that of house arrest, the permanence abroad of the subject requested for surrender is excluded, so much so that the verification with regard to the existence of the measure of house arrest in the foreign legislation is aimed exclusively at preventing the subjecting, during the delays in the surrender procedure, to a more onerous measure.
Finally, it should be noted that the doctrine that has dealt with this issue also tends to believe that Legislative Decree No. 36 of 2016 performs a complementary function to the European Arrest Warrant, to which the regulations on restrictive measures, including precautionary measures, of personal freedom are referred. The complementarity with l. April 22, 2005, no. 69 emerges in several points of Framework Decision 2009/829/JHA, starting with the possibility of using the arrest warrant to ensure "the due course of justice and, in particular, the appearance of the person concerned at trial" (see recital no. 12); the prevalence of the arrest warrant is also reiterated in the subsequent recital no. 13 and, in Art. 15(1)(h), for the purposes of refusing recognition.
4. In the face of the above logical-systematic arguments, it is considered that the objection put forward on the basis of the contrary orientation is recessive.
Proponents of the thesis that the measure of house arrest would also be enforceable abroad base this assumption on the alleged risk of unequal treatment, between Italian citizens and citizens of other European states, in the event that the latter could be denied house arrest in view of the unavailability of a home.
Indeed, this is an eventuality that does not depend on a regulatory deficiency, but rather on specific factual conditions that, on closer inspection, can also arise with respect to the Italian citizen.
The unavailability of a suitable place where he can remain under house arrest is a hostile factor that applies to anyone, regardless of his nationality and residence.
It could be argued that the citizen of another state residing abroad will hardly have the availability of a home in Italy, which would justify the broad interpretation of Legislative Decree No. 36 of 2016.
On the subject of the choice of the appropriate measure to meet the considered precautionary needs, the application of the precautionary measure of custody in prison is legitimate in the event that the judge considers that the dangerousness of the subject to be subjected to precautionary measures can be neutralized through the application of house arrest, but the aforementioned subject does not have a suitable domicile for this purpose (Sec. 2, no. 3429 of 20/12/2012, dep. 2013, Di Mattia, Rv. 254777).
It has also been affirmed that for the purposes of substituting the measure of pre-trial detention with that of house arrest, it is the burden of the interested party without a home (in this case, because he or she has no fixed abode in the territory of the State), to provide all the necessary indications regarding the concrete availability of one of the places of execution indicated by Art. 284, paragraph 1, cod. proc. pen, with the consequence that, in the absence of these, the review court, as it lacks investigative powers, can legitimately reject the request for the application of the least afflictive form of precautionary measures even in the presence of a prognosis of a sentence not exceeding three years' imprisonment (Sec. 3, no. 41074 of 09/30/2015, Rv. 265048).
The aforementioned pronouncements show how the absence of a dwelling where to remain under house arrest is an issue that can arise in the context of the precautionary dynamics regardless of what is the particular condition of the foreigner and that, consequently, must be resolved by identifying a suitable alternative place, or by evaluating a different modulation of the applicable precautionary measure.
Faced with the practical difficulty of finding from an accommodation, however, the remedy cannot be found in the extension of an institution (the submission abroad of non-custodial measures) dictated with regard to precautionary measures other than house arrest, failing to consider how for measures restricting personal freedom the system expressly provides for recourse to the discipline of the European arrest warrant.
5. In conclusion, the principle must be affirmed that the precautionary measure of house arrest does not fall within the scope of Legislative Decree No. 36 of February 15, 2016, laying down provisions to bring domestic law into line with Council Framework Decision 2009/829/JHA of October 23, 2009, as this legislative decree refers exclusively to non-custodial precautionary measures.
It follows that the appeal is unfounded, given that the very prerequisite for invoking house arrest at the appellant's residence in Spain is lacking.
The dismissal of the appeal is followed by an order that the appellant pay the costs of the case.
P.Q.M.
Dismisses the appeal and orders the appellant to pay court costs.