Access to so-called "plea bargaining" precludes a foreign defendant, who does not know the Italian language, from objecting to the nullity resulting from the failure to translate a part of the case file.
The agreed plea bargain, which under Italian law results in an agreement about the punishment (for example lenght of conviction), postulates the waiver of any nullity, other than those pertaining to the plea bargaining request and the consent given to it, because said nullities, if they occurred, must be considered overcome by the agreement between defense and prosecution (plea-bargain), precluding the possibility for a non Italian speaking defendant to object to the nullity deriving from the lack of translation of part of the procedural documents, also because precisely the free choice of the plea bargain procedure lets the defendant presuppose effective knowledge of the content of these documents and full respect of the right of defense.
The right to the assistance of an interpreter does not automatically derive from the "status" of a foreigner or stateless person, but requires the further indefectible presupposition of the ascertained inability to understand the Italian language.
The failure to translate the judgment into the language known to the non Italian speaking defendant does not constitute a nullity case but, if there has been a specific request for translation or this has been ordered by the judge, the time limits for appeal run from the moment when the grounds of the decision has been made available to the defendant in the language he understands and, therefore, the ground of appeal deduced on the point has the sole effect of allowing the regularization of any omission and putting the defendant back on time.
In the absence of specific elements indicative of an impairment with regard to the full explication of the right of defense, the failure to translate the plea bargaining sentence in a language known to the non Italian speaking defendant does not in itself integrate cause for its nullity, given that after 2017 the defendant has no longer the right to personally file a cassation appeal.
There is no obligation, in favor of the non Italian speaking defendants, to translate the summon for hearing for the definition of plea bargaining, if the latter results from the request of the trustworthy defender with special power of attorney, not configuring in this case any harm to the right of defense.
(unofficial translation)
COURT OF CASSATION
FOURTH CRIMINAL SECTION
(ud. 17/12/2021) 22-12-2021, no. 46852
Dr. FERRANTI Donatella - President, Dr. PICARDI Antonio reporting Judge
JUDGMENT
On the appeals brought by:
B.M., born on (OMISSIS);
S.M., born on (OMISSIS);
against the judgment of June 28, 2021 of the TRIBUNAL of PAVIA;
heard the report delivered by Judge Dr. FRANCESCA PICARDI;
read the conclusions of the Prosecutor General.
Course of the proceedings - Grounds for the decision.
1. The Court of Pavia, in a judgment pursuant to Article 444 of the Code of Criminal Procedure, at the concurrent request of the parties, sentenced B.M. and S.M. to 3 years and 8 months' imprisonment and a fine of €1,000.00 for numerous crimes of multiple aggravated theft.
2. B.M. and S.M., through defense counsel, filed an appeal for cassation, complaining: 1) violation of Article 143 Code of Criminal Procedure, Article 178 Code of Criminal Procedure, lett. c, in relation to Article 24 Const, in that, although they were not able to understand the Italian language perfectly, they were not assisted by an interpreter and the sentence was not translated to them into Romanian or another language known to them; 2) the lack, contradictoriness and manifest illogicality of the grounds of the sentence, which, in some sections, is incomprehensible, having been drafted by hand, and, in any case, completely lacking in arguments regarding the failure to apply Article 129 of the Code of Criminal Procedure.
3. The Attorney General's Office at the Court of Cassation concluded that the appeals were inadmissible.
4. The appeals are inadmissible, given that the complaints made that the sentence was not translated into a language comprehensible to the defendant and that the reasoning was defective, do not fall within those allowed today under Article 448 of the Code of Criminal Procedure, paragraph 2-bis, in the new wording, according to which the prosecutor and the defendant may propose only those grounds pertaining to the expression of the defendant's will, the defect of correlation between the request and the judgment, the erroneous legal qualification of the fact and the illegality of the punishment or security measure.
5. With regard to the first censure, it should be pointed out that the appeal does not clearly and explicitly show that the alleged procedural violation affected the free determination of the defendants and the expression of their will.
It should, moreover, be recalled that jurisprudential orientation according to which access to the so-called "plea bargaining" precludes the foreing defendant, who does not know the Italian language, the possibility of objecting to the nullity resulting from the failure to translate a part of the procedural documents (Sec. 2, no. 6575 of 02/02/2016 cc. - dep. 18/02/2016, Rv. 266198 - 01).
This arrest, formed prior to the recent reform, which limited the grievances that can be brought, remains confirmed today.
The agreed application of punishment postulates the waiver of any nullity, other than those pertaining to the plea bargaining request and the consent given to it, because said nullities, if they occurred, must be considered overcome by the agreement reached between the parties. The judgment of the application of the sentence must, in fact, be considered disengaged from the specificity of the procedural forms in the course of which it was grafted. From this it follows, with specific reference to the case under consideration, that access to the alternative rite of the so-called "patteggiamento" (plea-bargain) precludes the possibility for a non Italian speaking defendant to object to the nullity deriving from the lack of translation of part of the procedural documents, also because precisely the free choice of the plea bargain procedure lets the defendant presuppose effective knowledge of the content of these documents and full respect of the right of defense.
It must, moreover, be added that, on the subject of translation of acts, pursuant to Article 143 of the Code of Criminal Procedure, as amended by Legislative Decree No. 32 of 2014, the right to the assistance of an interpreter does not automatically derive from the "status" of a foreigner or stateless person, but requires the further indefectible presupposition of the ascertained inability to understand the Italian language (Sez. 2, no. 30379 of 19/06/2018 ud.- dep. 05/07/2018, Rv. 273246 - 01). This assumption was inferred in the appeal in a vague and imprecise manner and not self-serving, as neither transcribed nor attached were the trial documents from which it would emerge.
Finally, it should be reiterated that the failure to translate the judgment into the language known to the non Italian speaking defendant does not constitute a nullity case but, if there has been a specific request for translation or this has been ordered by the judge, the time limits for appeal run from the moment when the grounds of the decision has been made available to the defendant in the language he understands and, therefore, the ground of appeal deduced on the point has the sole effect of allowing the regularization of any omission and putting the defendant back on time (Sec. 2, No. 45408 of 17/10/2019 ud. - dep. 07/11/2019, Rv. 277775 - 01).
Judgment Sec. 5, no. 32878 of 05/02/2019, Molla, Rv. 277111 - 02, has, moreover, clarified that, on the subject of the translation of acts, in the absence of specific elements indicative of an impairment with regard to the full explication of the right of defense, the failure to translate the plea bargaining sentence in a language known to the non Italian speaking defendant does not in itself integrate cause for its nullity, given that, after the amendment of Article 613 of the Code of Criminal Procedure, by Law No. 103 of June 23, 2017, the defendant no longer has the right to personally file a cassation appeal.
The same judgment has, also, affirmed that there is no obligation, in favor of the non Italian speaking defendant, to translate the decree of setting the chamber hearing for the definition of plea bargaining pursuant to Article 447 of the Code of Criminal Procedure, if the latter results from the request of the trustworthy defender with special power of attorney, not configuring in this case any harm to the right of defense.
6. The inadmissibility of the appeal, attributable to the fault of the appellants (Constitutional Court sentence no. 186/2000), follows the condemnation of the same to pay the costs of the proceedings and, since there are no reasons for exoneration, a sum, which is congruously determined in three thousand euros in favor of the Fine Fund.
P.Q.M.
Declares the appeals inadmissible and orders the appellants to pay the court costs and the sum of three thousand euros each in favor of the Fine Fund.
Thus decided in Rome, December 17, 2021.
Filed at the Court Registry on December 22, 2021.