Agreement on trade and judicial cooperation between UK and EU has a detailed, self-sufficient and complete structure on the cooperation model that the parties intended to implement and on the discipline that the EU Member States are required to apply in case of request of surrender of a wanted person by the United Kingdom.
Arrest warrants from the UK are formally governed by the provisions of the Agreement; when provisions are lacking, national law implementing FD 584/2002 shall apply.
(non official automatic translation)
SUPREME COURT OF CASSATION
Judgment, (ud. 24/08/2021) 16-09-2021, n. 34466
Consisting of the Honorable Justices:
Dr. ZAZA Carlo - Chairman -
Dr. GENTILI Andrea - Councilor -
Mr. DI GIURO Gaetano - Counselor - Mr. CENCI Daniele - Counselor.
Dott. CENCI Daniele - Counselor - Dott.
Dr. SILVESTRI Pietro - Rel. Councillor -.
pronounced the following:
on the appeal brought by:
D.S.D., born in (OMISSIS);
against the sentence issued on July 15, 2021 by the Appeal Court of Milan;
having heard the report of the Counselor, Pietro Silvestri;
having read the conclusions of the Deputy Attorney General, Dr. Di Leo Giovanni, who concluded by requesting that the appeal be declared inadmissible.
Facts of the case
1.The Court of Appeal of Milan ordered the surrender to the judicial authorities of the United Kingdom of Great Britain of D.D.S., arrested on 10/06/2021 in execution of a trial arrest warrant issued on 30/03/2021 by the same judicial authority for the crimes of criminal association aimed at aiding and abetting illegal immigration and for encouraging the commission of the crimes aimed at, allowing the organization to use his vehicle.
2. The defense counsel for the accused has appealed for cassation, putting forward five reasons.
The premise from which the appellant moves is that the case under examination concerns an arrest warrant issued by a country that is no longer part of the European Union and whose regulations are not to be found in Law no. 69 of April 22, 2005, nor in the European Convention on Extradition signed in Paris on December 13, 1957, ratified by Law no. 300 of January 30, 1963.
The regulations of the warrant whose execution is requested, it is argued, would instead find its normative reference in the Agreement on trade and judicial cooperation, which came into force on May 1, 2021, signed directly by the Parliament of the European Union with the United Kingdom (from now on Agreement).
The Agreement, which dedicates the third part to judicial cooperation, while regulating the conditions for the issuance of the arrest warrant, does not contain provisions on the procedure to be observed by a Member State of the Union to decide on the execution of the arrest warrant issued by the United Kingdom and, therefore, on the request for surrender.
In particular, the Agreement would not contain rules on: a) the means of appeal against the decision issued by the judicial authority of the executing State; b) the time limits within which an appeal may be lodged; c) the powers of review granted to the Territorial Court; d) the procedure for the filing of documents by the issuing State.
2.1. On the basis of these assumptions, the first plea asks the Court to request a preliminary ruling from the Court of Justice of the European Union, pursuant to art. 111 of the Constitution, 267, letter a), Treaty on the Functioning of the Union, 47 European Convention on Human Rights, regarding the interpretation of the provisions contained in the Agreement on Trade and the indication of the procedural rules applicable to the cases governed by it.
It should be pointed out that the lack of rules on appeal procedure would have meant that the appellant would have had to appeal to the Court of Cassation pursuant to art. 111 of the Italian Constitution.
The situation created would imply first of all a violation of art. 2 Protocol 7 of the European Convention on Human Rights, according to which the exercise of the right to have a guilty plea examined by a higher court - including the grounds on which it may be exercised - is governed by law.
According to the appellant, only the European Court of Justice could temporarily fill the legal vacuum in question, since the law on the European Arrest Warrant could not be applied in this case, as the Court of Appeal wrongly did, given the fact that the United Kingdom of Great Britain is a third party and not part of the European context and the prohibition of analogy that also applies in Community law.
A preliminary ruling by the European Court of Justice would also be necessary in light of the principle set forth in art. 6 of the ECHR, in order to guarantee the protection of fundamental rights.
2.2. With the second reason it is deduced violation of procedural law for not having applied the "internal" discipline and, in particular, art. 696 c.p.p., paragraph 3.
The thesis is that in the case in point, art. 696, paragraph 2 of the Code of Criminal Procedure, relating to relations between States other than members of the European Union, which refers to "the norms of international conventions in force for the State and the norms of general international law", could not be applied, because the exchange agreement stipulated with the United Kingdom would be incomplete, and instead art. 696, paragraph 3 of the Code of Criminal Procedure would be applicable, and therefore the norms of the Code of Criminal Procedure relating to jurisdictional relations with foreign authorities.
The contested sentence is flawed because the Court did not carry out any assessment regarding the correct application of the internal regulations on extradition and because it applied the rules of the European arrest warrant (reference is made to the collation of the proceedings, the invitation to the defense to lodge an appeal for cassation within the term of five days, i.e. the term provided for by Law no. 69 of 2005, as amended by Legislative Decree no. 10 of February 2, 2021).
The application of art. 696 c.p.p., paragraph 3, would instead have required the observance of a series of guarantee profiles, in reality completely omitted, such as the possibility of requesting the documents underlying the arrest warrant and evaluating the sources of evidence of the measure, the guarantee of cross-examination on the merits of the charges, the evaluation of serious indications of guilt, the possibility of appealing to the Court also for defective motivation, a different deadline for appeal.
2.3. With the third reason complains violation of art. 705 c.p.p., for not having been evaluated the existence of serious indications of guilt in relation to the crimes charged to the appellant.
This is a ground which has a residual scope compared to the previous ones and which is based on the assumption that extradition is regulated in this case on a conventional basis, i.e. on the basis of the Agreement; it is assumed that also in this case the requested State should make an assessment on the existence of the elements against the extradited person according to art. 705 c.p.p..
In this sense, it is argued, the report sent by the United Kingdom would be completely vague and also the documentation received would be generic; of the forty-two points reported by the British Public Prosecutor, thirty-six relate to other subjects and the one relating to the applicant would not express elements against him.
In particular, there would not be any element demonstrating the participation of the suspect in the association in the period under dispute (1.5.2018-31.7.2019), but, rather, there would be a series of elements, punctually indicated, demonstrating the circumstantial non-existence of participation in the association, made to descend, it is claimed, only from the alleged commission of a fine crime.
In this sense, the Court would have valued: a) the presence of the applicant in England at the time of the facts; b) the circumstance that the applicant would have been in contact with Dr., i.e. with a person who would have played a leading role within the association; c) the fact that the applicant had stayed at a certain farm, considered to be the sorting place of illegal immigrants.
According to the defense, however, Dr. was investigated after the sending of the arrest warrant for D.S.D. and the Court of Appeal's assessment of this report in terms of accusation would have been made only after the statements of the same surrender; not otherwise, the judgment would be flawed in the part relating to the stay in the farm indicated, an element, this, which would not find any evidence and would have been "invented" (so the appeal) by the Court.
As for the objection under b), also in this case the description and the serious indications of guilt would be missing: the van would have been placed at the disposal of persons with whom the appellant had no interaction for only three times, and the prosecution's statement would have been built by exploiting only the episode occurred in the night between (OMISSIS), in which it would have been ascertained the presence of the appellant in the vicinity of the farm, mentioned above, who was supposed to transport some Vietnamese citizens to London, once they had arrived at the farm; a transfer then not carried out due to the death of the latter due to asphyxia on the way from Belgium to the United Kingdom.
The accusation is that the appellant should have played the role of driver and this inference would derive from the fact that the appellant's phone would have lit up three times inside the truck. 2.4. The fourth plea alleges infringement of the law in relation to Article 604 (c) of the Agreement on Trade and Judicial Cooperation.
The issue concerns the decision of the Court of Appeal not to request information from the United Kingdom on the prison where D. will be held, thus exposing him to the risk of inhuman or degrading treatment.
The Court wrongly considered that there were no concrete elements to prove the risk in question, but it did not take into account the defence's allegations and, in particular, the documentation concerning a decision of the Dutch judicial authority that had refused the extradition of a British citizen to the United Kingdom precisely because of the prison conditions, ascertained following information requested from the British authorities.
2.5. The fifth plea alleges infringement of the law for failure to apply Article 3 ECHR and Article 524 of the Agreement on Trade: the Court did not adequately assess the health risk to which the applicant would be subjected in case of surrender, in a period of global pandemic due to Ciovid-19 and, therefore, for not having requested information in this regard from the UK authorities.
Grounds for the Decision
1. The appeal is on the whole unfounded.
2. The first two pleas, which can be assessed together, are unfounded.
2.1. With regard to the relations between the United Kingdom of Great Britain and the European Union it is necessary to briefly reconstruct the regulatory framework.
The United Kingdom and the European Union concluded on January 24, 2020 a Withdrawal Agreement, which sets out the conditions for the United Kingdom's withdrawal from the Union, in accordance with Article 50 of the Treaty on European Union.
This Agreement entered into force, pursuant to Article 185, first paragraph, on February 1, 2020 (see Note on the Entry into Force of the Agreement on the Withdrawal of the United Kingdom from the European Union, published in OJEU, L. of January 31, 2020), after the completion of the approval procedure, and, as of that date, the United Kingdom is no longer a member state of the European Union, becoming a third country.
The entry into force of the Withdrawal Agreement marked the end of the period referred to in art. 50 E.U. and the beginning of an agreed transitional period, scheduled to last until December 31, 2020, aimed at enabling the parties to reach an agreement on their future relations.
To this end, the Withdrawal Agreement has laid down provisions for the application during this transitional period in respect of the United Kingdom of the instruments of the EU, including those regarding judicial cooperation in criminal matters (Title V, articles 62 et seq.).
As of January 10, 2021 - thus at the end of the transitional period and the application of the transitional legislation contained in the Withdrawal Agreement - the Agreement, approved on December 24, 2020, on trade and cooperation between the European Union and the United Kingdom came into force on a provisional basis.
This Agreement also contains provisions of transitional law, establishing in Article 632 (formerly Article LAW.SURR.112) (Application to existing European Arrest Warrants), that the new rules it provides for apply "to European Arrest Warrants issued, in accordance with Council Framework Decision 2002/584/JHA, by a State before the end of the transitional period if the wanted person has not been arrested in execution of the warrant before the end of the transitional period."
As stipulated in Article 783 (Entry into force and provisional application), the parties have agreed to apply this Agreement provisionally from January 10, 2021 until April 30, 2021 (see Decision No. 1 of February 23, 2021 of the Partnership Council, published in Official Gazette No. 33 of 2021).
As of May 1, 2021, therefore, provisional application ceased with the Agreement's definitive entry into force (see Council Decision No. 689/2021 of April 29, 2021, published in O.J. No. L. 149 of April 30, 2021).
The Agreement was concluded on the basis of art. 217 of the Treaty on the Functioning of the European Union (TFEU), which provides for the unanimous approval of the Member States of the European Union in the Council and the approval of the European Parliament.
As the Agreement relates to matters of exclusive competence of the European Union and, as it is not a so-called mixed agreement, it does not require ratification by each member state of the Union in accordance with their respective constitutional provisions, with the consequent need for ratification by national parliaments.
Since its entry into force, the framework of relations between the European Union and the United Kingdom is therefore regulated by the new Agreement on trade and cooperation as well as the Withdrawal Agreement which has regulated for the future some legal situations connected to the participation of the United Kingdom in the European Union.
2.2. On the basis of the legal framework described above, it is therefore not in dispute that the arrest warrant in question - for which the applicant was arrested on 10/06/2021 - is formally governed by the provisions of the Agreement.
The Agreement establishes the basis for a wide-ranging relationship between the European Union and the United Kingdom, entailing reciprocal rights and obligations, joint actions and special procedures, and is distinguished by the fact that it does not concern a third country that intends to join the Union, but a country that has withdrawn from it.
The Agreement is based on provisions that guarantee equal conditions and respect for fundamental rights; the preamble opens with the affirmation of the common "commitment to democratic principles, the rule of law, human rights, the fight against the proliferation of weapons of mass destruction and the fight against climate change, which constitute essential elements of this Agreement".
It is well founded to affirm, as the first commentators have done, that an examination of the structure of the Agreement reveals the underlying purpose, i.e. to protect the interests of the European Union, to ensure conditions of fair competition and to continue collaboration in areas of interest and to establish preferential regimes in areas such as trade in goods and services, digital trade, intellectual property, public procurement, aviation and road transport, energy, fisheries, coordination of social security systems, cooperation of law enforcement and judicial authorities in criminal matters.
The violation of any of these essential elements allows the parties to denounce and suspend, in whole or in part, the application of the Agreement.
The Agreement is based on three fundamental pillars: an agreement of free trade and collaboration in economic, social, environmental and fishery matters; close collaboration regarding the security of citizens; and a general framework of governance.
Therefore, the Agreement constitutes a solid basis for long-term cooperation which is much broader than traditional free trade agreements, since the basis of cooperation between the United Kingdom and the Member States of the Union is undoubtedly at an objectively high level, particularly as regards the area of freedom, security and justice.
2.3. With regard to the protection of the data of European and British citizens, given that the United Kingdom will no longer have direct access to EU data, the exchange of data will continue on the new bases offered by the Agreement itself, both with regard to airline passenger data and to the matters already covered by the 2005 Prum Intergovernmental Treaty (essentially focused on the exchange of data on fingerprints, DNA and stolen vehicles), which subsequently became part of the EU acquis.
Cooperation with Europol and Eurojust, agencies of which the United Kingdom ceases to be a direct member, will also continue, albeit on a renewed basis; in particular, according to the provisions of Title VI of the Agreement, dedicated to relations with Eurojust, the United Kingdom will be able to second a contact point and a liaison prosecutor to the EU agency, with its own assistants, while Eurojust will be able to send its own liaison magistrate to London.
The Court of Justice of the Union, however, is not involved in the resolution of disputes, except when they concern Union programs in which the United Kingdom participates.
As regards the area of judicial cooperation in criminal matters, the Agreement provides for mutual legal assistance in criminal matters, including the freezing of assets and cooperation in combating money laundering and the financing of terrorism and cooperation in the field of cybersecurity.
With regard to the surrender of wanted persons, it has been correctly pointed out by several parties that there has been no judicial Brexit; the position of third State certainly excludes the United Kingdom from continuing to participate in the area of freedom, security and justice of the European Union, but the Agreement imposes on the United Kingdom and the Member States of the Union to continue to respect democracy and the rule of law, as well as to protect the fundamental rights protected under the European Convention on Human Rights (ECHR) and in this sense deserves to be noted the provision according to which such cooperation may be mutually suspended in the event that the United Kingdom or any Member State of the Union denounces the ECHR or some of its protocols (notably the first, sixth or thirteenth).
It is undoubtedly true, therefore, that the United Kingdom no longer participates in the instrument of the European Arrest Warrant, which regulates, as claimed by the applicant, only the mutual relations between the Member States of the Union, and however, as noted in a shared way by the doctrine, the Agreement, providing a level of cooperation never before experienced with a third country, allows, as will be better said, the delivery of wanted persons in a short time on the basis of assumptions and conditions predetermined evoking the model of the European Arrest Warrant, avoiding the traditional extradition mechanisms.
In this sense, art. 629 of the Agreement is relevant, which expressly provides that "Without prejudice to their application in relations between States and third countries, the provisions contained in this title shall replace, as of the date of entry into force of this Agreement, the corresponding provisions of the following conventions applicable in the field of extradition in relations between the United Kingdom, on the one hand, and the Member States, on the other", including "a) the European Convention on Extradition, signed in Paris on December 13, 1957, and its additional protocols...".
In particular, Title VII of Part Three of the Exchange Agreement aims to guarantee a system of extradition between the member states, on the one hand, and the United Kingdom, on the other, based on assumptions, conditions and principles that find their constitutive reference in a measure (the arrest warrant) that complies with the terms of the title in question (Art. 596).
A detailed regime of surrender is outlined, in which the matter and the final decision continues to be attributed - and to remain reserved - only to the competent judicial authorities of the States, without substantial interference from the Ministers and, more generally, from the political authorities.
A different system that is not the same as the one designed by the framework decision of 2002, in which an explicit centrality is assigned to the principle of proportionality, the subject of a specific opening provision (art. 597), which is fully included in the criteria that oversee the decision on surrender and imposes taking into account the rights of the wanted person, the interests of the victim, the seriousness of the fact, the probable penalty imposed, the possibility that a State adopts less coercive measures than the surrender of the wanted person, and this in order to avoid unnecessarily long periods of pre-trial detention.
A system that provides a detailed discipline on the scope of application and the prerequisites for issuing the arrest warrant (art. 599), on the content and form of the arrest warrant (art. 606), on the modalities of transmission (607-608), on the obligatory and optional reasons for not executing the warrant (art. 600-601), on the rights of the wanted person (art. 609- 610- 612- 617), on the exceptions of citizenship and of the political nature of the crime (art. 602- 603), on the decision on surrender (art. 613 and following), on the terms and modalities of the surrender (art. 621 and following), on the right to deduct the period of custody served in the State of execution.
It is therefore well founded to state that, following the entry into force of the Agreement in relations between the European Union and the United Kingdom, the discipline of the European arrest warrant has been replaced by a new model of cooperation which has an autonomous legal basis - that contained in Title VII of the Agreement - but which provides for a regime of surrender of wanted persons substantially modelled on that provided for in terms of the European arrest warrant.
A model of cooperation based on the principle of mutual trust and mutual recognition, on direct and bilateral collaboration between judicial authorities, on the clear distancing from procedural models that prevent the implementation in a short time and the effectiveness of the new legal model of delivery, on the commitment to respect the European Convention on Human Rights.
In this sense, the choice of the Italian legislator to attribute to the Court of Appeal the competence "for the execution of an arrest warrant" is important and justified, thus clarifying once again, if there was any need, that the Agreement does not provide for any intervention by the political authorities on this point.
A model of cooperation which, precisely because of this constitutive presupposition, obliges the parties to the Agreement to execute the arrest warrant, unless the aforementioned trust is lacking due to the existence of one of the hostile reasons provided for by the Agreement; otherwise, the non-execution of an arrest warrant would constitute a unilateral suspension of the provisions of the Agreement itself.
A common regulation for the surrender of accused or sentenced persons, as a form of direct judicial cooperation, which presupposes for the countries adhering to the Agreement the respect of the principles and fundamental rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms.
The "high level of trust" gives rise to a presumption that the requesting State provides adequate guarantees, but does not exempt the judicial authority of the executing State from the necessary and prodromal verifications for the surrender.
2.4. In this articulated framework of reference, the first two grounds of appeal reveal their groundlessness.
The assumption of the appellant is that the aforementioned Agreement is incomplete, at least in the part relating to the procedure for adopting the decision on the request for surrender of the wanted person; this, it is argued, would imply, in fact, the non-application of the Agreement and, pursuant to art. 696 c.p.p., paragraph 3, the application of "the rules of the Code of Criminal Procedure Book XI" relating to the jurisdictional relations with foreign authorities", i.e. the extradition rules (thus the appeal).
On the basis of this assumption, the appellant argues in substance, the Court of Appeal of Milan and, more generally, the judicial authority of the Italian State, could order the surrender of the wanted man to the United Kingdom of Great Britain, insofar as, on one hand the subsistence of serious suspicions of guilt was verified - in the case of an arrest warrant based on a cautionary measure - also on the basis of the examination of the documents on which the arrest was based - which, in the case in point, would not exist - and, on the other hand, adopted the procedural form provided for by art. 704 and 706 c.p.p..
In this context, as mentioned above, a reference for a preliminary ruling is made to the Court of Justice of the European Union in order to obtain "the interpretation of the provisions contained in the Agreement... as well as the indication of the procedural rules applicable in the cases governed by the Agreement" (thus the appeal).
2.5. This is an assumption that cannot be shared because it aims at disapplying the Agreement that, instead, as said, has a detailed, self-sufficient and complete structure on the cooperation model that the parties intended to implement and on the discipline that the EU Member States are required to apply in case of request of surrender of a wanted person by the United Kingdom.
In this sense, it is not irrelevant how the Council of the European Union (see, The Brexit deal - Council legai service opinion, in EU Law Analysis, January 27, 2021), accepting the proposal made by the European Commission, in line with the case law of the Court of Justice (cf, Opinion 2/15 of the Court, dated May 16, 2017, on the draft free trade agreement between the European Union and the Republic of Singapore) considered that The Agreement concerns matters of exclusive competence of the Union or concurrent competence of the Union and the Member States and not purely incident to the competence reserved to the latter.
A clear choice has been made that has excluded, as mentioned, the use of the mixed agreement that would have required, instead, the ratification of the twenty-seven Member States, after the authorization of the national parliaments and, in some systems, also of the regional ones, according to their constitutional rules.
It is not unreasonable to believe that the decision not to use the mixed agreement is in some way linked to the awareness that, if this had been done, there would not have been the necessary timeframe to allow for the entry into force on January 1, 2021 of the agreements in their entirety.
A system model which, on a procedural level, amply justifies the provision of art. 613, according to which:
"1. The executing judicial authority shall decide on the surrender of the person under the terms and conditions established by this title, in particular the principle of proportionality referred to in Article 597.
2. If the executing judicial authority does not consider the information communicated to it by the issuing State to be sufficient to enable it to make a decision on surrender, it shall urgently request the necessary additional information, in particular in relation to Article 597, Articles 600 to 602, and Articles 604 and 606, and may set a time limit for receiving it, taking into account the need to comply with the time limits laid down in Article 615.
3. The issuing judicial authority may, at any time, transmit any additional useful information to the executing judicial authority".
A system that is entirely consistent, as regards the terms and modalities with which the decision to execute the arrest warrant must be taken, with the provision of Article 615 of the Agreement according to which:
"1. An arrest warrant shall be processed and executed with the utmost urgency.
2. In cases where the wanted person consents to his or her surrender, the final decision on the execution of the arrest warrant shall be taken within ten days of the communication of the consent.
3. In other cases, the final decision on the execution of the arrest warrant shall be taken within 60 days of the arrest of the wanted person.
4. In special cases, if the arrest warrant cannot be executed within the time limits referred to in paragraph 2 or 3, the executing judicial authority shall immediately inform the issuing judicial authority and state the reasons for this. In such cases, the time limits may be extended by 30 days. 5. As long as the executing judicial authority does not take a final decision on the execution of the arrest warrant, it will ensure that the material conditions necessary for effective surrender are met.
6. Any refusal to execute an arrest warrant must be motivated."
A model of cooperation which, for the reasons indicated, requires, in accordance with art. 613, par. 2, the State of execution of the warrant to ascertain not the existence of serious indications of guilt, but "only" the respect of the principle of proportionality (art. 597), the non-existence of a reason for non-execution of the warrant (art. 600- 601 - 602 - 602). 600- 601 - 602 - 604), that the arrest warrant has the requisites provided for by the Agreement (art. 606) and that only for this purpose, it gives the power to request urgently the necessary supplementary information, taking into account "to respect the terms set by art. 615" (art. 613, par.2, last part).
A system which, because of the scope of the power of investigation reserved to the executing State, requires it to process and execute the warrant "as a matter of urgency" (Art. 615(1)) and to take the final decision on execution within 60 days of the arrest of the wanted person.
The defensive assumption, according to which, since the Agreement does not expressly indicate the procedural form to be followed in order to issue the decision on the execution of the warrant, the judicial authority of the executing State should not apply the entire Agreement but fall back on the internal rules dictated for extradition, thus loses its persuasive capacity.
First of all, it is not clear why an existing, executive, wide-ranging, systemic, self-sufficient and detailed Agreement should not be implemented in order to adopt instead a judicial cooperation model, the extradition one, provided for by the Code of Criminal Procedure, which the parties to the Agreement have clearly shown on a subjective level, for all the reasons already indicated, that they do not want to implement.
From another point of view, on an objective level, it is not clear why the domestic rules on extradition, which outline a model of cooperation structurally incompatible with the one designed by the Agreement, should be applied; against a model of cooperation characterized by a high level of trust between the parties, by a direct bilateral relationship between judicial authorities, reference should instead be made to a model, the extradition model of the code, dominated by the presence of the political authority and by the very limited trust in the relationship between States, given that only this limited trust justifies the need for the Italian State to verify the existence of serious indications of guilt on which the title is based.
From a further point of view, it is not clear why, with respect to an agreement that clearly outlines the scope of the power of investigation granted to the executing state, based on the principle that the surrender of the wanted person cannot be refused unless the cases provided for by the agreement are present, we should fall back on the extradition model only because the agreement does not expressly provide for the procedural form to be followed in order to reach a decision which, however, must take place urgently and, in any case, within sixty days from the execution of the arrest.
A model of cooperation, the extradition model outlined by the Code and invoked by the appellant, which would subjectively and objectively bring about a retreat in the relations between the parties since it is substantially incompatible with the provisions of the Agreement.
Therefore, the plea is clearly unfounded insofar as it considers that the Agreement is not applicable and that therefore the Court of Appeal should have ascertained the existence of serious indications of guilt, in application of the principles dictated in the matter of extradition (the Spanish Audiencia Nacional has already expressed its opinion on the immediate application of the rules contained in the Agreement, integrated, as regards the procedural model on the times and methods of taking the decision on the execution of the warrant).
2.6. As far as the procedural profile is concerned, it is certainly true that the Agreement does not describe the procedure to be adopted to reach the decision on the execution of the warrant, but it is equally true that, in addition to providing guarantees and protection for the rights of the wanted person, it lays down a clear, fundamental principle, justified by the general context, that the warrant must be "processed" and "executed" with the utmost urgency and the final decision on execution must be taken within sixty days of the arrest of the wanted person.
A principle that binds the individual member states of the Union, which must adopt procedural models capable of ensuring application and implementation of the cardinal principle established by art. 615 of the Agreement.
Agreements are instruments governed by international law and their interpretation must be carried out in good faith, in the light of the object and purpose pursued and not, instead, on the basis of the domestic law of one or the other contracting party.
The issue then concerns the verification of whether, within the domestic legal system, there are rules which, at present, allow to implement, in the silence of the legislator, the principle of art. 615 of the Agreement and, therefore, the purpose underlying the Agreement.
On this point, it seems reasonable to believe that articles 704, 705 and 706 of the Code of Criminal Procedure, which, according to the appellant, should be applied due to the incompleteness of the Agreement, draw a procedural form that is not compatible with the need to define the procedure within sixty days from the arrest of the wanted person and that, if applied, would end up disapplying and not implementing the Agreement.
A procedural module, the one provided for by art. 704 c.p.p., designed for a different model of judicial cooperation and that, if applied, would have a taste and a value unjustifiably punitive compared to an Agreement that, beyond the difficulties that have marked the negotiations between the Parties, has a detailed content and, as mentioned, objectively inspired to trust and mutual recognition.
A procedural module, the one foreseen in the field of extradition, which, on the contrary, is justified in concrete terms - in terms of time - only because of the amplitude of the subject of the investigation entrusted to the Court of Appeal.
Therefore, excluding the reference to the norms in question, and excluding that reference can be made to the general procedural form provided for the chamber proceedings by art. 127 c.p.p., which, in any case, would not make it easy to comply with the term provided for by art. 615 of the Agreement, the Court believes that, at the present time, in the absence of a specific provision, there are no obstacles to considering that the decision on the execution of the warrant must be taken by applying the rules provided for by the Agreement and, only on a procedural level, as regards the methods and times of taking the decision, the few rules provided for by Law no. 69 of 2005 in this regard, insofar as they are compatible (articles 17-22-22 bis).
This would be an application which, contrary to the assumptions made by the defense, would
a) guarantees full implementation and effectiveness of the norms of the Agreement and, in particular, of art. 615, being the discipline in question suitable to ensure a final decision on the execution of the warrant within sixty days from the arrest of the wanted person
b) it is compatible, in relation to the few norms in question and unlike the invoked domestic norms on extradition, with the model of cooperation to which the parties to the Agreement show that they have paid attention;
c) it does not violate art. 2 protocol 7 of the European Convention on Human Rights, because it ensures the right to a double trial
d) does not conflict with Article 6 of the European Convention on Human Rights;
e) it does not even violate the prohibition of analogy, pursuant to art. 7 of the European Convention on Human Rights - evoked by the appellant, without however indicating in what way the violation of said principle would consist in this case - since it concerns the analogical application of merely procedural norms which, as will be better explained, can be attributed a general value in the matter and which do not affect the value of the principle of criminal legality and its substantial implications (cf, Constitutional Court, no. 238 of 2020) and neither do they have any relevance with respect to the criterion of the qualitative (and, a fortiori, quantitative) impact of the rule on personal freedom (Constitutional Court no. 32 of 2020).
In particular, as regards the alleged violation of the prohibition of analogy and of art. 7 of the European Convention on Human Rights, the issue concerns the identification and the boundaries of the notion of "criminal matter".
The Convention prohibits extensive and analogical interpretation with regard to the definition of the offense (see Edu Court, Coeme v. Belgium, June 22, 2000, par. 145) and of the penalty (see Edu Court, Baskaya and Okcuoglu, v. Turkey, July 8, 1999).
The Constitutional Court, in interpreting art. 25 of the Constitution, has taken into account the jurisprudence of the European Court of Human Rights on the point of identifying the offences to which the principle of legality and the guarantee of the prohibition of retroactivity of criminal law and analogy apply, clarifying how the formula "no one can be punished" refers to any measure of an afflictive nature, regardless of whether the offence is classified as criminal or not.
Provisions of a purely procedural nature, even if related to proceedings concerning criminal matters, do not fall within the scope of the prohibition of retroactivity and for them the Convention allows analogical interpretation; the rules of procedural law are in fact external to the notion of criminal matters, except in cases where they have the capacity to affect the commensuration of the penalty.
In the judgment of the European Court of Justice of 17 September 2009 in the case Scoppola v. Italy, the Court clarified that art. 7 p. 1 of the Convention is not limited to prohibiting the retroactive application of criminal law to the detriment of the accused but also establishes, in a more general way, the principle of the legality of crimes and punishments (nullum crimen, nulla poena sine lege).
Article 7 ECDU, if it prohibits in particular the extension of the scope of application of existing crimes to facts that did not previously constitute crimes, requires not to apply the criminal law to the detriment of the accused, for example by analogy.
It follows, argues the Court, that the law must clearly define the offences and the penalties which punish them; this requirement is fulfilled when the defendant is able to know, from the wording of the relevant provision and, where necessary, with the help of the interpretation given by the courts, which acts and omissions engage his criminal liability (Kokkinakis v. Greece, 25 May 1993; Sud Fondi Srl and others v. Italy, 20 January 2009).
The European Court on this occasion recalled that "the rules on retroactivity set out in Article 7 of the Convention apply only to the provisions defining offences and the penalties that punish them; otherwise, in other cases, the Court has considered reasonable the application, by the domestic courts, of the principle tempus regula actum as regards procedural laws (see, in this regard, a new regulation of the time limits for lodging an appeal, Mione v. Italy, no. 7856/02, 12 February 2004, and Rasnik v. Italy, no. 45989/06, 10 July 2007".
In continuity with this principle, the Constitutional Court, no. 32 of 2020, states that even regulations modifying in pejus the discipline of the modalities of execution of the sentence can take on substantial value and therefore be subject to the guarantees underlying the principle of penal legality; however, it is a question of norms that take on substantial value, that affect the quality and quantity of the sentence and that for this very reason modify the degree of deprivation of personal liberty imposed on the detainee.
In the case in question, the procedural rules provided for in Law no. 69 of 205, relating to the timing and manner of taking the decision on the execution of the warrant, do not have a direct impact on the definition of the crime and punishment and therefore do not pertain to criminal matters and are not subject to the prohibition of analogy under art. 7 ECHR. From another point of view, there is no doubt that the application of the procedural rules mentioned above, provided for by Law no. 69 of 2005, would take place despite the fact that the parties had foreseen, in order to regulate their relations, a temporal limit to the application of the rules provided for by the European arrest warrant.
In fact, it has already been mentioned that: a) at the end of the transitional period and the application of the transitional regulations contained in the Withdrawal Agreement, the Agreement came into force on a provisional basis; b) this Agreement also contains provisions of transitional law, establishing in art. 632 (ex art. LAW.SURR.112 b) this Agreement also contains provisions of transitional law, establishing in art. 632 (ex art. LAW.SURR.112) (Application to existing European arrest warrants) that the new rules provided for therein apply "to European arrest warrants issued, in accordance with Council Framework Decision 2002/584/JHA, by a State before the end of the transitional period if the wanted person has not been arrested in execution of the warrant before the end of the transitional period".
This is, however, a datum to which no decisive value can be attributed, since it is not unreasonable to consider that the provision of such time limit was indicative of the intention of the parties to allow - from a given moment - the implementation of the new model of cooperation provided by the Agreement, but certainly not to prevent the application of very few procedural rules on the European arrest warrant, instrumental, however, as in the case of the Italian State, to allow - in the absence of other suitable internal rules - to ensure the implementation of the Agreement and, in particular, the speed of the definition of the procedure and the timeliness of the decision on the arrest warrant.
From a further point of view, if it is true that at present there is no specific rule that allows recalling, insofar as they are compatible, the few rules provided for by Law no. 69 of 2005 that regulate the time and manner of taking the decision, it is equally true that the choice made by the legislator with Law no. 37 of May 3, 2019, "Provisions for the speedy definition of the proceedings and the promptness of the decision on the arrest warrant" is significant. 37, "Provisions for the fulfillment of obligations arising from Italy's membership of the European Union" following the entry into force of the Agreement between the European Union and the Republic of Iceland and the Kingdom of Norway, made in (OMISSIS), concerning the surrender procedure between the Member States and Iceland and Norway.
The Agreement, as regards the relations of the Member States with Iceland and Norway, introduces a discipline of the surrender procedure almost entirely modelled on that provided for in the Framework Decision 2002/584/JHA on the European arrest warrant.
In the preamble of the Agreement the Contracting Parties justify the establishment of a simplified surrender procedure with the aim of improving judicial cooperation in criminal matters for a more effective fight against crime, and because of mutual trust in the structure and functioning of their respective legal systems and in the ability of the Contracting Parties to ensure a fair trial.
By Decision 2014/835/EU of November 27, 2014, the Council of the European Union approved the aforementioned Agreement.
With Law no. 37 of 2019, Italy therefore proceeded to transpose the Agreement. In particular, art. 8 provides that to Law no. 69 of April 22, 2005, art. 1, after paragraph 4, the following paragraphs are added:
"4 - bis. The dispositions of the present law also constitute the implementation of the Agreement between the European Union and the Republic of Iceland and the Kingdom of Norway, made in (OMISSIS), relative to the procedure of delivery between the member States of the European Union and Iceland and Norway, an Agreement which is applied within the limits in which the dispositions are not incompatible with the principles of the constitutional order regarding fundamental rights and liberties.
4 - ter. The references in the provisions of the present law to the "European arrest warrant" and to the "Member State" must be understood as being made, in the context of the procedure of delivery with Iceland or Norway, respectively, to the "arrest warrant" which is the object of the Agreement referred to in paragraph 4-bis and to the Republic of Iceland or the Kingdom of Norway"".
This is a norm which, in the absence of an intervention by the legislator aimed at regulating the times and modalities of taking the decision on the execution of the arrest warrant in relations with the Kingdom of Great Britain, is important because it reveals how the norms in question are those which seem most compatible and functional in implementing models of cooperation which are objectively contiguous.
To reason differently, one would have to consider that for the implementation of Agreements with third countries, inspired by models of contiguous cooperation, one would have to take into account, with regard to the discipline of the times and modalities of taking the decision on the request for execution of the arrest warrant, asymmetrical regulations.
- the Agreement on Trade and Cooperation between the European Union and the Kingdom of Great Britain is a detailed and current agreement, inspired, as far as the model of criminal cooperation is concerned, by a relationship of trust, mutual recognition, direct relations between judicial authorities and therefore "distant" from that which characterizes the extradition model;
- the handing over of wanted persons is subordinate to the issue of an arrest warrant, whose assumptions, requirements, content and execution are strictly defined in the Agreement itself;
- the judicial authority of the Italian State must verify, for the purposes of executing the arrest warrant and the surrender of the wanted person, that there are no reasons preventing the warrant from being executed;
- with regard to the procedure concerning the time and manner of taking the decision on the execution of the warrant, the Agreement provides that the final decision must be taken within 60 days of the arrest of the wanted person (art. 615);
- in the absence of legislative intervention aimed at indicating the procedural form to be followed in order to guarantee the effectiveness of the above principle, as regards the timeframe and the manner in which the decision is taken, the provisions of Law no. 69 of 2005 must be applied, insofar as they are compatible.
Consequently, the second ground of appeal and the request for a preliminary reference to the European Court of Justice contained in the first ground of appeal are unfounded.
3. The above considerations make the third ground of appeal inadmissible, given that the Court, which has also indicated the reasons underlying the arrest warrant and the abstract possibility of the alleged crimes, should not have ascertained the existence of serious indications of guilt.
4. The fourth ground of appeal, alleging a violation of the law in relation to art. 604, letter c) of the Agreement on Trade and Judicial Cooperation, is also inadmissible; the issue concerns the Court's decision not to consider that there were concrete elements to request information from the United Kingdom on the prison conditions in the prison where D. will be held, thus exposing him to the risk of inhuman or degrading treatment.
Contrary to the assumptions of the defense, the Court of Appeal correctly explained how the documentation produced by the applicant does not show at all that the Committee for the Prevention of Torture and Inhuman Treatment or Punishment (CPT) has actually found situations demonstrating the actual existence of the risk of subjecting prisoners to inhuman or degrading treatment.
On the specific point, the appeal is silent, having the appellant referred to information relating to 2017- 2018 and to a more current investigation whose outcome are unknown.
5. Finally, the fifth ground of appeal concerning the non-application of Article 524 of the Agreement is also unfounded, since the Court underestimated the health risk that the delivery of D. would imply for him because of the Covid - 19 pandemic.
Apart from the fact that the phenomenon is common to all European countries, the deductions reveal a structural generality as they are not related to specific and relevant situations.
6. The rejection of the appeal follows the condemnation of the applicant to pay the costs of the proceedings.
Dismisses the appeal and orders the appellant to pay the costs.
Send to the Clerk of the Court for the formalities pursuant to Law no. 69 of 2005, art. 22, paragraph 5.
Thus decided in Rome on August 24, 2021.
Deposited at the Registry on September 16, 2021.