In an extradition procceding the extradited person's pretrial estradition detention counts for the purposes of calculating pretrial detention terms.
CONSTITUTIONAL COURT
JUDGMENT NO. 253
YEAR 2004
JUDGMENT
in the judgment on the constitutional legitimacy of Article 722 of the Code of Criminal Procedure, promoted, in the context of criminal proceedings, by the Court of Cassation by order dated October 8, 2003, filed on November 7, 2003, entered under No. 1149 of the 2003 Register of Orders and published in the Official Journal of the Republic No. 3, first special series, of the year 2004.
Having regard to the affidavit of the private party;
Hearing at the public hearing on June 8, 2004, Judge-Rapporteur Guido Neppi Modona;
Hearing of the lawyer Francesca Conte for the private party.
Held in fact
1. - By order dated October 8, 2003, the Court of Cassation raised, with reference to Articles 3 and 13 of the Constitution, a question of constitutional legitimacy of Article 722 of the Code of Criminal Procedure, "insofar as it provides that the extradited person's custody abroad is not relevant for the purposes of calculating phase terms."
The Court of Cassation premised:
- that a pre-trial detention order had been issued against a defendant for crimes under Articles 73 and 74 of Presidential Decree No. 309 of October 9, 1990, which remained unexecuted, and that the defendant had then been taken into custody in the Netherlands on March 29, 1999, following an extradition request made by the Italian judicial authority;
- that subsequently the defendant had been sentenced in a judgment of September 16, 1999, by the Court of Lecce to 14 years' imprisonment, a sentence upheld by the Court of Appeal of Lecce, which had reduced the sentence to 12 years' imprisonment, and then annulled on remand by the Court of Cassation in a judgment of July 1, 2002;
- that the defendant had been extradited from the Netherlands only on January 9, 2003, and that he had been detained in Italy since that date;
- that the defendant had applied for his release on the grounds that the terms of pre-trial detention had expired, since following the regression of the proceedings to the appellate level after the annulment ordered by the Court of Cassation it now appeared that the double phase terms had been exceeded;
- that this request had been rejected by both the Court of Appeals and the Court of Review, on the assumption that the wording of Article 722 of the Code of Criminal Procedure refers exclusively to the overall term and that therefore the phase term had to be calculated exclusively from the time when the defendant was arrested on Italian territory, i.e. from January 9, 2003;
- that the defendant's counsel had brought an appeal in cassation alleging violation and misapplication of Articles 303, 304 and 722 of the Code of Criminal Procedure, observing, also in light of the recent interpretative decisions of the Constitutional Court, "which necessarily reverberate on the interpretation and application of Article 722 of the Code of Criminal Procedure," that following the recourse of the proceedings resulting from the annulment with reference in the first instance, it appeared that the phase term had exceeded twice as long, namely three years.
On the merits, the Supreme Court observes that, according to its own case law, Article 722 of the Code of Criminal Procedure should be interpreted to mean that the pre-trial detention suffered by the citizen abroad is computable only for the purposes of the overall terms of pre-trial detention and not also for the phase terms, and that this discipline has been deemed not unreasonable, since the situation of the person subjected to a pre-trial measure in Italy is different from that of the person subjected to a similar measure abroad pending the definition of extradition proceedings.
On the other hand, the interpretation followed by the Constitutional Court, starting with Judgment No. 292 of 1998 and up to Order No. 243 of 2003, for which the double of the phase term is to be calculated "by adding periods of detention, also possibly suffered in a phase other than that in which the proceedings have regressed," would not be "unequivocally applicable to the case [...] under consideration, it having to be held, in the light of the jurisprudence of legitimacy cited above, that the double of the phase term must be calculated from the moment the person concerned crossed the threshold of a national penitentiary institution."
The censured regulation," the Court of Cassation concludes, "therefore seems to be in conflict, after the aforementioned decisions of the Constitutional Court, "with the principles set forth in Articles 3 and 13 of the Constitutional Charter, insofar as it provides that pre-trial detention abroad does not count for the purposes of calculating the phase terms.
2. - The defendant on remand entered an appearance, concluding that the issue should be upheld.
The defense of the private party recalls that the Court of Cassation has always considered the censured rule adherent to constitutional principles and notes that this jurisprudential orientation - if it could be considered consistent with the direction according to which the detention of the defendant abroad, resulting from a request for extradition submitted by the Italian State, does not constitute a legitimate impediment to appear - is definitively surpassed by a recent decision in which the United Sections equated the situation of the defendant detained in Italy with that of the defendant detained for extradition purposes abroad. Therefore, "a revisitation in bonam partem" of the denounced discipline, in accordance with the principles set forth in Articles 3 and 13 of the Constitution, would be required: and this is all the more so in the case at hand, in which "the requested State (Holland) had already granted extradition to the requesting State (Italy) and [the defendant] had, per tabulas, expressed the precise desire to be present in Italy."
The arguments put forward by the Constitutional Court as the basis for Judgment No. 292 of 1998 and the subsequent orders would lead to "deeming invalid the limit of double the phase terms provided for in Article 303, paragraph 1, of the Code of Criminal Procedure. " for both the detainee abroad and the detainee in Italy and "constitutionally obliged by virtue of the value expressed in Article 13 Const." the interpretation according to which pre-trial detention loses effectiveness when this limit has been exceeded for any cause, even if the defendant is detained abroad awaiting extradition.
3. - At the public hearing, the private party's defense reiterated and developed the remarks made in the statement of constitution.
Considered in law
1. - The question of constitutionality raised by the Court of Cassation has as its object Article 722 of the Code of Criminal Procedure, insofar as it provides that pre-trial detention undergone abroad as a result of an extradition request submitted by the Italian state is not relevant for the purposes of calculating phase terms.
The referring Court of Cassation - called upon to rule on the appeal of a defendant who, having been detained abroad for extradition purposes from March 29, 1999 to January 9, 2003, had requested his release due to the expiration of twice the phase terms following the recourse of the proceedings, alleging violation of Articles 303, 304 and 722 of the Code of Criminal Procedure. - notes that, according to its own jurisprudence, the detention suffered by the citizen abroad is counted only for the purposes of the overall duration of pre-trial detention, and not also of the phase terms, based on the assumption that the situation of the person detained abroad pending extradition is not comparable to that of those who are subject to pre-trial detention in Italy.
In light of this line of jurisprudence, according to the Court of Cassation, the double phase time limit should be calculated from the moment the detainee has "crossed the threshold of an Italian penitentiary institution," and therefore the discipline regarding the calculation of phase time limits in the case of recourse of the proceedings, according to the interpretation followed by the Constitutional Court since Judgment No. 292 of 1998, would not be "pacifically" applicable to the case under consideration.
The censured rule, interpreted to mean that detention abroad does not count toward the computation of phase terms, would thus be in conflict with the principles set forth in Articles 3 and 13 of the Constitution.
2. - The question is well-founded.
3. - The current text of Article 722 of the Code of Criminal Procedure is the result of the amendments introduced by Article 10 of Decree-Law No. 306 of June 8, 1992, converted into Law No. 356 of August 7, 1992. The original text provided that detention abroad for extradition purposes was counted in the duration of pre-trial detention according to the general rules, and therefore also for the purposes of the running of phase terms, without prejudice to the suspension in the trial phase during the time when the trial was suspended or postponed due to the defendant's impediment (such being considered, according to the report to the Preliminary Draft of the code, the imprisonment suffered abroad following an extradition request), as well as the extension provided by Art. 305 of the Code of Criminal Procedure where the custody of the defendant in the territory of the state was necessary for the performance of evidentiary activities.
In the report to Decree-Law No. 306 of 1992, the counting of the period of detention abroad only for the purposes of the overall duration of pre-trial detention is justified by "the fact that the phases preceding the extradition procedure are beyond the availability of the Italian state" and that from various countries offering Italy international cooperation had "come the request to be able to take advantage of more time for the conduct of extradition procedures."
Although the new rules have been criticized for allegedly favoring procedural needs to the detriment of the protection of personal freedom, the jurisprudence of legitimacy has on several occasions upheld their 'reasonableness,' noting that the duration of detention is not attributable to the inertia of the national judicial authority, but derives from a situation voluntarily created by the person under investigation, who has taken refuge or otherwise moved abroad.
Article 15 of Law No. 332 of August 8, 1995, then fully replaced Article 304 of the Code of Criminal Procedure, in paragraph 6 of which the regulation of the overall final term of pre-trial detention (previously contained in paragraph 4, the subject of reference in the challenged norm) was placed and the final phase terms were introduced. Moreover, the jurisprudence of legitimacy has not changed the interpretation of Article 722 of the Code of Criminal Procedure, going so far as to expressly state in one case (Cass, sect. VI, judgment no. 555 of September 22, 2000) that the reference made by that norm to paragraph 4 (now 6) of art. 304 of the Code of Criminal Procedure takes the form of a recettivistic (or material) reference to the content of the paragraph in force at the time of the amendment of art. 722; with the consequence that, for the purposes of the duration of pre-trial detention abroad, not only would the distinction between phase final terms and overall final term not be relevant, but the latter would still have to be calculated exclusively with reference to two-thirds of the maximum sentence provided for the crime charged or deemed in the judgment (and not, as last established, with reference to the overall duration terms provided for in Article 303, paragraph 4, of the Code of Criminal Procedure, increased by half, or, only if more favorable, to the limit of two-thirds of the maximum sentence provided for the crime charged).
4. - The legislative vicissitudes of Articles 722 and 304(6) of the Code of Criminal Procedure; the decision of this Court which, with reference to Article 3 Const, affirmed, in order to deem subsistent the legitimate impediment to appear, that the detention of the defendant abroad, concreting in any case "a material fact of impossibility to appear," cannot be "assumed as a reasonable presupposition of a diversity of treatment" with respect to detention in Italy (judgment no. 212 of 1974); the recent pronouncement (no. 21035 of 2003) in which the United Sections of the Court of Cassation, in accordance with precedents regarding the full fungibility between pre-trial detention suffered in Italy and that suffered abroad, affirmed that detention abroad for extradition purposes also constitutes a legitimate impediment to appear, since it is of no relevance that the defendant has not given consent to extradition, are all elements that concur in demonstrating the constitutional illegitimacy of the censured discipline.
Indeed, once the equivalence between pre-trial detention abroad pending extradition and pre-trial detention in Italy has been affirmed, obvious reasons of rationality and internal consistency of the system require that the same discipline provided for the duration of pre-trial detention terms in Italy be applied to pre-trial detention abroad. In particular, since detention abroad is also included among the grounds for legitimate impediment to appear that determine the suspension of the running of the terms of pre-trial detention provided for in Article 304, paragraph 1 (a), of the Code of Criminal Procedure, there is no reason that could justify a different discipline for detention abroad than that provided for in Articles 303 and 304, paragraph 6, of the Code of Criminal Procedure for the duration of the maximum terms of pre-trial detention in Italy.
The unreasonable disparity in the treatment of the defendant detained abroad pending extradition compared to the defendant in pre-trial detention in Italy therefore determines, with reference to Article 3 of the Constitution, the constitutional illegitimacy of Article 722 of the Code of Criminal Procedure, insofar as it does not provide that pre-trial detention abroad as a result of an extradition request submitted by the State is also counted for the purposes of the duration of the phase terms provided for in Article 303, paragraphs 1, 2 and 3, of the same code.
for these reasons
THE CONSTITUTIONAL COURT
Declares the constitutional illegitimacy of Article 722 of the Code of Criminal Procedure, insofar as it does not provide that pre-trial detention abroad as a result of an extradition request submitted by the State shall also be counted for the purposes of the duration of the phase terms provided for in Article 303, paragraphs 1, 2 and 3, of the same Code.
Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on July 8, 2004.
Gustavo ZAGREBELSKY, President
Guido NEPPI MODONA, Editor
Filed in the Court Registry on July 21, 2004.