In an EAW proceeding, the request for rescission of the judgment for being tried in absentia in Italy needs to be filed within a thirty-day time limit for the knowledge of proceeding, not from the time when the convicted person had complete knowledge of the acts of the trial and the final judgment; in the event of particular complexity of the procedural matter, to the possibility for the same person to request the return within the time limit to exercise the right to extraordinary appeal.
(unofficial machine translation)
Italian Supreme Court
Criminal Sec. II No. 9953 Year 2024
hearing 14/02/2024 - filed 08/03/2024
On the appeal brought by
JUDGMENT
OM born in Romania **/1980
Against the order of the Court of Appeal of Bologna dated 24/10/2023
Having regard to the acts, the order appealed and the appeal;
Hearing the report delivered by Cons. Anna Maria De Santis;
read the indictment of Deputy Attorney General Giuseppina Casella, who concluded that the appeal was inadmissible
IN FACT AND IN LAW
1.By the contested order, the Court of Appeal of Bologna declared inadmissible the petition for rescission of the judgment of res judicata regarding the conviction for the crimes of aggravated robbery and aggravated injury pronounced on 17/1/2018 by the Court of Parma against the absent defendant Miclescu Otilia, which became final on 19/4/2019.
2. Appealed for Cassation the defendant's defense counsel, who inferred:
2.1 the erroneous application of Article 629 bis, paragraph 2, cod.proc.pen, and the manifest illogicality of the reasoning. The defendant argues that the territorial court declared the inadmissibility of the petition for rescission of the judgment without taking into account the impossibility of proving the day on which the European arrest warrant was served on the defendant so that, in the absence of such data, the defendant discharged the burden placed on him by referring to the only certain date, namely the date on which the applicant was associated in prison and was notified of the order for the execution of the sentence. He adds that, in light of the circumstances represented in the application, it is clear that the appellant had no knowledge of the trial against her and the relevant sentence.
3. The appeal is inadmissible due to the manifest groundlessness of the proposed complaints. The District Court issued the declaration of inadmissibility of the application after noting in limine the defense counsel's indication as the date of knowledge of the conviction that of July 21, 2023, the date of the applicant's entry into the prison of assignment after her arrest abroad in execution of a European arrest warrant, inviting the counsel to supplement the documentation relating to the timeliness of the request, having regard to the day of notification of the M. A.E. The defense did not comply with the invitation, arguing that the convicted person did not have a copy of the order nor had she provided elements useful to the temporal placement of the notification.
3.1 The jurisprudence of legitimacy has affirmed the principle that on the subject of rescission of the judgment, the thirty-day time limit for the submission of the relevant request runs not from the time when the convicted person had complete knowledge of the acts of the trial and the final judgment, but from the time when the same had knowledge of the proceedings, without prejudice, in the event of particular complexity of the procedural matter, to the possibility for the same person to request the return within the time limit to fully exercise the right to extraordinary appeal (Sez. 4, no. 36560 of 22/09/2021, Rv. 281925 - 01; Sez. 1, no. 32267 of 30/10/2020, Rv. 279994 - 01 cui adde Sez. 3, no. 29592 of 20/05/2021, Rv. 281765 - 01, which declared manifestly unfounded the question of constitutional legitimacy of art. 629-bis, paragraph 2, cod. proc. pen. for violation of Art. 24(2), 111 and 117 Const. in relation to Art. 6 ECHR, insofar as it provides that the 30-day deadline for the submission of the request for rescission of the judgment runs from the mere "knowledge of the proceedings" and not from that, accomplished, of the contents of the measure to be rescinded).
This Court has further clarified that the burden of proof rests on the one who seeks rescission of the judgment (both in the text under Art. 625-ter and in the one now in force under Art. 629-bis), who is required to rigorously allege the elements suitable to prove the timeliness of the application with respect to the time of actual knowledge of the proceedings (Sec. 2, no. 7485 of 18/01/2018, Rv. 272468 - 01).
The territorial court correctly applied these principles in the face of the interested party's failure to show the data necessary to temporally place the EAW notification, a sure source of knowledge of the proceedings against him.
4. In light of the foregoing considerations, the appeal must be declared inadmissible with an order that the appellant pay the costs of the proceedings and the fine specified in the operative part, since there are no grounds for exoneration.
P.Q.M.
Declares the appeal inadmissible and orders the appellant to pay the costs of the proceedings and the sum of three thousand euros in favor of the Fine Fund.
Thus decided in Rome on February 14, 2024
Judgment with simplified grounds