The law rules that the entry of a specific alert in the S.I.S. authorises an immediate arrest of the wanted person by the police.
SUPREME COURT OF CASSATION
SIXTH CRIMINAL SECTION
Judgment, (ud. 20/03/2018) 16-04-2018, no. 16868
on the action brought by:
R.A. born on (OMISSIS);
against the order of 09/01/2018 of the COURT OF APPEALS of PALERMO;
after hearing the conclusions of the public prosecutor, in the person of the Sostituto Procuratore CANEVELLI PAOLO, who asked that the appeal be declared inadmissible;
after hearing the defence counsel.
Conduct of the trial
1. By application filed on 19.01.2018, R.A.'s defence counsel lodged an application for review against the measure of the previous 9 January, by which the counsellor delegated by the President of the Court of Appeal of Palermo had validated the arrest of the defendant, executed by the police as recipient of a warrant issued by the competent German Prosecutor's Office, for the offence of burglary. At the outcome of the hearing consequently fixed, the District Court of precautionary measures declared its lack of jurisdiction, considering that "the only remedy available against measures relating to personal precautionary measures issued for the execution of a European arrest warrant is the appeal for cassation", therefore transmitting the relevant acts to this Court.
2. Without prejudice to the above, it should be noted that, with the above-mentioned petition, the appellant's defence counsel limited himself, first of all, to objecting to the "violation of the combined provisions of Articles 10 and 13 of Law no. 69 of 22 April 2005" and, secondly, to inferring the alleged "lack of the precautionary requirements under Article 274 of the Code of Criminal Procedure, and adequacy of other less serious precautionary measures".
2.1 Subsequently, in a memorandum filed on 26.01.2018 and qualified as "additional grounds", the same defence counsel explained the reasons underlying his grievances, previously the subject of mere enunciation, represented and integrated as follows:
(a) the hearing of R., although it took place in due time on (OMISSIS) at 4.00 p.m., having regard to the date of his arrest, which took place the previous day at 3.30 p.m., was not however preceded by a notification within 24 hours, as prescribed by Article 10, paragraph 2 of Law No. 69 of 2005, since it took place at 11.18 a.m. of the same (OMISSIS), with a consequent breach of the rights of the defence, also in relation to the possibility of adequately documenting the applicant's health conditions, allegedly incompatible with the prison regime;
b) the contested measure would in any case have become ineffective, in accordance with the same law, art. 13, paragraph 3, due to the failure of the requesting authority to forward the M.A.E., as it is not possible to recognise an equivalent value to the wanted person's report entered in the S.I.S., due to its incompleteness;
c) the foregoing would also be an obstacle to the effective appreciation of the exact typology of the crime committed, in function of the evaluation of the recurrence of the "requirements of the edictal penalty to proceed to such a serious custodial measure". In any event, "the danger of absconding could have been prevented by means of alternative measures", the fact that R., an Italian citizen residing in the municipality of (OMISSIS), was arrested on his return from (OMISSIS) being of no relevance, since the data could have been correctly evaluated in terms of precautionary measures if the defendant had been about to leave the country.
Grounds for the decision
1. The overall unfoundedness of the action brings about its rejection.
2. It is premised that, according to the well-established teaching of the jurisprudence of legitimacy, "On the subject of the European arrest warrant, by virtue of the recetive reference made by Law no. 69 of 2005, art. 9, paragraph 7, to art. 719 c.p.p., the only remedy available against the measures relating to cautionary/personal measures issued for the execution of a European arrest warrant is the appeal for cassation" (so, lastly, Sect. 6, sent. no. 24891 of 11.06.2015, Rv. 263816), which - as stated in the above-mentioned provision - can only be formalized for breach of law.
3. Turning, therefore, to the grounds illustrated above, sub a) and b) - taking into account, in the face of a possible finding of absolute generality of the complaints raised pursuant to Law No. 69 of 2005, Articles 10 and 13, before the explication referred to in the memorandum of 26.01.2018, that their intelligibility is ensured by the circumstance that they had already been raised during the validation of the arrest, thus resulting duly addressed by the contested measure - it is easy to observe the following.
4. The alleged infringement of the right of defence does not exist, due to the fact that the defendant was notified of the order setting the date for the validation of the arrest, without complying with the 24-hour time limit referred to in Article 10(2) of Law No. 69 of 2005: this for the simple and decisive reason that the rule referred to is extraneous to the sub-procedure in question.
The contested decision is explicit in signifying the inapplicability of the aforesaid provision to the case in question and this assertion, being correct in law, cannot but be upheld here, beyond the opportunity to clarify the underlying reasons.
Law no. 69 of 2005, art. 10, paragraph 2, relates to the specific hypothesis in which the Court of Appeal itself, having received through the Ministry of Justice the EAW issued by the Public Prosecutor's Office of the Member State, adopts the coercive measure deemed appropriate to the case: this entails the need to hear the surrendering person within five days from the execution of the measure, after having notified the defence counsel - at least within 24 hours - of the date fixed for the aforementioned fulfilment.
It is, therefore, of immediate evidence that the hypothesis described above differs radically from that disciplined by the same law, Articles 11 to 13, of arrest effected on the initiative of the Investigative Police: in this eventuality, in fact - as clearly established by Art. 13, para 1, just mentioned, clearly establishes - the President of the Court of Appeal (or the magistrate delegated by him) must provide for the hearing of the subject within 48 hours from the receipt of the arrest report, a term which, according to completely consolidated jurisprudence, marks, at the same time, the limit within which the validation of the arrest itself must take place (cf, for all, Sec. 6, judgment no. 27357 of 19.06.2013, Rv. 256567).
It follows that the existence of specific indications as to the procedural process to be followed, together with the particularly tight time frame that marks the cadences - much more restricted compared to the hypothesis of the same Law No. 69 of 2005,art. 9 and 10, in which the obligation relied on here relates to a time-limit of five days - is sufficient to exclude with certainty that the reference to Articles 9 and 10, which also appears in the final part of Article 13(2) of Law No 69 of 2005, should be construed in the manner sought by the appellant.
It should also be borne in mind, in further support of the foregoing, that while Article 13(1), discussed above, outlines the simplified procedural features that must be observed and which have been mentioned above, the second paragraph formulates the reference that is of interest here with well-circumscribed reference to the validation order that the President of the Court of Appeal is required to issue, once it has been ruled out that a mistake has been made in the execution of the arrest, or that it has been executed outside the cases permitted by law.
The College's conviction is fully supported by the previous jurisprudence of this Court, which has precisely clarified that, "On the subject of the European arrest warrant, for the validation of the arrest referred to in L. 22 April 2005, no. 69, art. 11 of 22 April 2005, no specific deadline is imposed for notifying the arrested person's lawyer of the setting of the relevant hearing" (so Sez. 6, sentence no. 17918 of 28.04.2009, Rv. 243537; see also, albeit on the basis of a different systematic approach, Sez. F., sentence no. 34958 of 04.09.2008, Rv. 240718).
It is just the case to observe, finally, that the considerations made are of absorbing value with respect to the generic statement of a consequent alleged impossibility of documenting the incompatibility of R.'s state of health (for unspecified reasons) with the inframurary detention, as well as with respect to the similarly alleged impossibility of verifying the type of offence, both of which are, moreover, completely unrelated to the terms of the original appeal.
5. Nor is there any merit in the further breach of the law alleged, pursuant to Article 13, paragraph 3 of Law no. 69 of 2005, by reason of the failure to transmit the European arrest warrant within the ten-day time limit, provided for this purpose by the same provision now cited.
The contested decision has punctually observed that the same Article 13, to which the defendant here refers, sanctions the equivalence to the warrant of the entry of the relevant alert in the S.I.S., as occurred in the case in question. And if it is true that such equivalence requires that the report contain the particulars referred to in Article 6 of Law No. 69 of 2005, it is equally true that here the appellant has confined himself generically to stating the absence "of the allegations provided for by the same article, paragraphs 3, 4 and 7", without any further specification.
In this regard, the College observes that such allegations concern the copy of the proper title of the domestic law of the requesting State, which is the basis of the EAW; the report on the charged facts; the complete indications on the applicable legal provisions by the issuing Prosecutor's Office; the identification data and information concerning the identity and nationality of the surrendered person; all accompanied by an Italian translation. This is what the contested decision actually attests to, where it clearly states that "the alert was issued in the required form", moreover acknowledging the appellant's personal details, with the exclusion of personal errors, as well as the offence committed by him in the Federal Republic of Germany, with the specification of the maximum penalty that can be imposed in abstract terms under the provisions in force there.
Having said this, it is not useless to recall that the principle according to which any defects in the allegations, pursuant to Article 6, are irrelevant where the documentation transmitted is in any case sufficient to allow the Italian Prosecutor's Office to carry out its checks, within the limited terms in which such checks must be limited, is well established in the case-law of legitimacy: this further highlights the already noted generic nature of the defence's complaint.
6. As regards the remaining plea, concerning the appropriateness of less serious precautionary measures, in addition to being characterised by the clear absence of a real comparison with the reasons in this regard represented by the contested measure, it is to be considered inadmissible in the light of the radical generality already discernible upstream, due to the failure to formulate the reasons underlying the complaint, explained only in the above-mentioned memorandum and that the contested order does not allow to affirm that they had already been put forward at the time of validation, as in the case of the complaints on ritual mentioned above.
7. The anticipated rejection is followed by the ruling of law on the costs of the proceedings.
Dismisses the appeal and orders the appellant to pay the costs. Sends to the clerk's office for the fulfilment of the requirements of Article 94 disp. att. c.p.p., paragraph 1b.
Thus decided in Rome, on 20 March 2018.
Filed at the Court Registry on 16 April 2018