The assessment of torture charges in a public criminal trial meets a constitutional and supranational obligation: the uncooperative conduct of one's own State in the notification of the trial legitimises a trial in absence, without prejudice to the right of the accused himself to a new trial in presence for the re-examination of the merits of the case.
The Constitutional Court's ruling in the Regeni torture case allows an in absentia judgment when, due to the lack of assistance of the State of nationality of the same defendant, the summon cannot be officially handed out, save the right of the defendant to a new trial in presence for the re-examination of the merits of the case.
The paralysis of the trial for crimes of torture committed by public agents due to the lack of cooperation of the State to which they belong, "is not acceptable, under domestic, European and international constitutional law", given that "it results in the creation of a de facto immunity", which offends the inviolable rights of the victim (art. 2 Const.), the principle of reasonableness (art. 3 Const.) and the standards of protection of human rights, implemented and promoted by the New York Convention (art. 117, first paragraph, Const.).
(non official machine translation)
Constitutional Court
JUDGMENT NO. 192
YEAR 2023
President: SCIARRA - Editor: PETITTI
Council Chamber of 20/09/2023; Decision of 27/09/2023
Filing of 26/10/2023; Publication in the Official Gazette.
in the judgement on the constitutional legitimacy of Article 420-bis, paragraphs 2 and 3, of the Code of Criminal Procedure, promoted by the Judge for Preliminary Investigations [recte: Judge for the Preliminary Hearing] of the Ordinary Court of Rome in the criminal proceedings against S. T. and others, by order of 31 May 2023, entered under no. 89 of the register of orders 2023 and published in the Official Journal of the Republic no. 26, first special series, of the year 2023.
Held at the Council Chamber of 20 September 2023 by Judge-Rapporteur Stefano Petitti;
Deliberated in the council chamber of 27 September 2023.
In fact
1.- By order of 31 May 2023, registered under no. 89 of the register of ordinances 2023, the Judge for Preliminary Investigations [recte: Judge for the Preliminary Hearing] of the Ordinary Court of Rome has raised questions on the constitutionality of art. 420-bis, paragraph 2, of the Code of Criminal Procedure, "insofar as it does not provide that the judge proceeds in the absence of the accused, even when he considers otherwise proven that the absence from the hearing is due to the lack of judicial assistance or to the refusal of cooperation by the State of the accused's nationality or residence", as well as of Article 420-bis, paragraph 3, of the Code of Criminal Procedure "insofar as it does not provide that the court shall proceed in the absence of the accused even outside the cases referred to in paragraphs 1 and 2, when it considers it proven that the lack of knowledge of the pendency of the proceedings[,] depends on the lack of judicial assistance or the refusal of cooperation by the State of nationality or residence of the accused".
The referring court refers to the parameters set out in Articles 2, 3, 24, 111, 112 and 117, first paragraph, of the Constitution, the latter in relation to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted in New York on 10 December 1984, ratified and made enforceable by Law No. 498 of 3 November 1988.
Those parameters would be violated by the alleged legislative omissions, which would make it impossible even to set the trial for the investigation of the facts of the crime committed against Giulio Regeni, an Italian citizen, doctoral student at Cambridge University, who was found dead on 3 February 2016, in Egypt, along the Cairo-Alexandria Desert Road.
2.- The order of referral sets out the course of the proceedings in the following terms.
2.1.- On 20 January 2021, the Public Prosecutor at the Court of Rome requested the committal for trial of S. T., I. M. A. K., H. U. and S. A. M. I., Egyptian citizens, who were declared unaccounted for by decrees of 28 January 2020.
They, all graduates of the Egyptian internal security service (National Security Agency), were charged with multiple counts of aggravated kidnapping, for having, in conspiracy with each other and with other unidentified persons, blocked Giulio Regeni inside the Cairo underground and then deprived him of his personal freedom for nine days, from 25 January to 2 February 2016.
S. A. M. I. alone was also charged with the offences of grievous bodily harm and aggravated murder, for having, in conspiracy with other unidentified persons, caused Giulio Regeni severe and widespread injuries, over a period of several days, by cruel acts and violent means, until causing his death.
2.2.- On 25 May 2021, the Judge of the Preliminary Hearing of the Court of Rome, having verified the regularity of the notifications carried out pursuant to Article 159 of the Code of Criminal Procedure, issued an order pursuant to Article 420-bis of the same code, ordering that the defendants be declared absent and remanding them for trial before the Court of Assizes of Rome for the hearing of 14 October 2021.
With reference to the declaration of absence, the Preliminary Hearings Judge considered that the defendants had been fully aware of the existence of the proceedings against them and that they had therefore voluntarily avoided formal knowledge of the relevant acts, not making it possible to serve them; this was not only because they had been heard several times by the Egyptian judiciary in rogatory letters and several times invited to elect domicile in Italy, but also because of their membership of the local security apparatus and the widespread media coverage of the news.
2.3.- At the hearing of 14 October 2021, the Court of Assizes of Rome declared null and void the declaration of absence and the consequent decree of committal for trial, ordering the return of the documents to the Judge for the preliminary hearing.
In fact, the Court of Assizes considered that there were not sufficient factual indications to ensure that the defendants, although aware of the proceedings, had actual knowledge of the vocatio in iudicium and that it was therefore impossible to conclude that they were attempting to evade the trial or had waived their right to participate in it; nor, in the opinion of the Court, was there any evidence that the defendants themselves had played a role in the Egyptian authorities' proven determination not to cooperate with the Italian authorities.
2.4.- On 10 January 2022, at the hearing following the return of the documents, the Preliminary Hearing Officer considered that he could not accede to the request of the Public Prosecutor and of the civil parties appearing as civil plaintiffs to declare the absence of the defendants and therefore ordered, after new enquiries, the personal notification of the defendants for a further hearing on 11 April 2022.
At that hearing, considering the continued impossibility of tracing the defendants, the judge ordered the suspension of the trial, pursuant to Article 420-quater, paragraph 2, of the Code of Criminal Procedure, pro tempore text in force.
2.5.- The Public Prosecutor at the Court of Rome appealed against this order in cassation, denouncing it as an abnormal act, for inducing a procedural stasis.
The appeal was declared inadmissible by the Court of Cassation, first penal section, with a sentence rendered in the council chamber of 15 July 2022, the grounds of which were filed on 9 February 2023 (sentence no. 5675 of 2023).
2.6.- Pending the filing of the grounds of that judgment, a hearing was held before the Judge Advocate General of the Court of Rome on 10 October 2022, relating to further judicial police searches to trace the defendants and to the Ministry of Justice's interlocution with the Attorney General's Office of the Arab Republic of Egypt.
From all of this activity emerged the lack of a real willingness to cooperate on the part of the Egyptian authorities, manifested in particular by the opposition of the principle of ne bis in idem on the basis of a simple archiving order (memorandum of 26 December 2020), adopted, in the case of the four officers of the National Security Agency, not by a third and impartial judge, but by the same investigative body, not autonomous, in the Egyptian legal system, from the Government authority.
2.7.- As mentioned above, on 9 February 2023, the grounds for the judgment were filed, whereby the Court of Cassation, declaring inadmissible the Public Prosecutor's appeal, found that the order of suspension of the trial issued by the Judge for the Preliminary Hearing of the Court of Rome on 11 April 2022 was not affected by abnormality, as was the order issued on 14 October 2021 by the Court of Assizes of Rome, which in turn annulled the previous declaration of absence of the defendants.
That reasoning set out the reasons why the assessment underlying both of those orders should be deemed to be free from logical and legal defects, as to the insufficiency of the evidence adduced to prove the knowledge of the vocatio in iudicium on the part of the four Egyptian citizens to whom the charges are ascribed.
2.8.- At the subsequent hearing held by the Judge for the Public Prosecutor's Office of the Court of Rome on 3 April 2023, the Public Prosecutor requested that a question be raised as to the constitutionality of Article 420-bis of the Code of Criminal Procedure, as in the meantime replaced by article 23, paragraph l, letter c) of legislative decree no. 150 of 10 October 2022 (Implementation of law no. 134 of 27 September 2021, containing delegation to the Government for the efficiency of the criminal trial, as well as in the matter of restorative justice and provisions for the speedy definition of judicial proceedings), in the part in which it does not provide that proceedings may be carried out in the absence of the accused in cases where the formal lack of knowledge of the proceedings depends on the lack of judicial assistance from the State of the accused's nationality or residence.
The Pre-Trial Judge reserved his decision until the hearing of 31 May 2023, at the outcome of which he pronounced the order of referral.
3.- As to the relevance of the raised questions of constitutionality, the referring judge states that, as a consequence of the already ordered suspension of the trial, the transitional provisions of Article 89, paragraph 2, of legislative decree no. 150 of 2022 must be applied, according to which, where the impossibility of tracing the accused persists, a judgement of non-prosecution must be issued due to lack of knowledge of the pending trial, pursuant to the amended Article 420-quater of the code of criminal procedure.
In fact, the referring court observes that, although it may 'be considered reasonable and plausible to assume that the defendants, who also participated in the Egyptian investigation and were heard as persons informed of the facts by the Italian public prosecutor, were aware of the proceedings against them in Italy for the kidnapping, torture and murder of Giulio Regeni', nevertheless 'that is not enough, because the current legislation on the trial in absence[,] was introduced in order to exclude any presumption of knowledge and to proceed in the absence of the defendant only when there is actual knowledge of the proceedings against him, both as regards the charges and as regards the "vocatio in iudicium" or his intention to evade the trial is positively proven".
3.1.- Moreover, an alternative interpretation of the rule censured would not be practicable, since the only interpretation permitted by the letter and the ratio of the same is "that which excludes to consider "presumed" the actual knowledge of the pendency of the trial and/or the defendant's will not to appear at the preliminary hearing, or to consider "presumed" the defendant's will to evade knowledge of the trial".
Hence the relevance of the questions, since only the declaration of constitutional illegitimacy of Article 420-bis, paragraphs 2 and 3 of the Code of Criminal Procedure, in so far as it does not provide for the hypothesis that the lack of knowledge of the trial is due to the ascertained refusal of judicial assistance by the foreign State of the defendant's nationality or residence, would allow the proceedings to proceed in the absence of the four defendants, since it has been ascertained that the Egyptian authorities refused to provide assistance to the Italian authorities for the notification of the summons to the defendants, all of whom, as already mentioned, were officers in the service of the National Security Agency at the time of the events.
3.2.- The relevance of the questions would not be excluded by the argument, put forward by the defence of the defendants' own motion, according to which the defendants' actual knowledge of the proceedings would be sacrificed for the conduct of others, i.e. the authorities of their State of origin.
According to the referring court, in fact, "unlike the victims of the crime and the close relatives who cannot join the civil action and suffer undoubted prejudice from the obstructive conduct of the defendants' foreign State of nationality, the latter, on the contrary, enjoy substantial criminal immunity".
4. - With regard to the non manifest groundlessness of the questions, the referring party premises the enunciation of the "certain factors" of the case submitted to its judgment the willingness of the Egyptian authorities not to provide assistance to the Italian authorities in order to allow the vocatio in iudicium of the foreign defendants; the latter's knowledge of the proceedings in Italy against them; the impossibility of serving procedural documents on the defendants as a consequence of the Egyptian authorities' refusal to cooperate the sacrifice of the right of Giulio Regeni's relatives to a fair trial in which they can make a civil claim, in order to establish responsibility for the kidnapping, torture and murder of their loved one; the impossibility for the preliminary hearing judge to ascertain whether the defendants are voluntarily evading trial in Italy or whether they are instead also suffering the conduct of the authorities of their country.
4.1.- The censured provision would first of all violate Articles 2 and 3 of the Italian Constitution, allowing the foreign State to erect "an inadmissible 'free zone' of impunity for citizen-criminals", in relation to crimes that violate inviolable personal rights.
The principle of reasonableness would also be violated, since the Italian court would be burdened with a probatio diabolica in the face of the obstructionism of the State to which the defendants belong.
There is also a lack of balancing since, while the defendant tried in his absence is entitled to remedies if he proves that he was prevented from attending the trial by force majeure, unforeseeable circumstances or other legitimate impediment, the victim's relatives are not given any remedy to overcome the procedural obstacle caused by the obstructive conduct of the defendant's State of nationality.
4.2.- Article 24 of the Constitution, in conjunction with Articles 2 and 3 of the Constitution, would also be violated.
The impossibility of taking legal action to protect the fundamental rights of the person, resulting from the non-cooperation of the State of nationality of the defendants, would result in a violation of those rights, as already established by this Court (reference is made to judgment no. 238 of 2014, on the subject of actions for compensation for war crimes of the Third Reich) and by the European Court of Human Rights with regard to investigations for torture and other serious human rights violations.
The infringement of the victim's family's right of action corresponds to the infringement of the defendants' right of defence, the exercise of which is also impeded by the foreign State's obstructive conduct.
In the judge's opinion, the Italian discipline on the trial in absentia "thus enters into a systemic crisis, precisely because there is no rule providing for a remedy in cases of this kind", a lack which would also end up incentivising obstructive conduct, which would otherwise be useless.
The "counterbalance" that would come from the requested additive ruling of this Court would identify a rational point of balance, since the Italian legal system guarantees the defendant tried in the absence of restitutory means in the event that he has not been aware of the trial or has been unable to participate in it due to unforeseeable circumstances, force majeure or other legitimate impediment, and in any case not due to his fault.
On the other hand, the censured provision "places on the victims of the crime and constituting civil parties, the risk of the fact of the third party", i.e. the obstructive conduct of the foreign authority.
4.3.- Article 111 of the Constitution, in conjunction with Article 3 of the Constitution, would also be violated.
In fact, by allowing the foreign State to prevent the proceedings from taking place at its own will, the censured provision would violate the principles of due process and, together with them, also the principle of equality, considering that for similar facts, in respect of foreigners belonging to collaborating States, the trial can be held.
On the other hand, "in the absence of rules allowing proceedings to be held in the absence of the accused, when his State of nationality or residence does not cooperate with the third-party and impartial judge, all the rules on "fair trial" are rendered useless, emptied of content", given that "[t]here is no trial more "unfair" than the one that cannot be held at the behest of a [a]uthority of government".
4.4.- The violation of the principle of compulsory prosecution, enshrined in Article 112 of the Italian Constitution, "procedural precipitate" of the principle of equality, is then alleged.
The lack of a rule that allows the prosecution to proceed in absence when there is a refusal to cooperate by the foreign State to which the defendant belongs would imply that the prosecution remains "subordinate to the executive power of the foreign State".
4.5.- Finally, it would be violated Article 117, first paragraph, of the Constitution, in relation to the New York Convention against torture, ratified by both Italy and Egypt.
Recalling that the facts that are the subject of the charges fall within the concept of torture set out in Article 1 of the Convention, the referring court maintains that the provision censured, in so far as it does not permit proceedings to be brought in absentia against persons accused of the crime of torture when the foreign State of their nationality does not cooperate with the Italian judicial authority, infringes the obligation, enshrined in Articles. 6 and 7 of the Convention itself, to institute a trial in the State of the victim, even if extradition of the alleged perpetrators is not granted; the Egyptian State's breach of the obligations of judicial assistance laid down by Article 9 of the Convention would thus give rise to a legal lacuna which places the Italian legal system in a position where it cannot itself comply with the Convention's obligations.
In law
1.- With the order indicated in the epigraph (reg. ord. no. 89 of 2023), the Judge for Preliminary Investigations [recte: Judge for the Preliminary Hearing] of the Ordinary Court of Rome raised questions on the constitutional legitimacy of Article 420-bis, paragraph 2, of the Code of Criminal Procedure "in the part in which it does not provide that the judge proceeds in the absence of the defendant, even when he considers otherwise proven that the absence from the hearing is due to the lack of judicial assistance or the refusal of cooperation by the State of the defendant's nationality or residence", as well as of art. 420-bis, paragraph 3, of the same Code, "insofar as it does not provide that the judge shall proceed in the absence of the defendant even outside the cases referred to in paragraphs 1 and 2, when he considers it proven that the lack of knowledge of the pendency of the proceedings is due to the lack of judicial assistance or the refusal of cooperation by the State of the defendant's nationality or residence".
By preventing the commencement of proceedings for the investigation of the facts of the crime committed against Giulio Regeni, an Italian citizen, a doctoral student at Cambridge University, who was found lifeless on 3 February 2016, in Egypt, along the Cairo-Alexandria Desert Road, the denounced regulatory shortcomings would violate Articles 2, 3, 24, 111, 112 and 117, first paragraph, of the Constitution, the latter in relation to the New York Convention against Torture.
2. - The judge a quo reports that the Public Prosecutor at the Court of Rome has requested the committal for trial of four officers of the Egyptian National Security Agency, who have been charged with multiple counts of aggravated kidnapping, for having, in conspiracy with each other and with other unidentified persons, detained Giulio Regeni inside the Cairo underground and then deprived him of his personal freedom for nine days, from 25 January to 2 February 2016; one of them, moreover, was charged with aggravated bodily harm and murder, for having, in conspiracy with other unidentified persons, caused Giulio Regeni, at a distance of several days, severe and widespread injuries, with torture and cruelty, to the point of causing his death.
The referring party adds that the Judge for the preliminary hearing of the Court of Rome, on 25 May 2021, ordered to proceed in the absence of the defendants and therefore remanded them for trial before the Court of Assizes of Rome, which, however, at the hearing of 14 October 2021, annulled the declaration of absence and the consequent remand for trial, ordering the return of the acts to the GUP.
2.1.- As far as the order of remittal is still referred to, upon the negative outcome of further searches, the same GUP, on 11 April 2022, ordered the suspension of the trial, pursuant to Article 420-quater, paragraph 2, of the Code of Criminal Procedure, pro tempore text in force.
The Public Prosecutor at the Court of Rome appealed against this measure on the grounds that it was abnormal, but the Court of Cassation, first penal section, declared the appeal inadmissible, with sentence no. 5675 of 15 July 2022-9 February 2023.
2.2.- At the end of successive and vain attempts to trace the defendants for the ritual notifications, having also acquired the negative results of the interlocution of the Ministry of Justice with the Public Prosecutor's Office of the Arab Republic of Egypt, the judge a quo, on the exception of the Public Prosecutor, raised the aforementioned questions of constitutionality.
2.3.- As to the relevance of these questions, the referring judge claims that, as a result of the already ordered suspension of the trial, the transitional provisions of Article 89, paragraph 2, of Legislative Decree no. 150 of 2022 should be applied, whereby, given the persistent impossibility of tracing the defendants, a judgement of non-prosecution should be issued, pursuant to the amended Article 420-quater of the Code of Criminal Procedure, an outcome that, considering the textual and logical univocity of the rule, could not be avoided by means of a constitutionally oriented interpretation.
2.4.- This would result in the violation of Articles 2, 3 and 24 of the Italian Constitution, since the foreign State would be allowed to establish "an inadmissible 'free zone' of impunity for citizen-functioners", which would result in irreparable damage to the inviolable rights of victims, including the right of access to the courts.
Article 111 of the Constitution would then be violated, because "[n]o trial is more 'unfair' than the one that cannot be established by the will of a [a]uthority of government".
The principle of compulsory prosecution, enshrined in Article 112 of the Constitution, would also be compromised, since the punitive claim would in fact be "subordinated to the executive power of the foreign State".
Considering the nature of the facts that are the subject of the charges, it would finally be violated Article 117, first paragraph, of the Italian Constitution, in relation to the New York Convention against Torture, ratified by both Italy and Egypt, the latter establishing the criminal jurisdiction of the Italian judge over acts of torture committed abroad against an Italian citizen, and at the same time committing the States parties to provide mutual and maximum assistance for the prosecution of the acts prohibited by the Convention.
This Court is called upon to pronounce on a case marked by the unresolved tension between the defendant's fundamental right to attend trial, the State's obligation to prosecute crimes consisting in acts of torture and the right - not only of the victim and his or her family, but of the entire human race - to ascertain the truth in court about the perpetration of such crimes.
The point of fall of this tension relates to the discipline of the trial in absentia, which regulates the hypotheses and conditions under which only the accused may be tried without being present.
The referring party seeks to have an additive ruling on these rules, so it would seem appropriate to retrace their development, which has been guided by repeated interventions by the European Court of Human Rights.
4.- Until Law no. 67 of 28 April 2014 (Delegation to the Government in the matter of non-custodial prison sentences and reform of the penalty system. Provisions on the suspension of proceedings with probation and in respect of untraceable persons), the regulation of the defendant's non-presence revolved around the institute of contumacy, a legacy of the Code of Criminal Procedure of 1930.
With the new Code of Criminal Procedure of 1988 and, even before its entry into force, with Law No. 22 of 23 January 1989 (New Discipline of Contumacy), the legislature introduced changes aimed at paying greater attention to the defendant's participatory needs, extending the so-called ex post guarantees, i.e. the remedies that enable the defendant not present to recover the procedural faculties of which he has been unjustly deprived or from which he has been blamelessly deprived.
In particular, the legislature's choice was influenced by the decision of the European Court of Human Rights in which it emphasised the need to ensure that the unaware defendant in absentia has the right to a new trial, and therefore a fresh determination of the merits of the charge ("a fresh determination of the merits of the charge") (judgment of 12 February 1985, Colozza v. Italy).
4.1.- The main provision functional to this ex post facto guarantee, i.e. Article 175 of the Code of Criminal Procedure. 4.1. The main provision for this ex post facto guarantee, i.e. Article 175 of the Code of Criminal Procedure on restitution within the time limit for appealing against a judgment in absentia, was nevertheless judged insufficient by the judgment of the European Court of Human Rights, Grand Chamber, 1 March 2006, Sejdovic v. Italy, in particular on account of the burden of proof placed on the defendant, since in order to be able to reinstate his right to appeal, he had to prove that he had not had actual knowledge of the decision without his fault, which cast doubt on the effectiveness of access to "fresh determination".
In the meantime, even before this ruling, Decree-Law No. 17 of 21 February 2005 (Urgent provisions on the appeal against default judgments and sentencing decrees), converted, with amendments, into Law No. 60 of 22 April 2005, had, inter alia, introduced a new provision on the right to appeal. 60, had, inter alia, reversed the burden of proof in favour of the defendant, providing that he was to be returned within the time limit for appeal 'at his request', unless the court had verified that he had actual knowledge of the 'proceedings' or the 'measure' and had voluntarily waived his right to appear in one or the other.
Moreover, the preclusion of the defendant's return within the time limit in the event of an appeal already lodged by the defence counsel was removed. Subsequently, this Court (judgment No. 317 of 2009) declared the constitutional illegitimacy of Article 175, paragraph 2, of the Code of Criminal Procedure, insofar as it did not allow the return of the defendant, who had not had actual knowledge of the proceedings or of the decision, within the time limit for lodging an appeal against the default judgment, when a similar appeal had previously been lodged by the defendant's lawyer.
4.2.- Even in this context of increased guarantees for the defendant, the very fact that the trial in absentia generated a vast amount of litigation inherent in the profile of restitution within the time limit for appeal highlighted the irreversible crisis of the model and the need for reform ab imis.
On the other hand, as this Court observed in Judgment No. 102 of 2019, the legislature could well, "in the exercise of its discretion, regulate differently the case of the trial celebrated not in the presence of the defendant and this is what it did with Law No. 67 of 2014, making a radically different choice: no longer an ex post restitutory remedy to protect the defendant judged in absentia, but ex ante guarantees to protect the defendant judged in his absence".
4.3.- With the 2014 reform, the institution of default was replaced by that of absence, in a perspective of accentuating the ex ante guarantees, while maintaining the ex post remedies an important closing function of the system.
In particular, the novella amended Article 420-bis of the Code of Criminal Procedure, which had been introduced by Article 19(2) of Law No 479 of 16 December 1999 (Amendments to the provisions on proceedings before the court in monocratic composition and other amendments to the Code of Criminal Procedure. Amendments to the Criminal Code and the Judicial Order. Provisions on pending civil litigation, allowances due to justice of the peace and the exercise of the legal profession).
Replaced by Article 9(2) of Law No. 67 of 2014, Article 420-bis of the Criminal Procedure Code. provided that, if the defendant is not present at the hearing and has expressly waived his right to attend, the judge shall proceed in his absence (para. 1); that the judge shall also proceed in the absence of the defendant who, in the course of the proceedings, has declared or elected domicile or has been arrested, detained or subjected to a precautionary measure or has appointed a defence counsel, as well as in the event that the absent defendant has personally received the notification of the hearing or it is in any case certain that he is aware of the 'proceedings' or has voluntarily absconded from knowledge 'of the proceedings or acts thereof' (paragraph 2) that, when proceeding in absentia, the defendant is represented by his defence counsel, as well as in the event that he, after appearing, leaves the courtroom or, present at one hearing, does not appear at subsequent hearings (paragraph 3).
In the reformed system, the ex post facto guarantees were distributed throughout the course of the trial, and covered both the hypothesis that absence had been declared outside the cases provided for by law, and that in which it had been correctly declared and yet the defendant could prove that he had been blamelessly deprived of a procedural right (arts. 420-bis(4), 489(2), 604(5-bis) and 623(1)(b) of the Code of Criminal Procedure).
A further closing guarantee was also provided for: that the convicted person, in respect of whom proceedings had been conducted in absence for the entire duration of the trial, could ask for the rescission of the judgement if he proved that the absence was due to an "innocent lack of knowledge of the trial", i.e. the lack of knowledge of the vocatio in iudicium, over and above the (possibly even occurring) knowledge of the "proceedings", with the radical effect of the revocation of the conviction and the transmission of the acts to the trial judge for the renewal of the judgement (art. 625-ter of the Code of Criminal Procedure).
The prerequisite and the effect of the rescission of the judgment remained similar even when, in a broader reforming context, the institution was reformulated in Article 629-bis of the Code of Criminal Procedure (formerly Article 1, paragraph 71, of Law No. 103 of 23 June 2017, on "Amendments to the Criminal Code, the Code of Criminal Procedure and the Prison Order"). The 2014 reform was then completed with the provision for the suspension of the trial. In fact, replaced respectively by paragraphs 3 and 4 of Article 9 of Law No. 67 of 2014, Article 420-quater of the Code of Criminal Procedure established that, where it was not possible to proceed in the absence of the defendant, nor to personally notify him of the notice of hearing, the judge should order the suspension of the trial, while the subsequent Article 420-quinquies prescribed under the suspension regime new searches of the defendant on a yearly basis, for the possible notification of the notice of hearing and the consequent resumption of the proceedings.
4.4.- More recently, a further reform of the trial in absentia was carried out by Legislative Decree No. 150 of 2022.
4.4.1.- Replaced by Article 23(1)(c) of that decree, Article 420-bis of the Code of Criminal Procedure now provides, in paragraph 1, that if the defendant is not present at the hearing, the judge shall proceed in his absence: a) when the defendant has been summoned to appear by means of service of the document in his own hands or by a person expressly delegated by him to collect the document; b) when the defendant has expressly waived his right to appear or, in the event of a legitimate impediment, has expressly waived his right to do so.
Pursuant to paragraph 2 below, the judge also proceeds in absence when he considers that it is otherwise proven that the defendant has actual knowledge of the pendency of the trial and that his absence is due to a voluntary and conscious choice, taking into account the manner of service, the acts performed by the defendant prior to the hearing, the appointment of a defence counsel and any other relevant circumstances.
According to paragraph 3 of the same Art. 420-bis, the judge proceeds in absence also outside the cases referred to in paragraphs 1 and 2, when the defendant has been declared a fugitive or has otherwise voluntarily absconded from knowledge of the pending trial.
In the cases envisaged in paragraphs 1, 2 and 3, the judge declares the defendant absent, as such represented by his defence counsel (art. 420-bis, paragraph 4); conversely, outside the cases envisaged in paragraphs 1, 2 and 3, the judge, before proceeding pursuant to art. 420-quater, adjourns the hearing and orders that the relevant notice, the request for committal for trial and the minutes of the hearing be served on the defendant personally by the judicial police (art. 420-bis, paragraph 5).
4.4.2 The hypotheses of absence that does not prevent the trial from taking place (so-called non impeding absence) are therefore exhaustive, being only those distinguished by the first three paragraphs of article 420-bis of the Code of Criminal Procedure, outside of which, if the further searches for personal notification of the defendant are unsuccessful, the mechanism of improcediability set up by the new article 420-quater is activated.
Broadly speaking, precisely on the basis of the scansion of the relevant subparagraphs of Art. 420-bis, three hypotheses of non-impedimentary absence can be identified that in which the defendant has been served with the notice of the hearing by himself or by a special delegate, or has expressly waived his right to appear or to assert a legitimate impediment; that in which the judge, taking into account the manner in which the notice of the hearing was served (obviously not by himself), the acts performed by the defendant prior to the hearing, the appointment of a defence counsel and any other relevant circumstance, considers that the defendant's knowledge of the fact that the trial is pending is in any case proven that in which the defendant has absconded or otherwise voluntarily evaded knowledge of the pending trial, which evokes the current image of the "fake unaware", i.e. of one who does not know because he does not want to know, and therefore, in a certain sense, pretends to be unaware.
4.4.3.- Replaced by Article 23(1)(e) of Legislative Decree No. 150 of 2022, Article 420-quater of the Code of Criminal Procedure establishes that, when there is no case of prosecutable absence or legitimate impediment to appear, if the defendant is not present, the judge pronounces a final sentence of non-prosecution due to lack of knowledge of the pending trial.
The transformation of the impeding absence from a cause of suspension of the trial to a case of improcedibility is in line with the solution adopted for the "eternal judicable" infirm by Article 72-bis of the Code of Criminal Procedure, inserted by Law No. 103 of 2017, as observed by this Court in Judgment No. 65 of 2023, which declared the constitutional illegitimacy of the same Article 72-bis, paragraph 1, in the part where it referred only to the "mental" state of the defendant, instead of his "psychophysical" state.
In view of the form-content of the judgment referred to in Article 420-quater of the Code of Criminal Procedure In view of the form and content of the judgment referred to in Article 420-quater of the Code of Criminal Procedure, which contains both a virtually conclusive ruling of inadmissibility and a vocatio in iudicium at a predefined hearing for the case of tracing the defendant, its "two-faced nature" is emphasised; an ambivalence that is however destined to dissolve with the passage of time, since, pursuant to paragraphs 3 and 6 of Article 420-quater, at the time of the trial, the defendant is not to be found in the courtroom, but is to be sentenced to a trial in which he is not to be charged. 420-quater, when the time limit provided for in the last paragraph of Article 159 of the Criminal Code (i.e. twice the time required to prescribe the offence) is exceeded for all the offences charged, without the person against whom it was issued having been traced, the judgement of non-prosecution becomes irrevocable.
Therefore, where the offence is not imprescriptible, the judgment of non-prosecution for lack of knowledge on the part of the defendant is capable of irreversibly defining the trial.
4.4.4.- In addition to reshaping the conditions for the declaration of absence, and therefore the system of ex ante guarantees, Legislative Decree No. 150 of 2022 also changed the framework of the ex post guarantees, following a binary logic, related to the type of event that is the subject of the remedy.
In general terms, where the absence has been "misdeclared", i.e. where the declaration does not correspond to any legal hypothesis of a procedural absence, the remedy is unconditional and regressive, with a definite downgrading of the trial to the time when the nullity occurred; if, on the other hand, the absence has been "well declared", i.e. in conformity with a legal hypothesis of non-precludable absence, the remedy is conditional and restitutory, in the sense that the defendant may obtain reinstatement of the procedural right from which he may have been deprived if he proves the innocent nature of the deprivation of liberty (thus Arts. 489, 604 and 623 of the Code of Criminal Procedure, respectively for the first instance, appeal and cassation, and even earlier Article 420-bis, paragraph 6, for the appearance of the defendant already at the preliminary hearing).
Still on the ex post facet of ex post guarantees, in an inverse movement to that made by law no. 67 of 2014, legislative decree no. 150 of 2022 narrowed the margins of the rescission of the judgement, but specularly enlarged those of the restitution within the time limit of ordinary appeals, in particular by transferring to the latter institute the hypothesis of the lack of knowledge of the vocatio in iudicium: indeed, art. 629-bis cod. proc. pen, amended by Article 37(1) of the aforementioned decree, conditions the extraordinary post iudicatum means to proof by the convicted person that the absence was declared in the absence of the prerequisites set out in Article 420-bis of the Code of Criminal Procedure, and that it was therefore "misdeclared"; at the same time, art. 11, paragraph 1, letter b), of legislative decree no. 150 of 2022 inserted in art. 175 cod. proc. penal, paragraph 2.1., whereby the defendant judged in absence is returned, at his request, within the time limit for lodging an appeal, if, in the cases provided for in art. 420-bis, paragraphs 2 and 3, provides proof that he did not have actual knowledge of the fact that the trial was pending and that he could not have lodged an appeal within the time limit through no fault of his own, which is irrespective of whether there was an error on the part of the judge in declaring the absence.
5.- Having set out the coordinates of the rules governing absence, it is possible first of all, from the point of view of the admissibility of the questions, to define their subject-matter and to ascertain, in particular, whether the provisions censured are in keeping with the facts of the case.
5.1.- The referring court has in fact denounced Article 420-bis of the Code of Criminal Procedure, in particular paragraphs 2 and 3 thereof, as amended by Legislative Decree No 150 of 2022, rather than the text in force at the time of the declaration of absence, despite the fact that this took place on 25 May 2021, therefore before the entry into force of that decree.
The order for reference points out that, due to the effect of the intertemporal provision of article 89, paragraph 2, of the same legislative decree no. 150 of 2022, the suspension of the trial having been ordered pursuant to the previous text of article 420-quater of the code of criminal procedure and the defendants not having been found yet, it would be necessary to issue a judgement of non-prosecution, based on the new text of the same article 420-quater.
The aforementioned transitional provision states that if, before the entry into force of the legislative decree, at the preliminary hearing or trial at first instance, a stay of proceedings was ordered pursuant to the previous text of Article 420-quater of the Code of Criminal Procedure and the accused has not yet been located, instead of ordering a new search, the judge shall proceed pursuant to the amended text of Article 420-quater.
The latter, on the other hand, provides that the judge shall only pronounce a judgement of non-prosecution for lack of knowledge of the pending trial on the part of the defendant "[f]or cases provided for in Articles 420-bis and 420-ter".
It must therefore be considered that, by denouncing Article 420-bis of the Code of Criminal Procedure as replaced by legislative decree no. 150 of 2022, the referring party intended to promote the examination of its constitutionality as a basis for a new declaration of absence, alternative to the pronouncement of a judgement of non-prosecution.
5.2.- Nor can the referring court be reproached for having failed to make an attempt at an adaptive interpretation.
The referring court has in fact reasoned that an interpretation aimed at allowing the presumption of the defendants' knowledge of the proceedings or the presumption of their intention to evade such knowledge, as a precondition for the declaration of absence, is impracticable in the light of the letter and the ratio of the provision censured.
Far from being implausible, and indeed found by the Court of Cassation in its aforementioned judgment no. 5675 of 2023, that argument is sufficient to exclude the failure to comply with the burden of conforming interpretation.
In fact, in accordance with this Court's settled case law, the burden of interpretation ceases to apply, giving way to the issue of constitutionality, when the referring court has consciously ruled out the possibility of an interpretation in conformity with the wording of the provision censured (most recently, among others, judgments nos. 104 and 25 of 2023, 193 and 96 of 2022).
5.3.- The relevance of today's questions is not affected either by the amendment of Article 169 of the Code of Criminal Procedure concerning service on the defendant abroad.
By replacing paragraph 1 of Article 169 of the criminal proceedings code, Article 10(1)(v) of legislative decree no. 150 of 2022 made it possible to address such notifications not only to the place of residence or abode of the person against whom proceedings are being taken, but also to the "place where abroad the person habitually carries on business".
However, this is not an option capable of absorbing the subject-matter of today's petitum, nor therefore capable of determining a lack of relevance of the issues, since - as noted (above, points 4.4.1. and 4.4.2.) - under the new Article 420-bis of the Code of Criminal Procedure the regularity of service is sufficient to proceed in absentia only if the service itself is effected at the defendant's own hands or at the hands of a person expressly delegated by him, whereas, in other cases, the method of service is barely an indication of actual knowledge of the pending trial.
5.4.- Lastly, again with regard to the relevance of the questions raised, it should be noted that the order for reference describes the case referred to in the issue of constitutionality as "failure to provide judicial assistance" or "refusal to cooperate by the State of the defendant's nationality or residence", conduct that the order itself ascribes to the Arab Republic of Egypt, on the basis of a series of circumstantial facts.
In accordance with settled case-law, this Court exercises an external review, based on the criterion of non-implausibility, over the reasoning of the order for reference as to the relevance of the questions (most recently, among many others, in judgments Nos 164, 151, 145 and 113 of 2023).
The referring court points to the fact that the Egyptian authorities - as is clear from the ministerial correspondence - oppose the principle of ne bis in idem on the basis of a mere decree of dismissal, adopted by the investigating body itself, without the scrutiny of a third judge, as a clear manifestation of their unwillingness to cooperate.
The order of referral emphasises that the assumption of the already completed and irrevocable closure of the investigation by the Egyptian Public Prosecutor's Office against the four agents of the National Security Agency was opposed to the Italian ministerial delegation - as the latter itself reported - even to deny the release of the addresses of the officials, where to serve the documents for the commencement of the criminal proceedings in Italy.
These are elements capable of corroborating as not implausible the submissions of the referring court concerning a lack of interstate cooperation, also in light of the other profiles illustrated in the report of the Department of Justice, to which the order for reference refers verbatim.
A further element comes from the Resolution of 24 November 2022 on the human rights situation in Egypt, in which the European Parliament "urges Egypt to cooperate fully with the Italian authorities' investigation into the murder of Italian doctoral student Giulio Regeni, who was tortured to death by security officials in 2016", in particular reiterating "its invitation to notify General [S. T.], Colonel [I. M. A. K.], Colonel [H. U.] and Major [S. A. M. I.] of the judicial proceedings against them in Italy" (paragraph 6).
6.- Nothing therefore stands in the way of an examination of the merits of the questions of constitutionality raised by the GUP of the Court of Rome.
Circumscribed in relation to the concrete case and the need to balance the underlying interests, these questions are well-founded, with reference to Articles 2, 3 and 117, first paragraph, of the Italian Constitution, the latter in relation to the New York Convention against Torture.
7.- Torture is a crime against the person and a crime against humanity.
It is in fact prohibited both by international criminal law and by international human rights standards, with such constancy and unambiguousness as to attribute to the prohibition an inderogable character, ascribing it to ius cogens of customary formation.
The Universal Declaration of Human Rights, adopted by the United Nations General Assembly on 10 December 1948, proclaims in Article 5 that "[n]o person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment".
The International Covenant on Civil and Political Rights, adopted by the United Nations General Assembly on 16 December 1966, states in Article 7 that '[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment; in particular, no one shall be subjected without his or her free consent to a medical or scientific experiment'.
Article 3 ECHR states that '[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment'.
The Statute of the International Criminal Court, or Rome Statute, signed on 17 July 1998, lists torture among the crimes against humanity (Art. 7.1.f), and, despite the collective dimension that befits these crimes, since they are committed as part of a widespread or systematic attack against civilian populations, provides for the perpetration of torture even against a single person ("severe physical or mental pain or suffering upon one or more persons": Elements of Crimes, Art. 7.1.f, point 1).
7.1.- The present petitioner invokes as an interposed parameter, through Article 117, first paragraph, of the Constitution, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the General Assembly of the United Nations on 10 December 1984 (from now on, also: CAT, Convention Against Torture).
Ratified by both Italy, with Law No. 498 of 1988, and Egypt, on 25 June 1986, it provides, in paragraph 1 of Art. 1, the definition of torture: "[f]or the purposes of this Convention, the term 'torture' means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for the purpose, inter alia, of obtaining from him or a third person information or a confession, punishing him for an act which he or a third person has committed or is suspected of having committed to intimidate or put pressure on him or her or to intimidate or put pressure on a third person, or for any other reason based on any form of discrimination, where such pain or suffering is inflicted by or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity. This term does not extend to pain or suffering resulting solely from, inherent in, or caused by lawful sanctions'.
Paragraph 2 of the same Article 1 shows that it is a minimum standard, which "is without prejudice to any international instrument or national law which contains or may contain more far-reaching provisions".
7.1.1. By specifying as the active subject "a public official" (to whom is equated "any other person acting in an official capacity, or at his instigation, or with his express or tacit consent"), Article 1 CAT delimits its sphere of application to so-called state torture, vertical or proper, in accordance with the internationalist tradition that represses torture as an abuse of public power.
The other constituent elements of the crime of torture are conventionally specified in the severity of the suffering inflicted ("severe") and in the intentionality of the infliction, the latter characterised in terms of specific intent ("with the particular aim of"), corresponding to the four-part notion of "judicial", "punitive", "intimidatory" and "discriminatory" torture.
7.1.2.- In the Italian legal system, the crime of torture, as a distinct title of offence, was introduced by Law No. 110 of 14 July 2017 (Introduction of the crime of torture in the Italian legal system), Article 1(1) of which inserted Articles 613-bis and 613-ter of the Italian Criminal Code, respectively for torture and incitement of a public official to commit torture.
The national legislator intended to go beyond the minimum standard set out in Article 1 CAT, since Article 613-bis of the Criminal Code also punishes so-called private, horizontal or improper torture (first paragraph), while establishing a more severe punitive treatment for torture committed by a public official (second paragraph), even though the latter is not a circumstantial offence compared to the other, but an autonomous offence (Court of Cassation, third criminal section, judgment 25 May-31 August 2021, no. 32380).
The posteriority of Law No. 110 of 2017 with respect to the time of commission of the facts that are the subject of the charges in question does not raise a problem of retroactivity in peius, since those charges are formulated without any reference to the supervening legal case, but rather - as the order for reference does not implausibly infer - with the description of "facts subsumed under the notion of torture given by art. l of the Convention", which "were punishable as early as February 2016 on the basis of the incriminating rules specified in the indictment request" (kidnapping, personal injury and murder, aggravated by torture, cruelty and abuse of public power).
7.1.3.- In order to avoid areas of impunity, Article 5 CAT allows for dual or triple national jurisdiction over torture offences, which must be prosecuted both by the territorial State of the perpetrator (paragraph 1(a)) and by the State of the alleged perpetrator (paragraph 1(b)), while it is left to the State of the victim's nationality to decide whether or not to exercise its jurisdiction (paragraph 1(c)).
This discretionary option was exercised by Law No. 498 of 1988, Article 3(1)(b) of which provides that a foreigner who commits an act abroad to the detriment of an Italian citizen which constitutes an offence classifiable as an act of torture within the meaning of Article 1 CAT is punishable under Italian law, at the request of the Minister of Justice.
In this way, the provision of Article 7, paragraph 1, number 5), of the penal code, whereby a foreigner who commits an offence abroad for which a special provision of law or an international convention establishes the applicability of Italian law, is punishable under Italian law.
For the investigation in Italy of the acts of torture inflicted on the citizen Giulio Regeni, the request of the Minister of Justice took place on 23 March 2016, as reported in the order of referral.
7.1.4.- Pursuant to Article 9, paragraph 1, CAT, States Parties shall "afford each other the widest possible judicial assistance" in any criminal proceedings relating to torture offences, including "the communication of all the evidence available to them and necessary for the purposes of the proceedings".
The communication of suspects' addresses, which is necessary for the service of procedural documents, clearly falls within the scope of "the widest possible" assistance.
8.- In its jurisprudence on Art. 3 ECHR, the Strasbourg Court has repeatedly distinguished between a procedural aspect ("procedural aspect") of the prohibition of torture and a substantive aspect ("substantive aspect"), since that prohibition may be violated not only by the material infliction of torture and cruelty, but also by the failure to carry out an effective and full investigation into the allegation of torture, since, when the investigation concerns allegations of serious human rights violations the "right to the truth" about the relevant circumstances of the case does not belong exclusively to the victim of the crime and his or her family, but also to other victims of similar violations and to the public at large, who have the "right to know what happened" (European Court of Human Rights, Grand Chamber, judgment of 13 December 2012, El-Masri v. Former Yugoslav Republic of Macedonia; then EDU Court, judgments 31 May 2018, Abu Zubaydah v Lithuania, and 24 July 2014, Al Nashiri v Poland).
In other words, Article 3 ECHR requires an "efficient criminal-law response", without which it is violated in the "procedural limb", even before the substantive aspect (EDU Court, judgment 16 February 2023, Ochigava v. Georgia).
9.- The procedural aporia denounced by the referring party reveals a legal loophole, which does not delay in manifesting the traits of a constitutional breach, as soon as it is related to the legal peculiarity of the crime of torture.
Without prejudice to the presumption of not guilty on the part of the four Egyptian officials, it cannot be denied that the conditions for a factual immunity extra ordinem, incompatible with the right to trial, as the primary expression of the supranational prohibition of torture and the obligation of States to prosecute it, have been objectively determined.
9.1.- Regardless of the reasons behind it, the Egyptian State's failure to provide the addresses of its employees has so far prevented, and is destined to prevent indefinitely, the holding of a trial that is vice versa imposed by the New York Convention against Torture, in line with general international law.
The impossibility of personally notifying the defendants of the notice of the preliminary hearing and the request for committal for trial, and thus of bringing to their attention the opening of the trial, entails in fact, on the basis of the current domestic legal framework, the need to issue against them the inappellable judgment of unacceptability, which, in turn, will probably never be able to fulfil the secondary function of vocatio in iudicium, also institutionally due to it, and which is indeed destined to become, with the passage of time, irrevocable for three of the four defendants, since they are called to answer for a time-barred offence, such as kidnapping.
9.2.- The universal status of the crime of torture - illustrated above on the basis of supranational declarations and treaties - is inherent in the radical impact of this crime on the dignity of the human person, which is at the heart of the preamble to the New York Convention against Torture.
The denounced legal loophole, by precluding the judicial establishment of the commission of crimes of torture, therefore offends the dignity of the person, and undermines his fundamental right not to be a victim of such acts; with the clarification that, under Directive (EU) 2012/29 of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime and replacing Framework Decision 2001/220/JHA, "victim" is also the family member of the person whose death was directly caused by the crime itself (Art. 2(1)(a)(ii)).
9.3.- Therefore, the legislative loophole denounced by the referring party violates Article 117, first paragraph, of the Constitution, in relation to the New York Convention against Torture; but it also violates Article 2 of the Constitution, in that, by preventing sine die the holding of a trial for the crime of torture, it nullifies an inviolable right of the person who was the victim of that crime. Indeed, in the exceptional statute of the crime in question, the right to judicial ascertainment is the procedural face of the duty to safeguard dignity.
9.4.- Moreover, the gap in the legislation censured by the referring party violates the principle of reasonableness under Article 3 of the Constitution.
In fact, this lacuna unreasonably opens up a space of criminal immunity, such as is found in a regulatory framework that prevents the same judicial investigations that have been provided for in the Convention from being carried out; investigations that are all the more necessary given that the Italian State, when ratifying the CAT, opted for the exercise of criminal jurisdiction over crimes of torture committed abroad to the detriment of its own citizens.
10.- The right of the accused to be present at the trial is in the nature of a fundamental right, guaranteed by Article 111 of the Italian Constitution and Article 6 of the ECHR, first and foremost through the fullness of cross-examination.
In particular, the third paragraph of Article 111 Const, in harmony with paragraph 3 of Art. 6 ECHR, states that "[i]n criminal proceedings, the law shall ensure that the person charged with a criminal offence is, as soon as possible, informed confidentially of the nature and cause of the accusation against him; he has the necessary time and conditions to prepare his defence; has the right, before the court, to question or have questioned the persons who make statements against him, to obtain the summoning and questioning of persons in his defence under the same conditions as those of the prosecution and the obtaining of any other evidence in his favour; is assisted by an interpreter if he does not understand or speak the language used in the trial.
As this Court recalled in its judgment no. 65 of 2023, the defendant's right to participate is, moreover, functional to the exercise of so-called self-defence, which is distinct and additional to the technical defence.
The constitutional breach produced by the gap in the legislation in question must therefore be reduced to legitimacy by internal lines of the system of guarantees, without any sacrifice or conditioning of the defendant's participatory faculties, but only by a different temporal scanning of their exercise.
Moreover, this is not a perspective that is alien to the European statute of procedural absence.
11.- Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings stipulates that "[m]ember States shall ensure that suspected and accused persons have the right to be present at their trial" (Art. 8(1)).
Member States - the Directive adds - "may provide that a trial which may result in a decision that the suspected or accused person is guilty or innocent may take place in his absence, provided that (a) the suspected or accused person was informed of the trial and of the consequences of not appearing in due time; or (b) the suspected or accused person, having been informed of the trial, is represented by a legal counsellor appointed either by the suspected or accused person or by the State" (Art. 8(2)).
Furthermore, "[w]henever Member States provide for the possibility of holding trials in the absence of the suspected or accused person, but it is not possible to fulfil the conditions of paragraph 2 of this Article because the suspected or accused person cannot be located despite reasonable efforts, Member States may nevertheless allow a decision to be taken and executed", and "[i]n such a case, Member States shall ensure that suspected or accused persons, once they are informed of the decision, in particular when they are arrested, are also informed of the possibility of challenging the decision and of the right to a retrial or other legal remedy in accordance with Article 9" (Art. 8(4)).
There is in fact, in the economy of Directive 2016/343/EU, a teleological connection between the 'right to be present at the trial' in Article 8 and the 'right to a retrial' in Article 9, the coordinated aim of which is that - ex ante or ex post - the accused has all participatory faculties available to him.
For Art. 9, indeed, "[t]he Member States shall ensure that, where suspected or accused persons have not been present at the trial and the conditions of Article 8(2) have not been met, they have the right to a retrial or other legal remedy allowing the merits of the case to be re-examined, including the consideration of new evidence, and may lead to the original decision being quashed", and "[i]n this context, Member States shall ensure that such suspects or accused persons have the right to be present, to participate effectively in accordance with the procedures provided for in national law and to exercise the rights of the defence".
11.1.- Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States provides for the execution of the warrant for sentencing in absentia where the defendant is informed of the "right to a retrial", which allows "the merits of the case to be re-examined" and may "lead to the original decision being reformed" (Article 4a(1)(d)(i)).
11.2.- The Court of Justice of the European Union has clarified the rationale and conditions of the right to a retrial in absentia, in dialectic with the defendant's right to a new trial on the merits.
It has thus clarified that the repetition in the presence of procedural activities, such as a witness taking previously carried out in absence, has a restorative character, in the perspective of the new trial guaranteed by Directive 2016/343/EU (judgment of 13 February 2020, in Case C-688/18, TX and others).
In interpreting Article 4a of Framework Decision 2002/584/JHA, the Court of Justice has also excluded that the uncertainty as to whether the surrendering State will guarantee the right to retrial under Articles 8 and 9 of Directive 2016/343/EU, the defendant being able in any event to demand the implementation of the latter in that same State (judgment of 17 December 2020 in Case C-416/20 TR).
Of considerable importance, in general terms and for the case now under scrutiny, is the judgment of the same Court of 19 May 2022, in Case C-569/20, IR, according to which Articles 8 and 9 of Directive 2016/343/EU are to be interpreted as meaning that 'a defendant whom the competent national authorities, despite their reasonable efforts, are unable to trace and to whom those authorities have failed, for that reason, to communicate information about the trial held against him, may be the subject of a trial and, if appropriate of a conviction in absentia, but must in such a case, in principle, have the possibility, following the service of that conviction, of relying directly on the right, recognised by that directive, to have the trial reopened or to have access to an equivalent legal remedy leading to a fresh examination of the merits of the case in his presence; that right may be denied to the accused only 'where it is clear and objective from precise and objective evidence that he has received sufficient information to be aware that a trial was to take place against him and, by deliberate acts and with a view to evading the course of justice, has prevented the authorities from officially informing him of that trial' (paragraph 59).
Premised therefore on the fact that the trial can take place in absence only if preceded by "reasonable efforts" of the authorities to locate the defendant for service, this decision, reversing the burden of proof with respect to the logic of contumacious, emphasises that a defendant tried in absentia due to the impossibility of tracing must be able to exercise unconditionally ("in principle") his right to a retrial on the merits, it being incumbent on the authorities, who wish to deny that right, to adduce "precise and objective indications" showing that the defendant has received sufficient information about the trial.
The convergence with the Strasbourg case-law on the defendant's right to a "fresh determination of the merits of the charge", to which indeed the judgment of the Court of Luxembourg makes explicit reference (paras. 51-53), is clearly visible.
12.- In conclusion, the constitutional infringement denounced by the referring party can and must be remedied by means of a reorganisation of the defendant's guarantees of participation, not a qualitative or quantitative reorganisation, but an exclusively temporal one, albeit within the framework traced by the rules on absence, as mentioned above.
The additional case of non-precludable absence, which is such as to avoid a constitutionally and conventionally intolerable procedural paralysis, must in any case be respectful of the principle of due process.
12.1.- The referring party censures paragraphs 2 and 3 of Article 420-bis of the Code of Criminal Procedure, in the text amended by legislative decree no. 150 of 2022, but the proper place for the addition that he requests, and that the Constitution requires, must be specifically identified in paragraph 3, since this regulates, in the function of closing the system ("also outside the cases referred to in paragraphs 1 and 2"), the hypotheses in which the absence of the defendant is not impeded even in the absence of proof of his "knowledge of the pending trial".
As already mentioned, the hypotheses currently indicated in paragraph 3 of Art. 420-bis concern absconding and any "other manner" of voluntarily evading the defendant's "knowledge of the pendency of the trial".
These are situations in which the system does not consider absence to be an impediment despite the lack of "knowledge of the pendency of the trial", and which nevertheless postulate knowledge of the proceedings, i.e. of the assumption of the quality of suspect pursuant to Article 335 of the Code of Criminal Procedure.
In fact, in order to "voluntarily" evade knowledge of the pendency of the "trial", and therefore the notification of the act of bringing the criminal action, the suspect knows that he is such, even though he is in a position to ignore the vocatio in iudicium.
12.2.- It therefore emerges from the current legal framework that, in exceptional cases, proceedings may be brought in the absence of a defendant even if it is not proven that he is aware of the pending trial.
These exceptional cases must include the hypothesis that is the subject of the questions under scrutiny, otherwise perpetuating, together with the lacuna in the legislation, the harm it inflicts on the aforementioned constitutional parameters.
13.- Moving along internal lines of the system, as mentioned above, the additional case of non-impedimentary absence must replicate this duplicity of planes, being unable to disregard the defendant's knowledge of the proceedings and limiting itself to affecting the further level of knowledge of the arraignment.
The abstract case applies to the concrete case, as is clear from the external verification of the grounds of the order of remittal in point of relevance.
In fact, the order refers to the fact that the decision by which the Rome Assize Court annulled the declaration of absence of the four Egyptian officials acknowledged "the defendants' general knowledge of the existence of criminal proceedings against them for serious offences against the researcher Giulio Regeni", albeit "without demonstrating with a reasonable degree of certainty that they had sufficient knowledge of the criminal proceedings and the charges".
This assessment by the Assize Court, together with the consequent order of suspension by the Judge for the Public Prosecutor's Office of the Court of Rome, was held to be free from defects in the aforementioned judgment of the Court of Cassation no. 5675 of 2023, which, it too, focused on knowledge not of the proceedings, but of the vocatio in iudicium, in particular emphasising that certain indications of the defendants' awareness were "prior to the prosecution being brought in Italy", and therefore unsuitable for guaranteeing them knowledge of the "precise timing of the trial".
13.1.- It is quite clear that the Italian legal system has witnessed a progressive shifting of the focus of the findings of absence from knowledge of the "proceedings" to knowledge of the "trial".
Already in an early judgment, the Court of Cassation had ruled that knowledge of the accusation evinced by the notice of conclusion of preliminary investigations was not an obstacle to remittance within the time limit for appeal of the default judgment pursuant to Article 175(2) of the Italian Code of Criminal Procedure, conversely, knowledge of the trial taken from a formal act of vocatio in iudicium was required (Criminal United Sections, judgment 28 February-3 July 2019, no. 28912).
Even more incisively, a subsequent ruling, concerning the circumstantial value of the election of domicile with the public defender for the purposes of the declaration of absence pursuant to art. 420-bis of the old code of criminal procedure, excluded the configurability of presumptions of knowledge of the trial, since "[t]he basis of the system is that the party is personally informed of the content of the charge and of the day and place of the hearing", and it is in fact this - the Court continued with regard to the amendment of art. 175 of the code of criminal procedure - "reason why the system of the appointment of a public defender is not based on the knowledge of the defendant, but on the fact that the party is personally informed of the content of the charge and of the day and place of the hearing". - "the reason why the system, by introducing the rule of certainty of knowledge of the trial, excluded the 'unconditional' right to a new trial on the merits in favour of the person judged to be absent" (Court of Cassation, Criminal United Sections, judgment 28 November 2019-17 August 2020, no. 23948).
Lastly, a comparison between the text of Article 420-bis of the Code of Criminal Procedure prior to legislative decree no. 150 of 2022 and that of the decree itself, as amended, clearly shows the translation of the parameter of the declaration of absence from "knowledge of the proceedings" to "knowledge of the pendency of the trial".
13.2.- It is, however, clear that the extension of this advancement of the procedural requirements also to the case under examination determines the paralysis of the trial from the outset, since the lack of assistance of the defendant's State of nationality makes it impossible to personally notify the defendant of the formal documents of the vocatio in iudicium, leaving it irrelevant that he is aware of the criminal proceedings.
Such an epilogue of radical frustration of the process is not acceptable, under domestic, European and international constitutional law, when it results in the creation of a de facto immunity obstructing the investigation of crimes of torture.
Such an immunity - as has already been said - would in fact be, at one and the same time, detrimental to the inviolable rights of the victim with respect to an extreme crime against the dignity of the person (art. 2 Const.); unreasonable in the face of the right-duty claimed and assumed by the Republic to prosecute such misdeeds (art. 3 Const.); in breach of the international standards of protection of human rights, acknowledged and promoted by CAT (art. 117, first paragraph, Const.).
14.- The order of referral calls for an additive ruling that is not circumscribed by the title of the offence.
However, the decision to uphold the ruling must be delimited consistently with both the assumptions of relevance of the issues as identified above and the international obligations, which for the crime of torture justify a composition of the participatory guarantees in the terms specified below.
The constitutional illegitimacy of the alleged legal loophole, and the need to amend it by means of the requested additive ruling, does not therefore concern every hypothetical case in which personal notification of the defendant's indictment is rendered impossible by the lack of assistance from the State of the defendant's nationality, but relates exclusively to charges of torture, in respect of which only improper prosecution under the above-mentioned conditions results in the violation of Articles 2, 3 and 117, paragraph 1, of the Italian Constitution, the latter in relation to the New York Convention against Torture.
The constitutionally appropriate additional case is therefore limited to the trial of crimes committed by means of acts of torture as defined in Article 1, paragraph 1, CAT.
14.1.- The objective delimitation for the title of the offence is matched by a subjective delimitation for the quality of the perpetrator, who, according to Article 1(1) CAT, is only the "public official", to whom is equated "any other person acting in an official capacity, or at his instigation, or with his express or tacit consent".
This subjective delimitation assumes a special significance with respect to the hypothesis in question - i.e. the lack of assistance from the defendant's State of nationality - given the bond that binds the public apparatus to its officials.
15.- As mentioned above (paragraph 12 above), the constitutional violation noted can and must be remedied by means of a reorganisation of the guarantees of participation that is in any case respectful of the fundamental rights protected by Articles 111 of the Constitution and 6 of the ECHR.
According to the concise formula set out in Article 9 of Directive 2016/343/EU, the "right to a retrial", which, taking place in the presence of the defendant and at his request, "allows the merits of the case to be re-examined, including the examination of new evidence, and may lead to the reform of the original decision" (paragraph 11 above), must therefore be preserved.
In the terms of the Strasbourg case-law, the defendant must be guaranteed unconditional access to "a re-assessment of the merits of the charge" (paragraph 4 of the Recital in law).
This result, which it will be for the common court to implement in the specifics of each case, can be achieved by means of the reopening of the trial, to which the defendant, in the present case, is entitled by reason of the very conditions of his absence.
15.1.- The additional case of procedability in absence, which is the subject of the present decision, in fact allows the defendant to have access without limits or conditions to the remedial system devised by legislative decree no. 150 of 2022.
It has been pointed out that this has a binary connotation, in that the absence wrongly declared by the judge corresponds to an unconditional remedy of backtracking the trial to the time when the nullity occurred, while the 'well-declared' absence is associated with a conditional remedy of restitution in the trial faculties from which the defendant can prove that he is not to blame (supra, paragraph 4.4.4.).
Now, what is at issue here, i.e. that the personal service of the documents of vocatio in iudicium was not possible due to the cooperative inertia of the State of origin, is a hypothesis in which the proof of the defendant's non-liability must be considered in re ipsa, resulting from the same constituent elements of the case of procedural absence.
Kept in the dark about the procedural events by a factum principis (the uncooperative conduct of his State of nationality), the defendant, although aware of the proceedings, must be presumed through no fault of his own to be unaware of the course of the trial, and therefore has free access to the reinstatement of the procedural faculties that he considers he should exercise.
In other words, he, in accordance with the canons established by the IR ruling (supra, para. 11.2. ), because he is untraceable by the prosecuting authorities despite their "reasonable efforts", can be the subject of a trial in absence, but can "directly" assert the right to a retrial leading to a review of the merits of the case in presence, whereas it is the burden of the authorities themselves, who intend to deny the reopening of the trial to attach "precise and objective indications" from which it appears that the defendant, despite the uncooperative attitude of his State of nationality, "received sufficient information to be aware that a trial would be held against him and, by deliberate acts and in order to evade the course of justice, prevented the authorities from officially informing him of that trial".
15.2.- Therefore, even if the absence that is the subject of today's additive has been "well declared", the defendant can obtain the restoration of his procedural faculties, and this at any time, simply by appearing, even before the pronouncement of a possible conviction, and therefore even without recourse to an appeal.
This conclusion is substantiated by the applicability, in the hypothesis under consideration, of the restitutory remedies provided for by the provisions of the Code of Criminal Procedure, which, with reference to the different stages and degrees of the trial, variously imply that the defendant must prove that he did not have knowledge of the trial and that he could not have intervened without his fault to exercise the relevant faculties.
Reference is made, in particular, to art. 420-bis, para. 6, in relation to the possibility of revocation of the order declaring absence; to art. 489, para. 2-bis, letter b), in relation to the conduct of the preliminary hearing; to art. 604, para. 5-ter, letter b), for the appeal trial; and to art. 623, para. 1, letter b-bis), in relation to the cassation trial.
In addition, Article 175(2.1) of the Code of Criminal Procedure makes the return within the appeal time limit subject to the same conditions. the restitution within the appeal period of the sentence pronounced in absence, with the further clarification that, pursuant to paragraph 2-bis of the same article, the time limit for the presentation of the relative request by the defendant runs only from the personal knowledge that he has had of the sentence ("effective knowledge of the measure") or, in the case of extradition from abroad, "from the delivery of the sentenced person" (which in turn presupposes personal knowledge of the sentence being executed).
16.- The case of absence in question does not therefore entail any intervention in the framework of the guarantees outlined by legislative decree no. 150 of 2022, which on the contrary is applicable to it as it stands, except for the relevatio ab onere probandi from which the defendant benefits by virtue of the objective conformation of the case itself.
On the other hand, in view of the clear breach of constitutional and supranational principles resulting from immunity for crimes of torture, the legislature's reserve of discretion in procedural matters, which this Court has also had occasion to affirm with regard to the mechanisms for notifying the summons and conducting the trial in absentia (judgment no. 31 of 2017), cannot be said to be an obstacle.
17.- The very broad possibility of reopening and renewing the trial to which the defendants are entitled in the present case, which is necessary for compliance with the requirements of Articles 111 of the Constitution and 6 ECHR, does not, however, reduce the trial itself to a simulacrum.
The investigation of crimes of torture in the public forms of the criminal trial corresponds to a constitutional and supranational obligation, and for that reason alone it is never useless, where even external circumstances deprive it of the defendant's cross-examination.
The defendant himself, moreover, remains guaranteed every right to make his voice heard.
18.- For all the foregoing reasons, it is necessary to declare the constitutional illegitimacy of Article 420-bis, paragraph 3, of the Code of Criminal Procedure, for violation of Articles 2, 3 and 117, first paragraph, of the Italian Constitution, the latter in relation to the New York Convention against Torture, in so far as it does not provide that the judge shall proceed in absentia for offences committed by means of acts of torture as defined by Article 1, paragraph 1, of the same Convention, when, owing to the lack of assistance of the State to which the defendant belongs, it is impossible to have proof that the latter, although aware of the proceedings, was made aware of the fact that the trial was pending, without prejudice to the right of the defendant himself to a new trial in presence for the re-examination of the merits of the case.
The questions of constitutional legitimacy raised with reference to Articles 24, 111 and 112 of the Constitution remain absorbed.
on these grounds
THE CONSTITUTIONAL COURT
Declares the constitutional illegitimacy of Article 420-bis, paragraph 3, of the Code of Criminal Procedure, insofar as it does not provide that the judge shall proceed in absence for offences committed by means of acts of torture as defined in Article 1, paragraph 1, of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted in New York on 10 December 1984, ratified and made enforceable by Law no. 498 of 3 November 1988 498 of 3 November 1988, when, owing to the lack of assistance of the State of the defendant's nationality, it is impossible to have proof that the defendant, although aware of the proceedings, was made aware of the fact that the trial was pending, without prejudice to the right of the defendant himself to a retrial in the presence of the court for the re-examination of the merits of the case.
Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 27 September 2023.
F.to:
Silvana SCIARRA, President
Stefano PETITTI, Editor
Roberto MILANA, Director of the Chancellery
Filed at the Court Registry on 26 October 2023
The Director of the Chancellery
F.to: Roberto MILANA