A non Italian speaking defendant who complains about the violation of his defense rights, as a result of the failure to translate the measure adopted against him and the procedural sequence that originates from that act, cannot simply complain about the omission he has the burden of indicating the existence of a concrete, current and verifiable interest in the appeal, the mere allegation of an abstract or potential prejudice not being relevant in this sense.
The translation of a judgment that the non Italian speaking defendant cannot personally challenge does not increase his or her rights of defense either quantitatively or qualitatively, and that no concrete limitation of those rights can really result from non-translation: in keeping with national and supranational jurisprudence, it seems difficult to argue that it can cause an impairment of the rights of defense of the non Italian speaking defendant, who, in any case, retains the right to participate personally in the judgment with the help of an interpreter, and enjoys the continuous technical assistance of his or her defense counsel.
Since an unlimited right to translation of all measures taken and all documents acquired in the course of the proceedings - which would unreasonably frustrate requirements of celerity, efficiency and cost containment, which must certainly be taken into account - is inconceivable, it seems reasonable to consider the maximum expansion of that right only in those cases in which the act or document to be translated is actually instrumental to the exercise of the alloglotto's defensive faculties: the translation even of a deed that should be mandatorily translated cannot depend simply on the nomen iuris of the measure, but should be granted only if and only when the deed has a direct and concrete impact on the actual exercise of the non Italian speaking defendant's defensive faculties.
Italian Court of Cassation
sec. I Criminal, ud. Dec. 5, 2024 (dep. Feb. 4, 2025), no. 4408
President Santalucia - Rapporteur Toriello
Held in fact
1. In a judgment of July 15, 2024, the Justice of the Peace of Pistoia sentenced M.A. to a fine of €5,000, “because, as a non-EU foreign national, he entered the territory of the State or otherwise abusively stayed there in the absence of the required residence permit. Fact ascertained in Pistoia on (OMISSIS).”
Considering that the material and subjective elements of the crime had been proven, the Justice of the Peace rejected the request for acquittal on the grounds of ne bis in idem made by the defense counsel, noting that “he has never been convicted under Article 10 bis of Legislative Decree 286/1998, in fact, the first sentence No. 362/2021 is actually a judgment of acquittal because the defendant at the time of the verification occurred for the facts charged against him was legally present in Italy. As for sentence No. 1376/2022, on the other hand, there is a sentence pursuant to Article 34 of Legislative Decree No. 274/2000 because the fact of particular tenuity convinced the judge to issue a judgment of non-prosecution for similar facts that occurred until August 4, 2019": therefore, the contested facts referred to different times, had been committed in different places, nor could the ne bis in idem procedural ex art. 649 cod. proc. penal be invoked, “since the defendant has always been either acquitted or there has been a judgment of NDP for previous facts.”
2. M.A.'s defense counsel, Adv. GO, appealed the judgment in question, articulating two grounds in which he alleges violation of the law and failure to state reasons.
In the first plea, he complains about the failure to translate the sentence in favor of the alloglocal defendant. He points out that, following the prosecution, the justice of the peace had declared the summons to be null and void precisely because of the failure to translate the documents into the language spoken by M.A.: the new decree, issued on March 23, 2023, had, therefore, been translated before it was served on M.A., while a similar requirement had not been made in relation to the judgment.
In his second plea, he complains about the defendant's failure to be acquitted under Article 649 of the Criminal Code. It represents that it has documented that M.A. had already been brought to trial in two separate proceedings for the same crime now in dispute: by judgment no. 362/2021, irrevocable on September 16, 2021, he had been acquitted of the crime ascertained on October 15, 2016 in Florence; by judgment no. 1376/2022, irrevocable on July 21, 2023, he was declared not to be prosecuted pursuant to Article 34 of Legislative Decree No. 274 of August 28, 2000, in relation to the crime ascertained on August 4, 2019 in Florence. It highlights that the previous sentences have concerned the “same fact,” “identical in all its elements and in the conditions of time, place (national territory) and person,” pointing out that “the Supreme Court has repeatedly affirmed that the conduct of the crime under consideration of ‘detention / stay’ on national territory integrates a crime of a permanent nature,” and that no barrier to the operation of the prohibition of bis in idem can be in the presence of an “open” charge, such as the one raised against M.A, the prosecutor having indicated in the indictment only the date of the investigation, and, therefore, the initial date of the permanence, on the assumption that the permanence was still in progress at the time of the prosecution.
3. The Deputy Attorney General requested that the judgment under appeal be annulled without referral, deeming the first ground of appeal to be well-founded and absorbing, in light of the principle of law established, on the subject of pre-trial detention orders, by Sec. U, No. 15069 of 26/10/2023, dep. 2024, Niecko, Rv. 286356 - 01.
Considered in law
1. The appeal is unfounded and must, therefore, be dismissed.
2. As for the failure to translate the judgment into the language known to the defendant who is an allochthonous (non Italian speaking, in Italian "alloglotto", note added) person, it should be noted that the most shrewd doctrine qualifies the right to language assistance as a meta-right, i.e., a right instrumental to the full exercise of any other right of defense, since, without an understanding of the procedural event and its essential acts, the allochthonous person cannot consciously participate in the proceedings: the circumstance that the first EU fair trial law was Directive 2010/64/EU, on the right to interpretation and translation in criminal proceedings, unequivocally reveals that language is one of the foundations on which the European area of justice was built.
The parties who do not speak the language of the State in which the proceedings are held must, therefore, be put in a position to know and understand the acts and measures, and to participate by expressing themselves in their own language: this guarantees equal conditions of access to justice for the non-native speakers, and, thus, the broader right to a fair trial, in harmony with what is generally enshrined in Art. 3 of the Treaty of the European Union (the Union “respects the richness of its cultural and linguistic diversity”) and Articles 21 and 22 of the Charter of Fundamental Rights of the Union (which prohibit any discrimination based on linguistic diversity), and with what is prescribed, with regard to criminal proceedings, by Art. 5(2) and 6(3)(a) and (e) of the European Convention on Human Rights, which recognize the right of the arrested or otherwise charged person to be informed in the language he or she understands, as soon as possible, “of the reasons for his or her arrest and of any charge against him or her” (Art. 5), and “of the nature and grounds of the charge against him” (Art. 6(a)), guaranteeing him, as well, the right to “be assisted free of charge by an interpreter” if he does not understand or speak the language used in court (Art. 6(e)).
The evolutionary jurisprudence of the apex courts has completed the path of actualization of the general principle of language protection, extrapolating several corollaries from the basic canon of the right to an interpreter, so as to give more and more concrete effectiveness to the value of the conscious participation of the alloglotto in the proceedings: thus, the right to linguistic assistance even during the preliminary investigation phase has been progressively affirmed (EDU Court, Sec. III, Jan. 5, 2010, Diallo v. Sweden); the gratuitousness of translation and interpreting rights (EDU Court, Nov. 28, 1978, Luedicke, Belkacem and Koç v. Germany); and the extension of the right to assistance also to those who - although knowing the elementary features of the idiom - have a linguistic level not useful for understanding the “legal meaning” of the document (EDU Court, GC, June 28, 2005, Hermi v. Italy).
With regard more specifically to the right to translation, it should be noted that, although the cited provisions of the European Convention refer only to interpretation, the right to linguistic assistance has never been confined to oral statements made at a hearing, but has also been recognized in relation to written documents: ever since the just cited EDU Court, November 28, 1978, Luedicke, Belkacem and Koç v. Germany (see § 48), it has been held that an allochthonous defendant has the right to the free assistance of an interpreter so that he or she may have translated or at least interpreted all the acts of the proceedings instituted against him or her of which, in order to benefit from a fair trial, he or she must grasp the meaning (in terms, most recently, EDU Court, Sec. III, Feb. 24, 2005, Husain v. Italy).
Alongside the right to interpretation there is, therefore, a right to translation which, however, according to Strasbourg jurisprudence, does not affect all the evidence gathered and all the documents acquired and formed in the course of the proceedings, but concerns only the acts functional to the conscious exercise of the right of defense: it must, therefore, undoubtedly be translated any document that the defendant needs to know in order to understand the accusation made against him (e.g., the indictment, i.e., the document containing the accusation, which the defendant must know analytically, in order to adequately prepare his defense), or to defend himself by presenting his version of the facts to the judge.
Consequently, in relation to the judgments, the EDU Court has espoused a restrictive hermeneutic line: the right to translation has not always and in all cases been affirmed, the actual need to activate linguistic assistance being assessed on a case-by-case basis, in light of the peculiar characteristics of the concrete case; for example, in EDU Court, Sec. III, July 16, 2009, Baka v. Romania, despite the failure to translate the conviction, it was held that there had been no violation of Art. 6(3)(e) of the Convention, since the convicted person had never complained during the trial that he had not understood the content of the decision (see § 73); in EDU Court, Dec. 19, 1989, Kamasinski v. Austria, it was held that, as a result of the mere oral explanation of the sentence, the defendant had been put in a position to knowingly challenge it, not least because he was assisted by counsel (see § 85).
The latter pronouncement is part of the Strasbourg Court's very large body of case law according to which translation can be validly superseded by oral interpretation: for example, in the aforementioned Husain v. Italy, the Court ruled that “oral linguistic assistance may satisfy the requirements of the Convention,” provided that it allows the defendant to be aware of the proceedings against him and to defend himself by submitting his version of the facts to the judge; a similar principle was affirmed in EDU Court, Sec. III, Jan. 11, 2011, Hacioglu v. Romania, in EDU Court, Sec. III, Jan. 5, 2010, Diallo v. Sweden, and in EDU Court, Sec. IV, Feb. 24, 2009, Protopapa v. Turkey.
It may, therefore, be noted that in multiple decisions the EDU Court has ruled that failure to provide a written translation of a judgment does not in itself render the proceedings unfair.
2.1. The principles outlined so far have been enshrined in Articles 3 and 4 of Directive 2010/64/EU, and in Article 7 of Directive 2012/29/EU, which have reaffirmed the essentiality of the rights to interpretation and translation, which are posited as “micro-rights” on whose contextual interaction rests the “macro-right” to language assistance.
Directive 2010/64/EU finds application, according to its first article, to criminal proceedings and proceedings for the execution of the European Arrest Warrant; it does not contain an actual definition of “criminal proceedings,” but states, in circumscribing its scope of application, that the right to interpretation and translation “shall apply to persons who are made aware by the competent authorities of a Member State, by official notification or otherwise, that they are suspected or accused of a criminal offence, until the conclusion of the proceedings, that is, until the final decision as to whether they have committed the offence, including, where appropriate, the imposition of the sentence and the exhaustion of pending applications” (Art. 1(2)): thus, the right to linguistic assistance arises from the moment the person becomes aware of the existence of the criminal proceedings instituted against him or her, and remains until the finality of the decision on the merits of the charge.
With regard to the right to translation, Article 3 of the directive enshrines the obligation for member states to ensure that suspects and accused persons who are not nationals, “within a reasonable period of time, receive a written translation of all documents that are essential to ensure that [defendants] are able to exercise their rights of defense and to protect the fairness of the proceedings”; among the “essential documents” that must always be translated, identified directly by paragraph 2 of the same Article 3, are, without further specification, “judgments.” The further paragraphs of Art. 3 of the directive introduce two significant temperaments to the obligation to translate “essential documents”: the first, outlined by para. 4, is quantitative in nature (“passages of essential documents that are not relevant for the purpose of enabling suspects or defendants to know the charges against them need not be translated”), and confirms the very close correlation between translation and the exercise of defense rights; the second, dictated by para. 7, is qualitative in nature (“By way of derogation from the general rules laid down in paragraphs 1, 2, 3 and 6, an oral translation or oral summary of essential documents may be provided instead of a written translation, provided that such oral translation or oral summary does not prejudice the fairness of the proceedings.”), expressly providing for the possibility of replacing the written translation of the essential document with immediate forms of oral translation, either complete (the so-called sight translation, which covers the entire act), or partial (the so-called summary interpretation, a summary of the essential parts of the act).
Directive 2012/29/EU extended the language protection already afforded to suspects and defendants to victims of crime, providing in the third paragraph of Article 7 that “Member States shall ensure that a victim who does not understand or speak the language of the criminal proceedings in question is provided [...] upon request, with translations of the essential information so that he or she can exercise his or her rights in the criminal proceedings in a language he or she understands, free of charge, to the extent that such information is made accessible to the victim. The translations of such information shall include, at a minimum, the decision terminating the criminal proceedings relating to the crime suffered by the victim and, upon the victim's request, the statement of reasons or a brief summary of the reasons for the decision, except in the case of a jury decision or a decision whose reasons are confidential, in which case the same shall not be provided under national law.” thus, a provision that is in one sense broader than that contained in the 2010 directive-because the measures that an allochthonous person can know in his or her own language include not only judgments, but also decrees and orders of dismissal, which are certainly “decisions that put an end to the proceedings”-and in another sense more limited, since the right to translation is subject to the request of the person concerned and can be limited to the decision alone, without including, except in summary form, the reasons for the decision.
The same temperaments already analyzed above are also provided for the crime victim's right to translation, as the sixth paragraph of Article 7 prescribes that “notwithstanding paragraphs 1 and 3, an oral translation or oral summary of essential documents may be provided instead of a written translation, provided that such oral translation or oral summary does not prejudice the fairness of the proceedings.”
2.2. In our legal system, the reformulation of the third paragraph of Article 111 Const. and the legislative decrees implementing the Stockholm Directives (Legislative Decree No. 32, March 4, 2014; Legislative Decree No. 129, June 23, 2016) have disrupted the traditional regulatory framework based on the exclusivity of the use of the national language.
With regard more directly to the aspect of the translation of acts, the system introduced by the aforementioned normative texts has a binary nature: on the one hand, it identifies in peremptory terms the acts subject to mandatory translation (Article 143, paragraph 2, Code of Criminal Procedure), with a listing that is certainly broader than that contained in Article 3, par. 2, of Directive 2010/64/EU; on the other hand, it provides that the judge, ex officio or accepting the party's request, may order “the free translation of other acts or even only part of them, deemed essential to enable the defendant to know the charges against him” (Art. 143, paragraph 3, Code of Criminal Procedure), and grants the offended person the right to written, oral or summary translation “of acts, or part thereof, that contain information useful for the exercise” of his or her rights (Art. 143-bis, paragraph 4, Code of Criminal Procedure).
The legal framework is completed by Art. 51-bis disp. att. cod. proc. pen, which, in paragraph 2, allows the judicial authority-in the presence of “particular reasons of urgency” that prevent “promptly having a written translation”-to order by reasoned decree the oral translation, also in summary form, with simultaneous phonographic reproduction, of the acts subject to compulsory translation, provided that there is no prejudice to the defendant's right of defense, and, in paragraph 3, provides that the defendant may, personally or through a special attorney, knowingly and expressly waive (not interpretation, but only) the written translation, which, in such cases, will still be replaced by an oral translation, also in summary form, which must be phono-recorded (so that the quality and correctness of the translation are documented and always susceptible to control).
Thus, the new regulatory framework expressly recognizes the defendant's right to a written translation of the main acts of the proceedings, to be carried out “within a reasonable period of time such as to allow the exercise of the rights and faculties of the defense” (Article 143, paragraph 2, Code of Criminal Procedure), and includes sentences among these acts.
The wording of the rule would seem to configure an absolute right to written translation of the acts listed in the paragraph of Article 143 of the Code of Criminal Procedure, depriving the proceeding authority of any discretion, both as to the an, and as to the extent of the translation: it should, therefore, be inferred that there is an obligation to translate in full every sentence, conviction or acquittal, given the generic, and therefore potentially all-inclusive, formula used by the legislator, and given that the possibility of limiting the translation to the parts of the measure functional to the exercise of the rights of defense was provided only for acts other than those mentioned by Article 143, paragraph 2, of the Code of Criminal Procedure.
It is necessary, however, to consider that both supranational sources and the provisions of our legal system foreshadow a necessary link of instrumentality between language assistance and the rights of the defense: Art. 3 of Directive 2010/64/EU, insofar as it recognizes the right to translation only in relation to documents that may be deemed “essential” to ensure that suspected or accused linguists “are able to exercise their rights of defense,” and to “protect the fairness of the proceedings”; Art. 143, para. 2, Code of Criminal Procedure, insofar as it requires that the translation be carried out “within a reasonable period of time such as to allow the exercise of the rights and faculties of the defense”; Art. 143-bis, paragraph 4, Code of Criminal Procedure, insofar as it limits the right of the offended person to translation to those acts that “contain information useful for the exercise of his or her rights.”
The textual tenor of Article 143 of the Code of Criminal Procedure. thus clearly suggests that written translation is not performed to satisfy a mere need for knowledge, but is instrumental to the “exercise of the rights and faculties of the defense.” if this were not the case, it would not explain why it was made obligatory only in relation to certain acts of the proceedings, nor why it was provided for only in favor of the defendant, and not also of the convicted person; moreover, these are conclusions perfectly superimposable on those - referred to earlier - of the pronouncements of supranational courts, which have recognized the maximum expansion of the right to linguistic assistance in the only cases in which the translation serves to put the defendant in the condition of knowing the charge formulated against him in order to defend himself effectively.
And so, since an unlimited right to translation of all measures taken and all documents acquired in the course of the proceedings - which would unreasonably frustrate requirements of celerity, efficiency and cost containment, which must certainly be taken into account - would not be conceivable, it seems reasonable, as well as perfectly consistent with the intentio legis, to consider the maximum expansion of that right in only those cases in which the act or document to be translated is actually instrumental to the exercise of the defensive faculties of the alloglotto: translation cannot, therefore, depend simply on the nomen iuris of the measure, but should be granted only if and only when the act has a direct and concrete impact on the actual exercise of the alloglotto's defensive faculties.
These considerations have, for example, prompted this Court, in the aftermath of the amendment of Article 613 of the Code of Criminal Procedure, to rule that the failure to translate the judgment of appeal is not a cause for nullity, precisely in view of the servant function of translation with respect to the right recognized by the system to appeal against the act to be translated: in particular, Sez. 5, no. 15056 of 11/03/2019, Nasim, Rv. 275103 - 01 ruled that “On the subject of the translation of acts, in the absence of specific elements indicative of an impairment with regard to the full explication of the right of defense, the failure to translate the judgment of appeal into a language known to the alloglotta defendant does not in itself integrate cause for its nullity, given that, after the amendment of Article 613 cod. proc. penal, by Law No. 103 of June 23, 2017, the defendant no longer has the right to personally file a cassation appeal.” A similar principle was stated by Sect. 5, No. 32878 of 05/02/2019, Molla, Rv. 277111 - 02, in relation to sentences of application of the sentence: “On the subject of translation of acts, in the absence of specific elements indicative of an impairment with regard to the full explication of the right of defense, the failure to translate the plea bargaining sentence in a language known to the alloglotta defendant does not in itself integrate cause for its nullity, given that, after the amendment of Article 613 cod. proc. penal, by Law No. 103 of June 23, 2017, the defendant no longer has the right to personally file a cassation appeal.”
It can, then, be held that the translation of a judgment that the non Italian speaking defendant cannot personally appeal does not quantitatively or qualitatively increase his or her rights of defense, and that no concrete limitation of those rights can really result from non-translation: in keeping with national and supranational jurisprudence, it seems difficult to argue that it can result in an impairment of the defense rights of the non Italian speaking defendant, who, in any case, retains the right to participate personally in the trial with the assistance of an interpreter, and enjoys the continuous technical assistance of his or her defense counsel.
These conclusions have, finally, found confirmation in the most recent pronouncement of the highest nomofilactic body on the subject: in the reasons of Sect. U, no. 15069 of 26/10/2023, dep. 2024, Niecko, Rv. 286356 - 01, in fact, it was clarified that the non Italian speaking defendant who complains about the violation of his defense prerogatives, as a result of the failure to translate the measure adopted against him and the procedural sequence that originates from that act, cannot simply “complain about the omission , but, in keeping with the general intermediate nature of the nullities, which, in the present case, come to the fore, he has the burden of indicating the existence of a concrete, current and verifiable interest in the appeal, the mere allegation of an abstract or potential prejudice not being relevant in this sense.”
The principle was recently reiterated, in the same exact terms, by Sect. 1, No. 44251 of 16/10/2024, Pllumaj, Rv. 287282 - 01, relating to an appeal for cassation ritually filed by the defense counsel of an alloglotto defendant; the court declared inadmissible the plea alleging failure to translate the judgment of appeal, as the appellant had not shown whether and to what extent the lack of timely personal knowledge of the judgment appealed had affected his defense strategies: in the explanatory statement it can be read that “The interest in inferring such a procedural pathology, in fact, exists only if and insofar as the alloglotta subject has annexed that he has suffered, as a result of the failure to translate the measure at issue, taking into account the procedural sequence in which it is inserted, an unlawful prejudice. On this point, it is worth recalling Sect. 1, no. 13291 of 19/11/1998, Senneca, Rv. 211870 - 01, expressly cited by Sect. U, no. 15069 of 26/10/2023, dep. 2024, Niecko, cited above, according to which no nullity of the act can be foreshadowed where “it is only the defendant who complains about it, without indicating a concrete and current interest of his in this regard, the mere allegation of an entirely abstract prejudice having no value.” This is, on closer inspection, a conclusion imposed by established case law on the subject of interest in appeal, dating back to Sect. U, No. 6624, Oct. 27, 2011, dep. 2012, Marinaj, Rv. 251693 - 01, according to which this notion must be reconstructed “in a utilitarian perspective, i.e. in the negative purpose, pursued by the person entitled, of removing a situation of procedural disadvantage resulting from a judicial decision, and in that, positive, of achieving a utility, i.e. a more advantageous decision than the one being appealed, and which is logically consistent with the regulatory system.”
2.3 In conclusion, when, as in the case at hand, a judgment is at issue against which the only remedy available is an appeal in cassation, the failure to translate in favor of the alloglotto defendant - in the absence of specific elements indicative of an impairment with regard to the full explication of the right of defense - cannot in itself integrate cause for the nullity of a judgment which, after the amendment of Article 613 of the Code of Criminal Procedure, the defendant can no longer challenge in person (ius postulandi, understood as the ability to request in court and to solicit a response from the judge by presenting acts, petitions and deductions, is indeed reserved exclusively for the defense counsel; while the defendant retains the ownership of the right to appeal in cassation completely independently of his own defense counsel, it is the latter alone and exclusively, pursuant to Article 613, paragraph 1, of the Code of Criminal Procedure the person entitled to the submission of the act of appeal: see, on this point, the reflections developed by Sec. U, no. 8914 of 21/12/2017, dep. 2018, Aiello, Rv. 272010 - 01, § 8).
The principle, expressed among others by the aforementioned Sec. 5, No. 15056 of 11/03/2019, Nasim, Rv. 275103 - 01, was at a recent time reiterated by Sec. 4, No. 41196 of 27/06/2024, El Mehdi, n.m., in the grounds of which it is illustrated in an entirely agreeable manner that the issue of failure to translate takes on peculiar aspects when a judgment of appeal comes into play (identical considerations apply when a judgment of first instance that cannot be appealed comes into play, as in the case at hand), “having to bear in mind the amendment made to Article 613 of the Code of Criminal Procedure by Law No. 103 of June 23, 2017, which abolished the right of the defendant to personally file an appeal for cassation. For this reason, it must be ruled out that it determines - sic et simpliciter - the nullity of the judgment of appeal. On the subject of the translation of documents, indeed, in the absence of specific elements indicative of an impairment with regard to the full explication of the right of defense, the failure to translate the judgment of appeal into a language known to the alloglot defendant does not in itself integrate cause for its nullity [. .] In fact, no specific formal nullity is linked to the violation of Article 143 of the Code of Criminal Procedure, so that the possible sanction that can be configured for the case of non-compliance with these provisions is exclusively that provided for in Article 178, paragraph 1, lett. c), Code of Criminal Procedure..., concerning the violation of the provisions relating to the assistance of the defendant, for which, however, it is required that some actual impairment of this right can be said to have been realized, since these are provisions aimed at ensuring the effectiveness and full awareness of participation in the trial and the possibility of the full explication of the right of defense, so that when these have in any case been realized, no violation can be said to exist.”
Since in the present case the defendant's counsel, by virtue of the mandate and exercising the powers conferred on him by his client (cf, in this regard, the agreeable reflections of Sec. 7, no. 30042 of 06/06/2023, Simon, Rv. 285097 - 01, according to which “The defendant's failure to be notified of the contumacious extract of the judgment of appeal does not have any effect on the cassation appeal ritually proposed by his counsel, it having to be presumed that, by virtue of the relationship between patron and patron , the appealed judgment was brought to the latter's attention by the former and that the exercise of the power of appeal was shared between them"), he timely and duly brought an appeal for cassation, and did not plead any particular prejudice resulting from the failure to translate the appealed judgment (although he could certainly do so: cf. Sect. 6, no. 3993 of 30/11/2023, dep. 2024, Dabo, Rv. 286113 - 02: “The defender of the accused alloglotto is legitimated to object to the failure to translate the sentence issued against the defendant, since it is an activity falling within the overall technical defense entrusted to him and not instead of a very personal act reserved exclusively for the defendant”), the first ground of appeal must be rejected.
3. As to the second plea, it should be premised that Article 4 of Protocol No. 7 C.E.D.U. provides that “No one may be prosecuted or sentenced criminally by the jurisdiction of the same State for an offense for which he has already been acquitted or convicted following a final judgment in accordance with the law and criminal procedure of that State”; in domestic law, the prohibition of a second trial, as a consequence of the irrevocability of the judgment and other jurisdictional measures assimilated to it, is provided for in Article 649 of the Code of Criminal Procedure, and is traced by constitutional jurisprudence to Articles 24 and 111 of the Constitution (cf, ex plurimis, Judgments Nos. 501/2000, 284/2003, 129/2008 and 200/2016): the Constitutional Court has in particular observed - in the grounds of the judgment last cited - that among the procedural guarantees of “due process” is the principle of legal civilization expressed by the prohibition of bis in idem, “thanks to which there comes a time when, having formed the judgment, the individual is removed from the spiral of repeated criminal initiatives for the same fact. Otherwise, the contact with the repressive apparatus of the state, potentially continuous, would cast the shadow of precariousness in the enjoyment of freedoms related to the development of the individual personality, which is placed, instead, at the center of the constitutional order.”
The prohibition of a second trial is, therefore, a general principle, having substantive and procedural value, which, in the latter dimension, ensures the need for legal certainty and economy of judgments, while in its substantive meaning it aims to avoid the irrational injustice of a plurality of convictions for the same fact: it follows that if the historical fact that is the subject of the second trial coincides, in all the elements of the triad “conduct - causal link - naturalistic event,” with that already established by the final judgment, the continuation of the trial is precluded by the provision of Art. 649 Code of Criminal Procedure.
That said, it should be noted that in the present case there is no identity between the facts in relation to which M.A. was tried.
The present case arose as a result of the September 23, 2020 crime report of the Pistoia Police Headquarters, a reading of which shows that M.A. presented himself at those offices for information on his application for renewal of a residence permit for humanitarian reasons, reporting that he had entered the territory of the State on December 7, 2015, from Agrigento; that he had turned out to be the holder of a residence permit for humanitarian reasons that had expired on May 30, 2019; that the application for renewal submitted on January 15, 2020, had been rejected by the Questore of Pistoia on April 3, 2020, with a measure notified to him on May 27, 2020; that M. A. had challenged that order on June 29, 2020 with an appeal filed with the Court of Florence, the outcome of which, as of September 23, 2020, was not yet known.
It must, then, undoubtedly be affirmed that the subject matter of today's judgment does not coincide with that which was the subject of the ruling issued on March 24, 2021 by the Justice of the Peace of Florence: and indeed, M.A. was there acquitted with the formula “because the fact does not exist” of the crime under Article 10 bis of Legislative Decree No. 286 of 1998 ascertained in Florence on October 15, 2016, since his defense counsel documented that he was the holder of a residence permit issued to him on October 12, 2016.
The fact contested today also differs from that which was the subject of the judgment issued on November 28, 2022 by the Justice of the Peace of Florence, which was ascertained in Florence on August 4, 2019, and, therefore, just over a year and a month earlier: it is worth, on the point to recall that the one in dispute is a permanent offense, the consummation of which continues until the interruption of the conduct or until its legalization, and that, as this Court has repeatedly ruled, “On the subject of a permanent offense, the prohibition of a second judgment concerns the conduct outlined in the indictment and ascertained by a judgment, of conviction or acquittal, which has become irrevocable and not also the continuation of the same conduct or its resumption at a later time, since it is a different ‘historical fact’ not covered by the judgment” (Sez. 3, no. 9988 of 19/12/2019, dep. 2020, La Pietra, Rv. 278534 - 01).
The second ground of the appeal should, therefore, also be rejected, as there was no violation of the bis in idem prohibition.
4. The dismissal of the appeal is followed by an order that the appellant pay the costs of the proceedings.
P.Q.M.
Dismisses the appeal and orders the appellant to pay the court costs.