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Unlawful detention in European Arrest Warrant case in Italy: compensation granted (Cass. 1422/23)

17 January 2023, Italian Supreme court

Wrongful detention in European Arrest Warrant proceedings has to  be compensated ifsurredner doen not take place: as to the personalization of compensation, the Ministry of Finance's argument in relation to EAW detention as "guilty" instead of innocent has no merit, since the possibility of negatively assessing conduct that is criminally irrelevant under Italian law and sanctioned by German law alone should be excluded (lack of double crimnality).

(unofficial machine translation)

Sec. IV, Sent., (date of hearing 21/10/2022) 17/01/2023, no. 1422

Composed of the Honorable Magistrates:

Dr. PICCIALLI Patrizia - President -

Dr. DI SALVO Emanuele - Councilor -

Dott. VIGNALE Lucia - Councilor -

Dott. ESPOSITO Aldo - rel. Councilor -

Dr. ANTEZZA Fabio - Councilor -

pronounced the following:


On the appeal brought by:


in respect of:

A.A., born on (Omissis);

against the order of 08/10/2021 of the COURT OF APPEALS of TRENTO;

heard the report delivered by Counsel Dr. ALDO ESPOSITO;

read the conclusions of PG Dr. Seccia Domenico A.R., who asked for the dismissal of the appeal;

read the defense brief of Attorney MM, in his capacity as counsel for the respondent, who asked for the appeal to be dismissed and for the appellant Ministry to be ordered to pay legal costs.

Course of the proceedings

1. With the order in the present case, the Court of Appeal of Trent liquidated in favor of A.A. the sum of 25,000 euros as compensation for the unjust detention he suffered for 95 days of pre-trial detention in prison, as he was sentenced to six months' imprisonment for the crime of incitement to hatred under p. 130, paragraph 1, no. 1 of the German Criminal Code (SGB) (for having uttered during a train ride the phrase "I do it like the canachi, every year a new child. I live off the family allowances.")

As for the pre-trial matter, A.A. was arrested on August 17, 2020 in execution of the European arrest warrant issued by the German judicial authority following the judgment handed down by the Munich District Court on August 29, 2018, which became irrevocable.

The Trento Court of Appeals had granted the request for surrender to the German authority in execution of the aforementioned warrant, finding that the dual criminality requirement of Law No. 69 of 2005, Art. 7, was met, as the crime for which A.A. had been convicted corresponded to the provisions of Art. 604 bis of the Criminal Code, because with the incriminated sentence the man had made insinuations referring to people of Turkish origin, or from Eastern Europe, in that they would only be able to support themselves thanks to family allowances or similar provisions and only for this purpose would they have children.

The Court of Cassation upheld the appeal and annulled the appealed judgment without referral, ordering the revocation of the custodial order. In its reasoning, it affirmed that the contested act did not fall under any of the provisions provided for by the Italian legal system, since the author of the act had not carried out any activity of propaganda of ideas nor of instigation, having merely uttered in public a disparaging expression by which he had expressed his hostility toward individuals from certain geographical areas for behavior behaved by them. Nor could the offense of aggravated defamation be recognized in such conduct, given the indefiniteness of the recipients of the offense.

2. The Ministry of Economy and Finance, in the person of the Minister pro tempore, represented and defended by the Attorney General's Office, appeals to the Supreme Court against the above-mentioned order, putting forward two grounds of appeal.

2.1. Violation of the law and failure to state reasons with reference to Articles 643 and 273 of the Code of Criminal Procedure and Article 112 of the Code of Criminal Procedure.

It is argued that, in the validation of the arrest, A.A. had not objected to the lack of the dual criminality requirement, because otherwise he would have immediately obtained a ruling that would have resulted in the effects of the custodial measure being terminated.

This grievance, in fact, was made only with the appeal in cassation against the Court of Appeals' ruling granting the request for surrender.

In any case, in the alternative, A.A.'s conduct could be qualified in terms of ordinary or mild negligence, with a consequent reduction in the compensation to be paid in his favor. This was precisely because of the possibility, from the initial stage, to prospect the lack of the requirement of double criminality.

The discipline of reparation for wrongful imprisonment also expresses the rule of the subject's self-responsibility and, more generally, of the duty to endeavor to limit the negative consequences of his situation. Moreover, the territorial court did not provide a specific answer to the issue of non-exception in the part where it ruled out the existence of slight negligence.

2.2. Violation of the law and failure to state reasons with regard to Articles 643 and 273 of the Code of Criminal Procedure.

It is noted that the reparation theoretically due should have been reduced from the standpoint of personalizing it in relation to the particular procedural and substantive condition of the petitioner, a person who had not suffered wrongful imprisonment and then been found innocent.

However, A.A. had been restricted because he had been convicted in Germany of an odious crime, managing to avoid serving his sentence only because, having taken refuge in Italy, he had not been handed over to the German authorities due to the exclusion of the dual criminality requirement.

The conviction suffered in Germany constituted an aspect pertaining to the injustice of imprisonment, a constitutive element of the right to reparation. This was relevant to the personalization of reparation, in the sense of entailing its significant reduction. The order under appeal did not evaluate this issue raised by the Ministry's defense.

3. In a defense brief, A.A. asked that the appeal be declared inadmissible.

In this regard, A.A. points out that the appellant administration aims at a review of the merits of the concluded presupposed judgment, reiterating the observations proposed to the judge of reparation, centered on the existence of fault (serious and slight), which cannot be censured in the court of legitimacy. They are inherently indeterminate and lack the necessary correlation with the reasons underlying the contested decision. In fact, they do not indicate what the alleged violation of substantive and procedural law took the form of.

The logical-legal procedure by which the reparation judge recognized the existence of the prerequisites for equitable reparation is free from flaws and is consistently within the interpretative framework outlined by constitutional and legitimacy jurisprudence.

With regard to the an, the territorial court valued the solidaristic foundation of the institution and, moving in the wake of a constitutionally oriented broad interpretation, deemed the request for equitable reparation admissible in the context of passive extradition proceedings, in particular due to the absence of the conditions for a favorable extradition judgment; therefore, without attributing relevance to the lack of one of the liberating pronouncements referred to in Art. 314 c.p.p, paragraphs 1 and 3, and without any limitation or distinction as to the title of the injustice.

Since the validation, the pre-trial judge had sufficient information to find that the conditions for a favorable extradition ruling did not exist, as "the content of the EAW, at least with reference to the indictment, did not differ appreciably from that of the "A" form, so the validation judge had sufficient information to decide."

The territorial court ruled out A.A.'s gross negligence because already at the time of the validation of the arrest the adjudicating body could have understood the absence of the dual criminality requirement. On the basis of the rejection, the reparation judge considered, first of all, the aforementioned circumstance not attributable to A.A. (even before considering it as conduct characterized by macroscopic lightness and recklessness), as a foreigner not familiar with the Italian language and adequate notions of Italian criminal law and procedural law, could not have sufficiently understood the legal situation he was in and to cope with it with greater timeliness than that demonstrated by his defense counsel.

Reasons for the decision

1. The appeal is unfounded.

It should be premised that, in principle, an application for recognition of the right to compensation for wrongful detention in relation to custody suffered for extradition purposes is admissible.

In fact, Article 714, paragraph 2, of the Code of Criminal Procedure, which regulates the precautionary measures applied to persons whose extradition has been requested, provides that "the provisions of Title I of Book IV, concerning coercive measures, with the exception of those referred to in Articles 273 and 280 of the Code of Criminal Procedure, and the provisions of Chapter III of Title III of Book III, shall be observed, insofar as they are applicable." Since Articles 314 and 315 of the Code of Criminal Procedure are the last two norms included in Title I of Book IV of the Code of Procedure, and since there is no reason to consider their inapplicability, the extension of these provisions to passive extradition proceedings is evident" (Sec. 4, No. 2678 of 12/12/2008, dep. 2009, Pramstaller, Rv. 242505, relating to a case of the lapse of a European arrest warrant after the decision to proceed in Italy for the facts that were the subject of the same, a proceeding that later ended with a decision to dismiss).

2. It is now necessary to recall some main lines of the discipline of the institution of reparation for unfair detention, as outlined by the jurisprudence of legitimacy.

In particular, it is of interest to recall that apt to exclude the existence of the right to compensation, pursuant to Article 314 of the Code of Criminal Procedure, paragraph 1, - is not only the conduct aimed at the realization of an event intended and represented in its factual terms, whether or not it conflicts with a legal prescription, but also "the conscious and voluntary conduct whose outcomes, evaluated by the judge of the reparative procedure with the parameter of id quod pierumque accidit according to the commonly accepted rules of experience, are such as to create a situation of social alarm and the due intervention of the judicial authority to protect the community, reasonably considered to be in danger. Since the notion of guilt is given by Article 43 of the Criminal Code, it must be deemed to be an obstacle to the recognition of the right to reparation, pursuant to Article 314, paragraph 1, cited above, that conduct which, although aimed at other results, puts in place, through obvious, macroscopic negligence, imprudence, carelessness, failure to comply with laws, regulations or disciplinary rules, a situation such as to constitute an unintended, but foreseeable, reason for the intervention of the judicial authority that takes the form of the adoption of a measure restricting personal freedom or the failure to revoke one already issued (Sez. U, no. 43 of Dec. 13, 1995, dep. 1996, Sarnataro, Rv. 203637).

In the perspective of the review of legitimacy, it is decisive to note that it is limited to the correctness of the logical-legal reasoning with which the judge arrived at ascertaining or denying the prerequisites for obtaining the benefit, while it remains in the exclusive attributions of the judge of merit, who is required to adequately and logically motivate his conviction, the assessment on the existence and seriousness of guilt or intent (Sec. 4, no. 21896 of 11/04/2012, Hilario Santana, Rv. 253325).

It is necessary to distinguish the logical operation proper to the Judge of the criminal trial, aimed at ascertaining the existence of a crime and its commission by the accused, from that proper to the Judge of reparation. The latter, while having to operate, if necessary, on the same material, must follow an entirely autonomous logical-motivational "iter," because it is his task to determine not whether certain conduct constitutes a crime or not, but whether it has posed itself as a conditioning factor (even in the concurrence of another's error) in the production of the event "detention." in relation to this aspect of the decision he has full and ample freedom to evaluate the material acquired in the trial, not in order to re-evaluate it, but in order to check whether or not the conditions of the action (of a civil law nature) are met, both in a positive and negative sense, including the possible existence of a cause of exclusion of the right to reparation.

3. Well, the assessment expressed in the case at hand by the territorial court is in the framework of the teachings now referred to.

The argumentative path developed by the judge of reparation, in the pars construens is logical and motivated and is based on the judgment of this Court of annulment without referral, which rejected any possibility of integrating the case of double criminality necessary for the surrender to the judicial authority of Germany of A.A. in execution of the European Arrest Warrant issued by the Munich Public Prosecutor's Office on July 22, 2020 limited to the judgment of the Munich District Court dated August 29, 2018, irrevocable on April 9, 2019, by which the aforementioned had been convicted of the crime of incitement to hatred pursuant to Article 130, paragraph 1 no. 1, of the German Criminal Code and sentenced to six months' imprisonment.

The Supreme Court in the aforementioned judgment established the error of law evinced in the case, pointing out the non-existence of the condition of double criminality provided for by Law No. 69 of 2005, Article 7, Paragraph 1, and, of consequences, the possibility of issuing of any custodial measure. It pointed out that the requirement of double punishability, in the case at hand, cannot be recognized because to satisfy said conditionise it is not necessary that the abstract scheme of the incriminating norm of the foreign system finds its exact correspondence in a norm of the Italian system, the concrete case must be punishable as a crime in both systems, not mattering the possible diversity of the sanctioning treatment, the title and all the elements required for the configuration of the crime (Sez. 6, No. 22249 of 03/05/2017, Bernard Pascale, Rv. 269918).

B) In the contested measure, the verification of the judgment of punishability in concreto of the conduct for which the conviction of the surrenderer occurred was omitted. The Court of Appeals merely referred to the domestic rule under which - in its opinion - such conduct was also punishable in Italy, without considering the constituent elements of the crime under Article 604 bis of the Criminal Code.

The Court of Cassation pointed out the lack of fault precluding the right to compensation for wrongful imprisonment in A.A.'s conduct, based on the following considerations:

1) A.A.'s conduct is also not punishable by the Italian legal system on the basis of Article 604 bis of the Criminal Code, lacking the constituent element of propaganda conduct, since, within the aforementioned provision, the mere manifestation of hostile contempt toward a specific ethnic group for conduct by its members does not have criminal significance.

2) The offensive conduct in question cannot be punished as aggravated insult because of the repeal of the case referred to in Article 594 of the Criminal Code that occurred with Legislative Decree No. 7, Article 1, paragraph 1(c), of January 15, 2016.

3) The same conduct cannot be subsumed under the hypothesis of aggravated defamation in two respects: (a) the presence at the time of the offensive expression of certain subjects in some way referable to the group to which it was intended; (b) the indeterminacy of the addressees of the offense since the crime of defamation is configurable in the presence of an offense against the reputation of a specific person and cannot, therefore, be considered subsistent, in the case where offensive expressions referring to subjects (in this case belonging to a political movement) not identified, nor identifiable, are pronounced or written (Sec. 5, no. 3809 of 28/11/2017, dep. 2018, Ranieri, Rv. 272320).

In the order under appeal, it was correctly pointed out that the legal error of not having timely deduced the non-punishability in Italy of the criminal conduct complained of cannot be attributed to A.A.. It cannot be -attributed to the defendant, in fact, a behavior integral to the formulation of defensive grievances, since the raising of the same falls within the exclusive scope of the defense counsel.

The exclusion of any objective and subjective reprehensibility of A.A.'s behavior leads to the exclusion of the configuration of a related hypothesis of mild negligence even in the determination of the quantum indemnifiable, correctly reported in the order according to the parameters of computation, including for the equitable principles on suffering from prison expiation.

As for the personalization of compensation, raised by the administration in relation to detention as "guilty" instead of innocent, the order provides adequate reasoning on the point, in that the Court appreciates this circumstance in the sense that there is "no finding of mild misconduct, as the Ministry would like, due to the fact that A.A. engaged in conduct that constitutes a crime in the legal system of his home state. It is absorbing, to the contrary, the finding that in the Italian penal system the said conduct is not provided for as a crime (...)."

Moreover, the possibility of negatively assessing conduct that is criminally irrelevant under Italian criminal law and sanctioned by German law alone must be ruled out.

It follows that the contested order falls within the inl:erpretative framework, outlined by the jurisprudence of legitimacy, regarding the assessment of the prerequisites for the recognition of compensation and its computation.

4. For the foregoing reasons, the appeal should be dismissed.

The rejection of the appeal is followed by an order that the appellant Ministry pay the costs of the proceedings as well as reimbursement of the costs incurred by the respondent, which, taking into account the nature and relative complexity of the present case, should be set at one thousand euros.
Dismisses the appeal and orders the appellant Ministry to pay the costs of the proceedings as well as to reimburse the costs incurred by the respondent in these proceedings of legitimacy, which it settles in the total amount of Euro 1,000.00 (one thousand).
Thus decided in Rome, October 21, 2022.

Filed in the Court Registry, January 17, 2023.