Unlawful pretrial detention of non executed European arrest warrant in Italy has to be compensated wihout any assessment of the merits of the case in the issuing state.
SUPREME COURT OF CASSATION
FOURTH CRIMINAL SECTION
(date of hearing 12/01/2023) 12/05/2023, no. 20255
Composed of Messrs:
Dr. DI SALVO Emanuele - President -
Dr. DOVERE Salvatore - rel. Councillor -
Dott. CAPPELLO Gabriella - Counsellor -
Dott. PEZZELLA Vincenzo - Consigliere -
Dr DAWAN Daniela - Councillor -
has pronounced the following
on the action brought by:
MINISTERO DELL'ECONOMIA E DELLE FINANZE
in respect of:
A.A., born on (Omissis);
B.B., born on (Omissis);
against the order of 20/01/2022 of the COURT OF APPEALS of FLORENCE;
Having heard the report by Counsel Dr. DOVERE SALVATORE;
read the conclusions of the PG Dr. COSTANTINI F., who asked for the rejection of the appeal.
Conduct of the trial
1. By the order indicated in the epigraph, the Court of Appeal of Genoa granted the application for compensation made pursuant to Article 314 et seq. by A.A. and B.B., awarding them a sum by way of damages. The Court of Appeal held that the award of compensation was a "natural corollary" of the issue of a judgment refusing to surrender the aforementioned persons to the Belgian State, which had issued a European arrest warrant in view of that judgment, resulting in the application of a custodial measure against them.
2. The Ministry of the Economy and Finance, through the Avvocatura dello Stato, appealed against the order in cassation, putting forward a first plea in law alleging infringement of Articles 125, 314, 714 to 716 of the Code of Criminal Procedure and a defect in the statement of reasons.
In the appellant's view, the district court erred in applying by analogy the institute of passive extradition in that the European arrest warrant has its own special and autonomous rules and, in relation to the detention that followed, it is not possible to disregard an irrevocable acquittal decision, which is not the case here. In that regard, reference is made to the judgment of this Court No 2623/2019.
The second plea alleges a violation of the law in relation to Article 314 of the Code of Criminal Procedure and subsequent amendments, Article 125 of the Code of Criminal Procedure, Article 714, paragraph 3 of the Code of Criminal Procedure, and Articles 213 and 738 of the Code of Criminal Procedure, because, in considering that the extradition rules should be applied, the Court of Appeal should have verified that the conditions for a favourable extradition decision were not met. The respondent Ministry had asked the territorial court to activate its officio powers to ascertain from the Belgian authorities what the outcome of the prerequisite criminal trial had been, but the request was implicitly disregarded. However, according to the teaching of Sect. 4, no. 18172/2017, the judge of reparation is required to avail himself of the possibility provided for by Articles 213 and 738 of the Code of Civil Procedure to ask the P.A. for written information on acts and documents in its possession. In the present case, the judgment refusing surrender contained circumstances that made it possible for the Belgian authorities to issue a judgment at a later date that would constitute valid grounds for requesting extradition.
Grounds for the decision
1. The appeal is unfounded.
1.1. Firstly, it should be recalled that this Court has already ruled on the admissibility of the reparation of detention established with a view to the surrender of a person to the State that issued the European Arrest Warrant, when that detention proves to be unjust (Sec. 4, no. 2678 of 12/12/2008, dep. 2009, Rv. 242505).
This does not seem to be doubted even by the applicant Ministry, which in fact does not complain of the abstract admissibility of the reparation of detention established in connection with a European Arrest Warrant (hereinafter EAW) but of the fact that, by finding similarities between the EAW and extradition, it was deemed to be able to disregard the existence of an irrevocable acquittal decision.
The respondent Ministry's assumption that such a ruling would be necessary is unfounded. One would like to borrow, for the detention suffered under EAW, a condition that is undoubtedly provided for by Article 314 of the Code of Criminal Procedure but which, in the light of the constitutionally oriented interpretation of the discipline of reparation for unfair detention urged on more than one occasion by the Constitutional Court, has already been considered unnecessary in a not small number of cases, in which the right has been recognised even though outside the perimeter traced by the text of the law.
1.2. As has already been noted in Sec. 4, No. 52813 of 19/09/2018, Maroci, Rv. 275197, the institution of reparation for unfair detention has undergone an interpretative evolution that has led it to a broader scope of application, compared to the one defined by the legislator in implementing the Law-Delegation No. 81 of 16 February 1987. According to the provisions of the Code, the indemnity is available first and foremost to persons who, having been remanded in custody, have been acquitted by irrevocable judgment because the fact does not exist, because they did not commit the offence, because the fact does not constitute an offence or is not envisaged by law as an offence, provided that they did not contribute with gross negligence or wilful misconduct to the adoption of the restrictive measure (paragraph 1); It is also incumbent on a person who has been acquitted for any reason whatsoever or on a convicted person who has been remanded in custody during the trial, when it is established by an irrevocable decision that the measure ordering the measure was issued or maintained without the conditions for its applicability being met, as provided for in Articles 273 and 280 of the Code of Criminal Procedure (para. 2).
Under the same conditions, compensation may be granted in favour of persons against whom a decision of dismissal or a judgement of "non luogo a procedere" is pronounced (paragraph 3).
A later interpretation held that, since the right is recognisable only in the case of an acquittal pronounced on the merits and Art. 314 Code of Criminal Procedure, paragraph 4 provides that "the right to reparation is excluded ... for the period in which the limitations resulting from the application of custody have been suffered under another title", if the measure restricting freedom is based on several charges, the acquittal with a formula not on the merits even from only one of these, provided that it is autonomously suitable to legitimise the compression of freedom, prevents the emergence of the right, irrelevant resulting from the acquittal of the other charges (ex multis, Sez. 4, no. 18343 of 02/03/2007 - dep. 15/05/2007, P.G. in proc. Ferlini, Rv. 236411). Consequently, detention that, imposed for a crime for which an acquittal on the merits takes place, was also subjected to detention for a crime for which the prescribed condition of admissibility was deemed lacking (Court of Cassation, Sec. 4, no. 5949 of 13.12.2002, rv. 226152); or even for a crime extinguished by prescription (Court of Cassation, Sec. 4, no. 3590 of 04.12.2006 - dep. 31.01.2007, Di Grazia and others, Rv. 236010).
According to the tenor of the provisions, moreover, compensation cannot be obtained when the detention undergone did not have a precautionary function but was expiated in execution of the sentence inflicted with a final ruling; and the same applies to the hypothesis that a period of precautionary detention is suffered in excess of the sentence inflicted with the final ruling.
Now, these and other limitations, deriving from the strict, literal content of the code, have been progressively overcome by case law, both constitutional and of legitimacy. Already with earlier rulings, an extensive interpretation of the provision in Article 314, paragraph 3 of the Code of Criminal Procedure was adopted, resolving in the affirmative the doubt as to whether the hypothesis referred to in paragraph 1 also applied to the decree of filing, whatever the reason (Sect. 4, no. 1585 of 18/12/1993 - dep. 19/05/1994, Fazari, Rv. 197642). As for the hypothesis of the crime being extinguished due to prescription, the majority orientation formed in the jurisprudence of legitimacy, militating in favour of the non-existence of the right, was at first contrasted by certain pronouncements, for which the detention suffered for a crime declared to be time-barred must be taken into consideration and compared, in order to assess the injustice, to the entity of the penalty that would have been inflicted in the event of conviction (Sez. 4, no. 40094 of 6/7/2005, Cinanni, n. m.; Sect. 4, no. 36898 of 8/7/2005, Femia, n. m.), thus being the basis for a suspicion of constitutional illegitimacy of art. 314 c.p, paragraph 1, in so far as it does not provide for reparation for the detention suffered in relation to an offence for which there has been an acquittal not on the merits. Moreover, with the order of referral the Court of Cassation widened the scope of the question - raised also with regard to Article 314, paragraph 4 of the Code of Criminal Procedure, in relation to Articles 2, 3, 24, 76 and 77 of the Constitution. - by investing the Constitutional Court also with the profile concerning the failure to provide for the right to compensation for pre-trial detention suffered for a duration exceeding the sentence imposed (Sez. U, no. 25084 of 30/05/2006, Pellegrino and others, Rv. 234144).
1.3. Putting aside for the moment the outcome of this judgement of constitutionality, it is important to note that it was the judge of the laws who gave a decisive impulse to the motion and Spa nsivo of the law, indicating to the ordinary judge the need to grasp, in the diversity of the events, the founding nucleus of the institution, represented not by a particular outcome of the criminal proceedings but by the objective lesion of personal freedom. The first judgement that deserves to be recalled here is judgement no. 310 of 1996, in which the Judge of the Laws declared the constitutional illegitimacy of Article 314 of the Code of Criminal Procedure in the part in which it does not provide for the right to equitable reparation also for detention unjustly suffered as a result of an erroneous execution order. The legislature's silence on this matter was considered unjustified in the light of the fact that detention resulting from an unlawful enforcement order offends the person's freedom to no lesser extent than unjust pre-trial detention and that the delegating law allows the legislature's intention not to introduce, at this level, unjustified differentiations between pre-trial detention and the enforcement of custodial sentences. As, moreover, the Constitutional Court recalled art. 5 of the European Convention on Human Rights, which provides for the right to reparation in favour of the victim of unjust arrest or detention without distinction of any kind; art. 5 that the same delegated law indicates - in conjunction with the standards of the international conventions ratified by Italy and relating to the rights of the person and the criminal trial - among the standards to which the new code must conform.
The erosion of the original cornerstone was further advanced in Judgment No. 109 of 1999, which declared the constitutional illegitimacy of Article 314, paragraph 1, of the Code of Criminal Procedure, in the part in which it does not provide for reparation also for detention suffered as a result of arrest in flagrante delicto or detention of persons suspected of a crime, within the same limits established for pre-trial detention;
and of Article 314, paragraph 2, of the Code of Criminal Procedure, in so far as it does not provide that the same right within the same limits shall accrue to a person acquitted for any reason whatsoever or to a convicted person who in the course of the trial has been subjected to arrest in flagrante delicto or to detention of a person suspected of a crime when, by an irrevocable decision, the conditions for validation have been found not to exist. Once again, the Constitutional Court emphasised that in the law of delegation, the requirement that all offences to personal liberty caused by 'unfair detention' must be repaired, regardless of their duration and regardless of the authority from which the restriction originates, is very much in line with Article 5(5) of the ECHR, which expressly provides for the right to reparation in favour of the victim of unjust arrest or detention without distinction of any kind.
A few years later, dealing with the very issue referred to it by the U.S. in the Pellegrino case, the Constitutional Court also deemed unjustified the limitation deriving from the need for an acquittal on the merits, declaring Article 314 of the Code of Criminal Procedure constitutionally illegitimate in the part in which, in the hypothesis of pre-trial detention suffered, it conditions the right to fair reparation in any case to the acquittal on the merits of the charges. After this pronouncement, the highest body of nomofilachia has ruled that the right to compensation for unfair detention is also entitled when the duration of pre-trial detention is greater than the measure of the sentence inflicted with the judgment of first instance, which was followed by a judgment of appeal declaring the extinction of the crime due to prescription, specifying that, for the purposes of quantifying the compensation, the part of pre-trial detention suffered that corresponds to the sentence imposed at first instance must not be taken into account (Sez. U, no. 4187 of 30/10/2008, dep. 2009, Pellegrino, Rv. 241855).
With sentence No. 230 of 2004, the judge of laws brought within the area of discipline of Article 314, paragraph 2 of the Code of Criminal Procedure the case of a person who has undergone a period of pre-trial detention on the basis of an order issued for an act for which he had already been tried or had even served the sentence imposed by a previous conviction. It was held that the rule does not exclude that the negative finding as to the existence of the conditions of applicability provided for in Articles 273 and 280 of the Code of Criminal Procedure. It has been held that the rule does not exclude that the negative finding as to the existence of the applicability of the conditions provided for in Articles 273 and 280 of the Code of Criminal Procedure implicitly follows from an irrevocable judgment that ascertains that the criminal action could not be exercised because it was precluded by a previous judgment, given that it cannot but be concluded that even the precautionary measure ordered for the same fact for which the defendant had already been judged lacks the requirements that legitimise its adoption, given the obvious connection of instrumentality of the precautionary action with the criminal action.
1.4. It is quite evident, therefore, that according to constitutional and legitimacy jurisprudence, not the pronouncement of a given statute conditions the right to compensation but an objective lesion of the right. And when the regulatory framework does not offer protection, the possibility of a constitutionally compliant interpretation must be explored. On the basis of this guiding criterion, after having ruled it out (Sect. 6, no. 1648 of 22/04/1997, Priebke E, Rv. 208145; Sect. 6, no. 31130 of 08/07/2003, Napar G O, Rv. 226208), following the indications offered by sentence no. 231 of 2004 of the Constitutional Court, this Court recognised the right to reparation for detention unjustly suffered in the context of passive extradition proceedings, on which the codified provisions are silent. With the aforementioned decision, the Judge of Laws declared unfounded the question of the constitutional legitimacy of Article 314 of the Code of Criminal Procedure, raised with reference to Articles 2, 3, 13 and 24 of the Italian Constitution, in the part in which, on the subject of passive extradition, it does not provide for reparation for unjust detention in the case of provisional arrest and provisional application of custodial measures at the request of the foreign State which is found to lack jurisdiction. In fact, it has noted that it is possible to give the rule an interpretation in conformity with the solidaristic foundation of reparation for unfair detention, whereby the right to reparation for unfair detention is linked to the presence of an objective infringement of personal liberty, which is in any case unfair according to an "ex post" assessment; and therefore also where such an infringement derives from a detention order originating in the extradition procedure. In subsequent decisions this Court has held admissible the request for reparation relating to detention suffered in the context of extradition procedures (see Sect. 6, no. 21748 of 13/05/2008, Dakhlaoui, Rv. 239940; Sect. 4, no. 2678 of 12/12/2008, dep. 2009, Pramstaller, n. m.). The United Sections, in particular, examining the question "whether the coercive measure for extradition purposes loses its effectiveness in the event that the requesting State does not take delivery of the extradited person within the legal deadline due to the suspension of the effectiveness, ordered by the administrative judge, of the ministerial order granting the extradition", clearly expressed their adherence to the interpretative perspective indicated by the Constitutional Court in Judgment no. 231/2004. 231/2004, reiterating how in respect of the persons whose extradition is requested, the extremes of unjust detention can and must in any case be assessed, for the purposes of the recognition of the right to reparation; but not on the basis of the parameters obtainable from articles 273 and 280 of the Code of Criminal Procedure, the applicability of which is explicitly excluded by Art. 714, paragraph 2 of the Code of Criminal Procedure, but rather by "verifying whether it is ascertained ex post facto that the specific conditions for the applicability of coercive measures do not exist, for these subjects identified under Art. 714, paragraph 3 of the Code of Criminal Procedure in the "conditions for a favourable judgement on extradition". According to the United Sections, "outside the indicated limit, there is no further Spa zio for the bringing of an action for reparation for unfair detention for extradition purposes. It follows that, in the event of an irrevocable judgement in favour of extradition, the detention eventually suffered by the extradited person for this purpose cannot be considered unjust and cannot, therefore, constitute grounds for a favourable outcome of the procedure under articles 314 and 315 of the Code of Criminal Procedure". (Sez. U, no. 6624 of 27/10/2011, dep. 2012, Marinaj, Rv. 251691, in motivation, recalling the clarification already made in Corte Cost. no. 231/2004).
1.5. In the light of the teaching of the United Sections, the Maroci judgment concluded that the right to reparation for unfair detention in the context of passive extradition proceedings is subject to special conditions. The first of these is that no irrevocable judgment in favour of extradition must have been pronounced. On the other hand, it is of no relevance that one of the judgments referred to in Article 314(1) and (3) of the Code of Criminal Procedure has not been pronounced and has become final. Contrary to what has been held by Sect. 6, no. 21748 of 13/05/2008, Dakhlaoui, Rv. 239940, which has been superseded by the teaching given by the S.U., the right to reparation does not presuppose that the detention has been instituted in violation of Articles 273 and 280 of the Code of Criminal Procedure. For the hypothesis of coercive measures to be taken against the person "whose extradition is requested", the reason lies in the explicit exclusion of the applicability of such rules, made by Article 714 of the Code of Criminal Procedure alone. Nonetheless, the existence of serious indications takes on indirect significance, by virtue of the provision of Article 705 of the Code of Criminal Procedure, which lays down the conditions for a favourable extradition judgment. With regard to arrest by the judicial police (Article 716 of the Code of Criminal Procedure) and the provisional application of precautionary measures against a person whose extradition request has not yet been received (governed by Article 715 of the Code of Criminal Procedure), for which there is no analogous provision, it was considered unreasonable that Articles 273 and 280 of the Code of Criminal Procedure should apply. in hypotheses characterised by a deliberation that, except for the profile concerning the danger of absconding, relates to merely procedural conditions (i.e. that the foreign State has declared that the person has been issued a measure restricting personal liberty or a sentence of imprisonment and that it intends to submit an extradition request; that it has provided a description of the facts, the specification of the offence and the penalties provided for the same, as well as the elements for the exact identification of the person). It should also be considered that the express provision of a "substantial" judgment limited to the recurrence of the danger of flight confirms the extraneousness to it of the verification of the conditions provided for by Articles 273 and 280 of the Code of Criminal Procedure. In short, even for the hypotheses governed by Article 715 of the Code of Criminal Procedure and Article 716 of the Code of Criminal Procedure, the conditions laid down for the adoption of coercive measures by Articles 273 and 280 of the Code of Criminal Procedure are not relevant. The coercive measures ordered in the context of a passive extradition procedure are based on the danger of absconding as a prerequisite for justifying the application of the measure restricting personal liberty; this can be understood as the danger of the extradite's removal from the territory of the requested State, with the consequent risk of failure to comply with the obligation assumed at international level to ensure his or her surrender to the requesting country.
On the other hand, the absence of the conditions for a judgment in favour of extradition is not relevant.
Lastly, the right to reparation for detention suffered for extradition purposes must be ascertained bearing in mind the variety of situations: where the arrest carried out pursuant to Article 716 of the Code of Criminal Procedure has not been followed by validation, provided that the ruling has become final, the right to reparation does not require any other positive condition. The same applies to the provisional application of the coercive measure pursuant to Article 715 of the Code of Criminal Procedure, where it has been revoked pursuant to paragraph 6 of the same article or definitively cancelled following the appeal provided for by Article 719 of the Code of Criminal Procedure. On the other hand, when the precautionary measures are followed by the continuation of the constraint because the extradition request has been submitted, or when the measure is adopted pursuant to Article 714 of the Code of Criminal Procedure, a situation specular to that provided for by Article 314, paragraph 1 of the Code of Criminal Procedure is determined and the right to reparation is conditional on the pronouncement of a judgment unfavourable to extradition (without prejudice to the hypothesis of formal injustice in the event that the measure adopted is deemed unlawful by an irrevocable decision).
2. What has been held on the subject of reparation for detention suffered in the framework of passive extradition procedure is valid, mutatis mutandi, also on the subject of limitation of personal freedom suffered in the framework of the EAW procedure. The defendant Ministry has pointed out some current differences in the disciplines relating to the two institutions. However, these differences are not useful to offer indications on the issue raised by the appeal (the appellant points out the specificity of the grounds for refusal of surrender and the stricter deadlines for the definition of the surrender procedure); while the principle on the reparation of detention suffered for unlawful execution order, also evoked by the appellant Ministry, is irrelevant to the case at hand.
Moreover, it is a prospect inconsistent with the more specific deductions that accuse the Court of Appeal of not having considered that in the case at hand there was no decision of irrevocable acquittal, for the petitioner requested here just as in the extradition procedure; and of not having verified the absence of the conditions for a favourable judgement on extradition.
In fact, the discipline of the European Arrest Warrant, as introduced by Law no. 69 of 2005, between the Member States of the European Union finds elective application, in place of the provisions of the Code of Procedure dedicated to extradition, for all requests for execution relating to offences committed after 7 August 2002; for those relating to offences committed before that date, the provisions on extradition in force prior to the date on which the aforementioned law came into force remain applicable (Article 40, paragraph 2, which is without prejudice to the provisions of paragraph 3).
As for passive extradition, the discipline contemplates arrest by the judicial police, subject to validation by the prosecutor, and the application of precautionary measures by the Court of Appeal.
As regards the former, the jurisprudence of legitimacy has clarified that while in the extradition regime the arrest by the judicial police of the person against whom a provisional arrest warrant has been issued implies a discretionary evaluation (Article 716 of the Code of Criminal Procedure: "in cases of urgency, the judicial police may proceed with the arrest"), in the EAW regime the arrest is configured as a due act (Law no. 69 of 2005, art. 11: "the judicial police shall make the arrest"), subject only to the verification that the alert in the SIS was issued by a "competent" authority of an EU Member State and that it was made in the "required form" (governed, for what concerns us here, by Art. 95 of the Schengen Convention) (Sect. 6, no. 20550 of 5/6/2006, Volanti, Rv. 233743; Sect. 6, no. 40614 of 21/11/2006, Arturi, non mas. on the point; Sect. 6, no. 2833 of 19/12/2006, dep. 2007, Pramstaller, non mas. on the point).
Corresponding to the 'due' nature of the arrest of P.G., the validation of the arrest by the President of the Court of Appeal is based on purely formal assumptions: that is, it is a matter of verifying whether the arrest took place in the 'cases provided for by law' and whether there was no personal error (Law no. 69 of 2005, art. 13, paragraph 2) (Sec. 6, no. 20550 of 5/6/2006, Volanti, Rv. 23374355; Sec. 6, no. 40614 of 21/11/2006, Arturi, non mas. on the point). The Court noted that Law No. 69 of 2005 entrusts the President of the Court of Appeal with a different type of control from that carried out under Article 391 of the Code of Criminal Procedure. both with reference to the terms for validation and with regard to the jurisdictional guarantees and, finally, with regard to the adoption of the coercive measure, the control of the President of the Court of Appeal being exhausted in a merely paper-based verification that does not affect in the least the outcome of the surrender proceedings and the possibility that, within the scope of the proceedings, a precautionary measure more appropriate to the needs of the individual case and, in any event, suitable to ensure the surrender of the extradited person to the requesting State may be adopted (Sez. 6, no. 7708 of 19/2/2007, Sanfilippo, Rv. 235561). It has also been specified that for the validation of the arrest order issued by the President of the Court of Appeal pursuant to Law No. 69 of 2005, art. 13, paragraph 2, to be effective, it is sufficient that the notification of the person in the Schengen Information System (S. I.S.) containing the details of the person's identity is received within ten days. I.S.) containing the indications provided for by Article 6, paragraph 1, of the above-mentioned law, with the exception of that relating to the minimum penalty, which does not affect the application of the precautionary measure (Sez. 6, no. 5583 of 26/01/2011, Beleri, Rv. 249232).
Where the wanted person has been arrested, the President of the Court of Appeal is competent to decide whether to adopt a coercive measure. In fact, given that there can be no temporal hiatus between the validation of the arrest and the decision on the continuation of the state of limitation of personal liberty, it is implicit in the discipline that to decide on this last aspect must be the same organ to which the decision on the validation is entrusted, in accordance, moreover, with what is provided for in extradition matters by Art. 716 c.p.p., paragraph 3 (while for the precautionary decision to be taken in the first instance, L. no. 69 of 2005, pursuant to art. 9, paragraph 4, the collegiate judge is competent).
On the subject of the validation of the arrest of the police, it has been affirmed that the prerequisites for the application of the custodial measure functional to the delivery are those listed in Law no. 69 of 2005, Articles 9 and 13, and are constituted by the information entered in the SIS which is equivalent to the arrest warrant where it contains the necessary information for the identification of the crimes for which the delivery is requested and the indication of the legislation of the issuing State (Sec. 6, no. 7708 of 19/2/2007, Sanfilippo, non mass. on the point). The application of the precautionary measure is not subject to any "request" by the prosecutor, as in general for the precautionary measures L. No. 69 of 2005, ex art. 9, the precautionary measure de quo must be motivated on the necessity of the coercive measure in relation to the danger of flight, expressly referred to with the expression referred to "the need to guarantee that the person whose surrender is requested does not escape the same", L. No. 69 of 2005, ex art. 9, para 4, and with the implicit inclusion of the criteria of Art. 274 c.c.p, lett. b), among the applicable rules according to Title 1 Book 4 of the Code of Criminal Procedure, Law no. 69 of 2005, ex art. 9, paragraph 5, (Sez. 6, no. 42803 of 10/11/2005, Fuso, Rv. 232487; Sez. 6, no. 2833 of 19/12/2006, dep. 2007, Pramstaller, non mass. on the point; Sez. 6, no. 42767 of 5/4/2007, Franconetti, non mass. on the point).
With regard to the measure adopted by the collegiate body, the applicative order must give adequate account of the concrete danger of escape, which constitutes the only precautionary prerequisite for the adoption of the measure, pursuant to Law No. 69 of 2005, Art. 9, para. 5, and of the adequacy and proportionality of the measure to prevent such danger of escape, also with reference to the gravity of the crime charged (Sez. 6, No. 20550 of 5/6/2006, Volanti, Rv. 233745).
The existence of obstacles to surrender, provided for by Law no. 69 of 2005, art. 9, paragraph 6, as an obstacle also to the adoption of coercive measures, presupposes suitable reasons to consider it in concrete terms and at present; and it cannot be considered, when it does not result on the basis of sufficiently certain elements, in the summary deliberation carried out for the limited precautionary purpose, since it must be considered in a different case reserved for the phase of appreciation of the prerequisites of the surrender, for which very short time periods are provided for under penalty of the loss of effectiveness of the measure.
3. Limiting the analysis to the aspects referred to in the appeal, it is finally possible to note that, from what has been set out so far, it appears that the appellant's thesis of the need for an irrevocable acquittal decision does not grasp the normative datum, as interpreted by the jurisprudential interpretation.
Nor is the thesis of the need for an examination of the conditions for a favourable extradition decision well-founded. In the present case, it would be a question, to all intents and purposes, of a judgment in favour of the surrender of the person; and it should simply be noted that in the case under examination, the ruling of the Court of Appeal was a refusal to surrender.
Nor can it agree with the appellant Ministry as to the need for the district court to exercise ex officio powers to supplement the information available, with the acquisition of a 'new' conviction pronounced by the Belgian authorities against the persons for whom surrender had been refused. It has already been written that the only decision relevant for the purposes at hand is the judgment refusing surrender, which has become irrevocable.
In any case, it is true that, on the subject of reparation for unjust detention, although it is the onus of the person concerned, according to civil law principles, to prove the facts underlying the application, also having regard to the solidarity-based foundation of the institution in question, the judge has the power-duty to acquire the documents considered necessary for the purposes of the decision, provided that they are known or knowable to the parties principle formulated in the case where the Court of Appeal had not acquired the precautionary order, the acquittal sentence and the interrogation report: Sez. 4, no. 46468 of 14/09/2018, Rv. 274353). However, in the present case it would have been a question of the acquisition of information concerning a ruling by the Belgian authorities - consequent to the possible restitution of the person concerned in terms and therefore to the possible elimination of the irrevocable conviction which, for not having been adopted at the outcome of a fair trial, was the reason for the refusal to surrender - of no incidence on the matter brought to the attention of the judge of reparation, which is connected to a period of detention that found its cause in that specific EAW and in the consequent irrevocable judgment of refusal to surrender.
4. In conclusion, the appeal must be dismissed and the appellant ordered to pay the costs of the proceedings.
Dismiss the appeal and order the appellant to pay the costs.
Thus decided in Rome, in the Council Chamber, on 12 January 2023.
Filed at the Registry on 12 May 2023