Abstract
This paper analyses the applicable procedures under Italian law when judicial cooperation in criminal matters at international or European level is needed. By focusing on the issue concerning legal remedies, the paper gives attention to the recent reform of the Italian Code of Criminal Procedure on the matter, as well as the Italian legislation implementing the relevant EU framework decisions and directives.
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Notes
- 1.
Arts. 697 and 701 of the Code of Criminal Procedure (hereinafter “c.p.p.”).
- 2.
Arts. 730, 731 and 734 c.p.p.
- 3.
Arts. 723 and 724 c.p.p.
- 4.
On the 2017 reform see extensively Piacente (2018), pp. 25 ff.
- 5.
Many criticised the competence of the Court of Appeal, deemed to be not the best judicial authority to handle legal assistance requests. See Calvanese (2019), pp. 61 ff.
- 6.
Art. 720 c.p.p.
- 7.
Art. 727 c.p.p.
- 8.
Arts. 742 and 743 c.p.p.
- 9.
Art. 26 Cost. allows for extradition of citizens when this is expressly provided for by international treaties. However, when an international treaty allows to refuse extradition of the citizen, the Ministry of Justice shall refuse extradition by taking into account the seriousness of the crime, the relevance of the harm and the personal conditions of the requested person (Art. 697.1-ter c.p.p.).
- 10.
The treatment must result in an unreasonable, disproportionate, and illegal treatment according to national standards (Cass., VI, 3 March 2020, n. 9203).
- 11.
Unless a different penal sanction has been inflicted in the final decision delivered in the requesting state or, if death penalty has been already inflicted, this has been modified afterword with a different type of sanction. According to the Court of Cassation, this provision must be widely interpreted so as to require that the requesting state has to explicitly exclude infliction of death penalty (Cass., VI, 11 June 2019, n. 39443).
- 12.
Before the reform of 2017, Art. 703.2 c.p.p. provided only for the identification of the requested person by the General prosecutor. Questioning has been expressly allowed in order to guarantee the right of defence of the requested person, that shall be assisted by his/her defence lawyer. On this occasion, the requested person may give consent to extradition or renounce the speciality principle. See, more in detail, Marchetti (2019), p. 25.
- 13.
Before the reform of 2017, the requested person was not allowed to renounce the speciality principle. The person could only give his/her consent to extradition.
- 14.
This jurisdictional phase before the Court of Appeal shall be omitted when the requested person has given his/her consent to the General prosecutor.
- 15.
According to Art. 702 c.p.p., the representative of the requesting state is allowed to participate in the internal procedure only if reciprocity is satisfied (in terms of ‘equivalent service’, according to Cass., VI, 3 February 2017, n. 14237).
- 16.
The appointment of an interpreter has been provided for only with the reform of 2017.
- 17.
The Ministry of Justice may eventually decide to refuse extradition even when consent to extradition has been given by the requested person. However, Marchetti (2019), p. 33, underlines that refusal should be based on issues concerning only sovereignty, public order or other essential interests of the state.
- 18.
However, the Court of Cassation takes its decision only on the basis of the existent dossier (Cass., VI, 17 May 2018, n. 25264).
- 19.
Art. 723 c.p.p. has been entirely substituted with the reform of 2017. The deadline of 30 days for the transmission of the request to the judicial authority is therefore a novelty. However, as far as the power of the Ministry of Justice in international cooperation procedures is concerned, no significant changes have been brought about.
- 20.
Art. 724 c.p.p. has been entirely substituted with the reform of 2017, because of the swift of competence for legal assistance requests from the Court of Appeal to the Public prosecutor or the judge of preliminary investigations.
- 21.
Cass., VI, 6 November 2014, n. 53435.
- 22.
Because of their persisting invasive effects on property rights, likely to be protracted until the final sentence. However, a proposal to introduce a judicial control over searches have been put forward recently by the Italian legislator, following the ruling by the ECtHR, judgment of 27 September 2018, Application no. 57278/11 (Brazzi v. Italy), where the Strasbourg Court found a violation of Art. 8 ECHR because no judge had examined the lawfulness or necessity of the search in the applicant’s home carried out by the Italian tax authorities, neither before nor after the search. See Art. 11 of Disegno di legge recante deleghe al governo per l’efficienza del processo penale e disposizioni per la celere definizione dei procedimenti giudiziari pendenti presso le corti d’appello (CDM n. 29 – 13 February 2020).
- 23.
Cass., III, 9 February 2011, n. 28063.
- 24.
See, for instance, Cass., I, 14 November 2014, n. 51839. See also Calvanese (2019), pp. 68 f.
- 25.
Art. 727 has been entirely substituted with the reform of 2017. It now refers generically to “judicial authority”, which includes both judges and Public prosecutors. Before 2017, Art. 727 c.p.p. was explicit about these two bodies.
- 26.
The Court of Cassation has also excluded that defence lawyers can carry out defensive investigations abroad. Since they are public officials when they conduct investigations for their clients, defence lawyers cannot act as such outside Italy.
- 27.
The request may still be blocked by the Ministry of Justice, but only before the same request is transmitted by the Italian diplomatic or consular agent to the foreign competent authority. Calvanese (2019), pp. 80 f.
- 28.
Cass., sez. un., 16 April 2003, n. 21420. Calvanese (2019), pp. 93 ff.
- 29.
The Ministry of Justice does not enjoy much discretion when enforcement of a judgment is requested by another state. Indeed, if international conventions or treaties of which Italy is party provide for an obligation to enforce a foreign judgment, the Ministry shall ask the competent judicial authority for its recognition (Art. 731 c.p.p.). Therefore, the Code of criminal procedure allows enforcement of foreign judgments in Italy only based on international agreements.
- 30.
This is the case when Italy is requested to recognise and execute a foreign judgment. The Code of criminal procedure also provides for recognition of foreign judgments for purposes different from their execution in Italy (when recognition is required to ensure certain effects of foreign judgments to the extent these have repercussions under Italian penal law ex Art. 12 of the Penal code). See Art. 730 c.p.p., which though falls outside the scope of this report.
- 31.
This possibility has been added with the reform of 2017 in order to make the procedure speedier. Picciotti (2019), p. 107.
- 32.
This deadline has been added with the reform of 2017.
- 33.
This is a conversion of the foreign penal sanction into a penal sanction as provided for under Italian law. Specific criteria for such conversion are detailed under Art. 735 c.p.p.
- 34.
Art. 734 c.p.p. has been entirely substituted with the reform of 2017. In its original version, defence lawyers were not recognised locus standi to file an appeal before the Court of Cassation and no deadline for the decision of the high Court was provided for. Picciotti (2019), p. 108.
- 35.
The possibility for the Public prosecutor to put forward a request to the Ministry of Justice has been added in 2017 by the mentioned reform of Chapter XI of the Code of criminal procedure.
- 36.
This specific condition does not apply if the case falls under the application of the Strasburg Convention on the Transfer of Sentenced Persons of 1983 (Cass., VI, 14 October 2014, n. 44089).
- 37.
This is so after the reform of 2017.
- 38.
Before the reform of 2017, defence lawyers were not recognised locus standi to file an appeal before the Court of Cassation.
- 39.
On this aspect of the reform, see De Amicis (2019), pp. 239 ff.
- 40.
It is not clear what the dies a quo of the deadline of 60 days for the delivery of the sentence is, where precautionary measure has not been applied.
- 41.
Ceresa-Gastaldo (2005), pp. 331 ff.
- 42.
Appeal is not allowed against the decision to temporary transfer the requested person, since this decision implies a final positive sentence on the surrender, the only one which can be appealed (Cass., VI, 28 March 2019, n. 14425).
- 43.
To the extent that inflicted detention is no less than 1 year and cannot be suspended.
- 44.
To this regard, see Cass., VI, 9 May 2012, n. 21470, where the Court of Cassation found admissible the appeal by the Public prosecutor against the refusal to issue a European arrest warrant by the judge of preliminary investigations, in consideration of the fact that conditions on which a precautionary custodial measure is founded (and which justifies the issuing of a European arrest warrant) cannot be re-assessed by the judge competent to issue the European arrest warrant.
- 45.
Cass., sez. un., 21 June 2012, n. 30769.
- 46.
Competence of the Public prosecutor in ‘passive’ procedures recalls the competence conferred to the same authority by the Code of Criminal Procedure after the reform of 2017 under legal assistance at international level. See, critically, Rafaraci (2019), pp. 295 ff.
- 47.
Cass., VI, 7 February 2019, n. 14413.
- 48.
However, communication/notification of the recognition decree is not due to these persons. See, critically, Lorenzetto (2019), pp. 352 and 358 f.
- 49.
For this conclusion see Cass., VI, 14 February 2019, n. 11491. In different terms see Cass., VI, 31 January 2019, n. 8320, where the Court of Cassation affirmed that ‘re-examination’ (riesame) against the seizure executed following a European investigation order should be allowed.
- 50.
Cass., III, 11 October 2018, n. 5940.
- 51.
Rafaraci (2019), pp. 308 ff.
- 52.
- 53.
The police is not given competence to issue a European investigation order. Marcolini (2019), p. 317.
- 54.
Under Arts. 9.3 and 10 of Legislative Decree n. 108/2017 (EIO) and Art. 13 of Legislative Decree n. 161/2010 (enforcement of judgments), grounds for refusal are all mandatory. As for the EAW, while Art. 18 of the Law n. 69/2005 (EAW) provides for mandatory grounds for refusal, the recently added Art. 18-bis (added by Law n. 117/2019) now provides for three different optional grounds for refusal: in case of lis pendens in Italy on the same facts against the requested person; in case Italian jurisdiction applies according to territoriality; in case the requested person is an Italian citizen or a person residing in Italy. See Spagnolo (2019), pp. 270 ff.
- 55.
See Art. 708.5 c.p.p., which provides for the suspension of the maximum period of 15 days for the material surrender of the requested person when the competent administrative judge suspends the decision taken by the Ministry of Justice. See also Art. 714.4-bis c.p.p., which provides for the suspension, up to 6 months, of the maximum period of 3 months for the duration of a precautionary measure against the requested person, pending appeal before the administrative judge on the decision of the Ministry of Justice.
- 56.
According to established case-law, the Court of Appeal should make only an extrinsic/formal assessment when a treaty or a convention applies (see, for example, Cass., VI, 7 January 2009, n. 1122; Cass., VI, 10 October 2008, n. 40283). However, in the last few years, perhaps following the adoption of the EAW (where the elements of suspicion should be assessed by the requested Italian authority), the Court of Cassation seems to have adopted a stricter interpretation of this requirement (see, for example, Cass., VI, 25 September 2019, n. 40552, according to which the Court of Appeal has to examine the probability that the suspect is the author of the alleged crime. See also: Cass., VI, 21 February 2019, n. 8063; Cass., VI, 17 July 2014, n. 43170; Cass., VI, 28 May 2013, n. 26290). Marchetti (2019), p. 27.
- 57.
There must have been a formal charge. Mere investigation does not constitute on-going proceedings for the purpose of refusing extradition (Cass., VI, 12 September 2018, n. 48097).
- 58.
To this end, different legal qualifications and different penal sanctions are not relevant (Cass., VI, 7 May 2019, n. 26718).
- 59.
For instance, when the sentence is the result of proceedings where cross examination has not been guaranteed (Cass., VI, 5 February 2019, n. 16877).
- 60.
It is sufficient that evidence on the alleged responsibility of the requested person is adequate to found the assessment on the seriousness of the elements of suspicion, which anyway pertains to the issuing authority (Cass., VI, 3 October 2017, n. 45640; Cass., VI, 6 November 2013, n. 44911; Cass., sez. fer., 24 August 2010, n. 32381; Cass., VI, 17 September 2008, n. 35832; Cass., VI, 16 April 2008, n. 16362; Cass., sez. un., 30 January 2007, n. 4614). Italian judicial authorities must check only if the elements against the requested person are complete and suggestive of a crime committed by the requested person (Cass., sez. fer., 31 August 2017, n. 39864). However, the crime must be ascribable to the person concerned by the EAW (Cass., sez. fer., 30 July 2019, n. 35186) with a high probability, according to the elements gathered during investigations and considered by the issuing authority as serious elements of suspicion (Cass., VI, 6 June 2017, n. 2881).
- 61.
Lorenzetto (2019), p. 373. On this point, see Cass., II, 29 October 2019, n. 49506, where the Court of Cassation found illegitimate the decision of the judge that refused the issuing of a European investigation order upon request of the defence on the grounds that the gathering of evidence abroad was impossible while it was not.
- 62.
Corte cost., 22 October 2007, nn. 348 and 349.
- 63.
Compliance with ECHR is also formally required under Art. 2.1(a) of Law n. 69/2005 on the EAW.
- 64.
See: Cass., II, 24 January 2017, n. 3679; Cass., VI, 11 July 2017, n. 34439.
- 65.
However, the Court of Cassation tends to narrow the scope of the right to defence when considering alleged violations of testimony gathered abroad: as long as the testimony is given in compliance with the procedural rules of the requested state and those rules do not infringe laws on public order and public morality, it shall be used in the trial (Cass., III, 16 December 2014, n. 17379, where the testimony was given without the participation of the defence lawyer of the accused; Cass., III, 19 July 2012, n. 47878). Also, interrogation of the accused abroad, following a request of legal assistance by Italian judicial authorities, can be used in domestic criminal proceedings even if the accused was not previously warned of his/her right to silence, recognised by the Code of Criminal Procedure (Cass., VI, 24 April 2012, n. 43534). Piacente (2018), pp. 41 f.
- 66.
The possibility to condition the enforcement of a judgment both in the passive and active cooperation procedure has been added only with the reform of 2017. Before 2017, this possibility was much discussed and, in the Baraldini case, was dismissed by the Constitutional Court, 19–22 March 2001, n. 73. On this point, see amplius Picciotti (2019), pp. 125 ff.
- 67.
Suspensory effect of the appeal before the Court of Cassation is also implicit in the provision under Art. 708.1 c.p.p., according to which the Ministry of Justice ultimately decides on extradition no later than 45 days after receiving the notification of the filing of the sentence delivered by the Court of Cassation.
- 68.
There is no need for the translation to be certified as long as the conformity with the original text is proved (Cass., VI, 9 February 2018, n. 15862).
- 69.
However, the precautionary measure applied after the validation of the arrest following a European arrest warrant is not invalid if the European arrest warrant has not been translated as long as the arrested person has been informed by the police of the European arrest warrant and its content in a comprehensible language (Cass., VI, 30 October 2019, n. 49545; Cass., VI, 5 April 2017, n. 19025).
- 70.
- 71.
Lorenzetto (2019), p. 350.
- 72.
Delayed communication results in a violation of the right of defence (Cass., VI, 31 January 2019, n. 8320).
- 73.
Rafaraci (2019), p. 303.
- 74.
If this due information is not given upon arrest, the arrested person can invoke nullity in the validation hearing (Cass., VI, 6 November 2017, n. 51289).
- 75.
- 76.
Siracusano (2017), p. 236.
- 77.
Therefore, in line with the EU Directive, if the requested person is not arrested, he/she will not benefit from legal aid.
- 78.
Grisonich (2019), p. 218.
- 79.
In compliance with Art. 2.2 of Directive 2010/64/EU.
- 80.
Cass., VI, 12 February 2015, n. 20634.
- 81.
Cass., III, 4 April 2019, n. 29406. The appeal before the Court of Cassation lodged directly by the defendant is inadmissible according to the general provision under Art. 613 c.p.p., as amended by Law n. 103/2017 (Cass., VI, 13 September 2017, n. 42062).
- 82.
Cass., II, 19 June 2018, n. 30379.
- 83.
Rafaraci (2019), p. 311.
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Rafaraci, T. (2021). Country Report “Italy”. In: Böse, M., Bröcker, M., Schneider, A. (eds) Judicial Protection in Transnational Criminal Proceedings. Legal Studies in International, European and Comparative Criminal Law, vol 5. Springer, Cham. https://doi.org/10.1007/978-3-030-55796-6_5
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