The optional refusal to execute an EAW due to the pendency of criminal proceedings for the same facts cannot be validly opposed when the protective order issued in the context of proceedings involving crimes under the jurisdiction of the European Public Prosecutor's Office (EPPO): in such a case, in fact, the problems of interjurisdictional coordination relating to the pendency of criminal proceedings for the same facts at different judicial authorities of several EU member states have already found a solution, albeit a provisional one, as a result of the EPPO's assumption of coordination of investigations.
With the coordination of investigations by the EPPO, there is the consequent allocation, within it, of competencies among the member states and the possible exercise of the right of avocation under Art. 27 of the Regulation, after consultation, where appropriate, with the competent Authorities of the Member State, or Member States, concerned: avocation from the exercise of which derives the further effect that the competent judicial Authorities of the other Member States are obliged to transfer the file to EPPO and to refrain from further acts of investigation in relation to the same crime: a circumstance which, excludes per se, that the prohibition of ne bis in idem may be incurred.
It must be considered that the coordination requirements underlying the provisions relating to the consultation mechanism set up by the aforementioned Framework Decision 2009/948/JHA of November 30, 2009 on prevention and settlement of conflicts concerning the exercise of jurisdiction in criminal proceedings have already found, or are destined to find, a temporary point of balance for the purposes of the conduct of investigations and subsequent determinations already within the prosecuting body established at the European level.
Only in the event that a conflict arises between the EPPO and the national prosecutor's office regarding the possible attraction of the criminal conduct covered by the E.A.M. to the scope of the European Public Prosecutor's Office's own jurisdiction and its exercise pursuant to Articles 22, 23 and 25(2) and (3), the resolution of the conflict could be referred pursuant to Article 16 Leg. February 2, 2021, No. 9, to the determinations of the General Prosecutor at the Court of Cassation, as the judicial authority identified as the one competent to decide, at the national level, on any conflict created between the European Public Prosecutor's Office and one or more Public Prosecutors' Offices, implementing the provisions of Article 25(6) of EU Regulation 2017/1939.
The European legislation establishing the EAW aims not only to solicit, but to achieve closer cooperation between the competent judicial authorities of the Member States, so as to "prevent situations in which the same person is the subject, in relation to the same facts, of parallel criminal proceedings in different Member States, which could give rise to a final decision in two or more Member States and thus constitute a violation of the ne bis in idern principle" [Article 1(2)(a) of Framework Decision 2009/948/JHA].
In turn, the notion of "parallel proceedings" is carved into domestic law by Art. 2(1)(a), Legislative Decree cited above, which defines them as "criminal proceedings, whether at the preliminary investigation stage or at the stages following prosecution, pending in two or more member states for the same facts against the same person."
(unofficial automatic translation)
Italian Supreme Court
Corte di Cassazione
Sec. 2 Criminal
No. 16561 Year 2022
President: RAGO GEPPINO
Rapporteur: PELLEGRINO ANDREA
Hearing Date: 27/04/2022 - filing 28/04/2022
JUDGMENT
On the appeal brought by.
SP, born in ** on **/1990
represented and assisted by the lawyer FSF and the lawyer AG, in confidence
against Order No. 11/2021 dated 03/15/2022 of the Court of Appeal of Reggio Calabria;
Having regard to the acts, the contested order and the appeal;
noted the defense request for oral argument in presence pursuant to Article 23, paragraph 8, Decree Law No. 137/2020;
read the defense brief dated 10/04/2022 containing new plea with question of constitutional legitimacy;
Hearing the report delivered by Councilor Andrea Pellegrino;
heard the indictment in which the Deputy Attorney General, Simone Perelli, requested the dismissal of the appeal and the declaration of manifest groundlessness of the alleged question of constitutional legitimacy;
heard the argument in which the defense attorneys, FSF and AG, asked that the appeal be granted, referring to the proposed grounds.
HELD IN FACT
1. By order dated 03/15/2022, the Court of Appeals of Reggio Calabria, ruling on the annulment with reference from the Supreme Court of Cassation (Sentence No. 46642/21 of 12/17/2021 of the Sixth Criminal Section), in execution of the M.A.E. issued on 10/13/2021 by the European Public Prosecutor's Office - Munich Center, related to the domestic arrest warrant issued by the Munich Amtsgericht on 9/29/2021 for the crimes of tax evasion and criminal conspiracy committed in Eichstat from 2017 to 2021, in connection with the issuance of a pre-trial order ordering custody in prison, ordered the surrender of SB to the judicial authority of Germany, with the condition that he be allowed to serve in Italy any sentence imposed as a result of the criminal trial in the requesting state.
2. An appeal has been lodged against the aforementioned order in the interest of SP, the grounds for which are set forth below insofar as strictly necessary for the statement of reasons pursuant to Article 173 disp. att. cod. proc. penale.
2.1. The appellant complains:
-Violation ex art. 606, paragraph 1, lett. b) and c) cod. proc. pen. with reference to Law no. 69/2005 in relation to art. 18 bis lett. a) and b) of the same law, for having ordered the delivery of Sebastiano Pelle to the German judicial authority, in execution of a European arrest warrant even though it concerned crimes committed in part in the territory of the Italian State (first ground).
Despite the fact that at the time of the annulment the judges of legitimacy had considered it necessary to pose the problem of judicial cooperation to the referring judge, in order to ensure not only the interest in the repression of crimes involving the territories of more than one State but also the interest in ensuring the principle of "ne bis in idem," the Court of Appeal of Reggio Calabria did not make good use of the indications provided. Indeed, with the order issued on 27/10/2021 by the judge for preliminary investigations of the Court of Turin, all the prerequisites required to integrate the case of optional refusal materialized, that is, the existence of criminal proceedings in progress in Italy on the fact subject of the M.A.E. and against the same person. The M.A.E. appears to have been issued by the German judicial authority for an investigation involving a criminal organization, headed by P, aimed at carrying out tax offenses in the car trade and multiple tax offenses. The criminal organization allegedly set up a number of companies in Italy, which it used to sell the vehicles in VAT evasion in Italy; in addition, the Italian companies allegedly served as recipients of fictitious invoices issued by the German entities. As a result, P, in conjunction with other individuals, allegedly evaded VAT in Italy for a total amount of 7,156,743.18 euros and, in Germany, through the same conduct, for a total of 5,631,619.03 euros. The denounced conflict cannot be resolved as indicated by the Territorial Court by making exclusive reference to the choice made by the European Public Prosecutor's Office to hinge jurisdiction in one or the other State of the Union, but must find its solution according to the forms and modalities proper to the mechanism designed by Framework Decision 2009/948/JHA of November 30, 2009 on the prevention and resolution of conflicts relating to the exercise of jurisdiction in criminal proceedings and d. Legislative Decree No. 29 of 2016, also in order to avoid the initiation of unnecessary parallel proceedings, which could result in aviolation of the principle of ne bis in idem, enshrined in Article 50 of the Charter of Fundamental Rights of the European Union, as a fundamental guarantee directly applicable in the European legal space.
-Violation ex art. 606, paragraph 1, lett. b) and c) cod. proc. penale with reference to L. no. 69/2005 in relation to art. 24 of the same law, for having ordered the surrender of PS to the German judicial authority, in execution of a European arrest warrant by failing to evaluate the request for suspension of the measure (second ground).
It censures the decision of the Reggina Court that disregarded the defense request for suspension of the execution of the measure pursuant to Article 24 L. 69/2005 pending the definition of the Italian proceedings, failing to evaluate the seriousness of the crimes charged and their date of consummation, but also the state of the proceedings, the condition of restriction of freedom, the complexity of the charges and proceedings, from the stage or degree of pendency, the possible definition with final judgment and the extent of the sentence to be served.
2.2. In the subsequent memorandum of 10/04/2022, the appellant's defense proposed as an additional ground of appeal the question of the constitutional legitimacy of the discipline dictated by Article 18 bis L. 69/2005, which transposed into Italian law Article 4 point 6 of Framework Decision 2002/584/JHA on the subject of optional non-execution of the European arrest warrant for violation of Articles 3, 117, paragraph 1, 26 Const, 14, paragraph 7 of the International Covenant on Human Rights made enforceable by I. 881 of 1977, 50 of the Charter of Fundamental Rights of the European Union, insofar as it does not provide that the request for surrender, when parallel proceedings for the same facts are pending in the issuing and executing State, remains suspended until the conflict resulting from the joint cognisance of the judicial authority of several Member States is resolved.
CONSIDERED IN LAW
1. The appeal is unfounded and, as such, undeserving of upholding.
2. The Court of Cassation, in its annulment, took note of the new element constituted by the existence of criminal proceedings in Italy pending at the Turin Public Prosecutor's Office where P, although not the addressee of any precautionary measure, is under investigation for the crime of aggravated continued fraud in complicity, asked the referring judge to assess - in its free discretion whether or not to oppose the optional ground for refusal - whether the conduct ascribed to the appellant coincides with the conduct for which he is being prosecuted in Germany, since it involves tax fraud in the car trade carried out by the same companies operating in Italy and Germany.
3. The territorial court, on remand, recognizing the non-complete overlapping of the charges, especially those regarding VAT evasion that do not match in the Italian proceedings and pointing out that there are transnational offenses with respect to which the European Public Prosecutor's Office issued the M.A.E. on the precautionary order of the Munich Judicial Authority, an eventuality that presupposes resolved coordination between the judicial authorities of the member states and the attribution of jurisdiction to the requesting judicial authority, without considering that the crimes regarding VAT evasion seem to be better able to be considered and evaluated unitarily to the other crimes for which the surrender was requested, ordered the surrender of SP to the German judicial authority, with the condition that he be admitted to serve in Italy any sentence imposed as a result of the criminal trial in the requesting state.
4. The appellant's grievances raised with regard to the appreciation of the ground for refusal under Article 18-bis lett. a) I. No. 69 of 2005 are unfounded.
It should be noted at the outset that, on the subject of the European Arrest Warrant, the ground for optional refusal to surrender, provided for by the aforementioned legislative provision for facts of crime committed in whole or in part in the territory of the State, requires at the very least the existence of elements symptomatic of the State's actual intention to assert its jurisdiction over the fact that is the subject of the EAW.
The commission of the crime, in whole or in part, in the territory of the State requested for surrender currently constitutes an optional and no longer mandatory ground for refusal under Article 18-bis, paragraph 1(a), of Law No. 69 of April 22, 2005, as interpolated by Article 15 of Legislative Decree No. 10 of February 2, 2021, which poured into it the original (mandatory) ground for refusal under Article 18(p), later amended by Article 18-bis(b), Law cited above, following the regulatory intervention made by Law No. 117 of October 4, 2019: an amendment, this one, intervened in order to promote closer coordination in the action of repression of crimes at the European level and, at the same time, in order to prevent and resolve conflicts of criminal jurisdiction between the member states of the European Union, in light of recital 9 of Council Framework Decision 2009/948/JHA of November 30, 2009, transposed into domestic law by Legislative Decree No. 29 of February 15, 2016.
4.1. The prerequisites for the configurability of this ground for refusal are identified by the jurisprudence of this Supreme Court, which, in this regard, has established the principle that such a hostile condition must emerge with certainty from the acts (Sez. 6, no. 27825 of 30/06/2015, Ignat" Rv. 264055) and is recognizable when a part of the conduct, even minimal, as long as it is preordained to the achievement of the criminal objective, has occurred in the Italian territory (cf, Sect. 6, no. 40831 of 18/09/2018, P., Rv. 274121; Sect. 6, no. 5548 of 01/02/2018, Manco, Rv. 272198; Sect. 6, no. 13455 of 18/03/2014, Maligi, Rv. 261097).
The realization of the crime in the Italian territory must result with certainty by reason of a factual picture that can be deduced in a way that cannot be disputed from the same elements offered by the issuing authority or from those provided during integration pursuant to Art. 16 of Law No. 69 of 2005 (Sect. 6, No. 45669 of 12/29/2010, Llanaj, Rv. 248973), the mere assumption that the crime took place in whole or in part in the territory of the State not being sufficient for this purpose (Sect. 6, No. 17704 of 04/18/2014, Araujo Gomez, Rv. 259345).
It is necessary, in other words, that the deliberative scrutiny in this regard carried out by the judges of merit allows for the verification of the existence of "the same criminal conduct" carried out by the "same person," even if only in part, in the territory of the State (Sec. 6, No. 2959 of 22/01/2020, Maravela, Rv. 278197). The segment of the criminal conduct for which the refusal to surrender can be validly opposed, must be understood in a "naturalistic" sense, since even a simple portion of behavior lacking the requirements of suitability and unequivocalness required for the configurability of the attempt may well be relevant in this sense (Sez. F, No. 34572 of 20/08/2008, Kaimovsy Saso, non mass.).
4.2. The obstructive condition based on the territoriality clause presupposes a subjective element of connection capable of founding the interest in the opposability of a motive of refusal characterized, on its objective side, by the realization, even only in a fragment of it, of the conduct in the territory of the State, thus of any act of the criminal process, provided that the same is appreciable in such a way as to link the part of the conduct carried out in Italy to that committed in the foreign territory (Sez. 6, no. 56953 of 09/21/2017, Guerini, Rv. 272220).
One is certainly outside the obstructive condition in cases where:
-other crimes, unrelated to the object of the euromandate, have been committed on Italian territory, even if they are attributable to the same type of crime (Sez. 6, no. 48946 of 04/12/2015, Certan Petru, non mass.);
-the conducts, taken as a whole (i.e., those committed on Italian territory and those on foreign territory), are in concrete terms, from a naturalistic and ontological point of view, distinct and autonomous, beyond their partial overlapping in terms of type, causality or mode of realization;
-the conducts were exclusively consummated abroad.
4.3. Without prejudice to the foregoing, the College points out that the aforementioned European legislation aims not only to solicit, but to achieve closer cooperation between the competent judicial authorities of the member states, so as to "prevent situations in which the same person is subject, in relation to the same facts, to parallel criminal proceedings in different member states, which could give rise to a final decision in two or more member states and thus constitute a violation of the ne bis in idern principle" [Article 1, paragraph 2(a), of Framework Decision 2009/948/JHA].
In turn, the notion of "parallel proceedings" is carved into domestic law by Article 2(1)(a), Legislative Decree cited above, which defines them as "criminal proceedings, whether at the preliminary investigation stage or at the stages following prosecution, pending in two or more member states for the same facts against the same person."
Within this axiological perspective, it should be noted how the territorial court correctly carried out the discretionary appreciation of merit required of it, having found that the contested criminal conducts were not superimposable (before the Turin judicial authority, P appears to be under investigation only for articles 110, 81 cpv, 640, paragraphs 1 and 2, 62 bis cod. penale): it is, therefore, a matter of facts, even abstractly not coincident, nor otherwise connectable with each other and, in any case, it appears completely undemonstrated the assumption of the commission in the national territory even of a simple "fragment" included - under the naturalistic profile and within the same criminal iter - in the criminal conduct committed on German soil (it has already been said of the irrelevance of the mere "hypothetical data").
4.4. Moreover, even if it were to be acknowledged that in the present case, on Italian territory, at least part of the conduct for which specifically prosecution is taking place abroad occurred, according to the description that of the relevant factual substratum of the crime hypothesis that is the subject of the request for surrender was deemed to be offered in the eurordinance coming from the issuing State, nevertheless the College considers how the refusal cannot be validly opposed having been the pre-trial order issued in the context of proceedings concerning crimes within the competence of the European Public Prosecutor's Office (EPPO): in such a case, in fact, the interjurisdictional coordination problems related to the pendency of criminal proceedings for the same facts in different judicial authorities of several EU member states have already found a solution, albeit a provisional one, as a result of the EPPO taking over the coordination of investigations (Sez. 6, no. 46641 of 17/12/2021, Parrinello, Rv. 282393).
5. The second ground is also unfounded.
While wishing to disregard the tardiness of the censure, since it was not raised in the previous rescinding judgment, with consequent extraneousness to the cognitive and deliberative perimeter of the referring court, the College points out how, with the coordination of investigations by the EPPO, the consequent allocation, within it, of competences among the member states occurs and the possible exercise of the right of avocation under Art. 27 of the Regulation, after consultation, where appropriate, with the competent Authorities of the Member State, or Member States, concerned: avocation from the exercise of which derives the further effect that the competent judicial Authorities of the other Member States are obliged to transfer the file to EPPO and to refrain from further acts of investigation in relation to the same crime: a circumstance which, excludes per se, that the prohibition of ne bis in idem may be incurred or that applications for suspension of the non-existent Italian precautionary measure against P should be deliberated (the P, it has been seen - see - page 6 of the judgment of annulment. p. 6 of the judgment of annulment - is not the recipient of any precautionary measure by the Turin judicial authority).
In the occurrence of such an eventuality, in fact, it must be considered that the coordination requirements underlying the provisions relating to the consultation mechanism set up by the aforementioned Framework Decision 2009/948/JHA of November 30, 2009 on prevention and settlement of conflicts concerning the exercise of jurisdiction in criminal proceedings have already found, or are destined to find, a temporary point of equilibrium for the purposes of the conduct of investigations and subsequent determinations already within the prosecuting body established at the European level.
It should also be considered that the jurisdiction exercised in the present case by the European Public Prosecutor's Office is based on Articles 22(1) and (2), 23, 120(2) of the aforementioned Regulation, in conjunction with Articles. 2 and 3 of Directive (EU) 2017/1371 of the European Parliament and of the Council of July 5, 2017 on the fight against fraud affecting the financial interests of the Union by means of criminal law: competence, this, the determination of which has not been the subject of specific censure by the appellant, appearing, at present, to be consistent with the reference to VAT fraud offenses and their realization in a transnational form, by an organized group and with the exceeding of the minimum threshold provided for of a total damage exceeding ten million euros (it has been seen how VAT evasion in Italy would amount to a total amount of 7. 156,743.18 and, in Germany, 5,631,619.03 euros).
Only in the event that a conflict arises between the EPPO and the National Public Prosecutor's Office regarding the possible attraction of the criminal conduct covered by the E.A.M. to the sphere of application of the European Public Prosecutor's Office's own jurisdiction and its exercise pursuant to Articles 22, 23 and 25, paras. 2 and 3, the resolution of the conflict could be referred pursuant to Article 16 d.lgs. February 2, 2021, No. 9, to the determinations of the General Prosecutor at the Court of Cassation, as the judicial authority identified as the one competent to decide, at the national level, on any conflict created between the European Public Prosecutor's Office and one or more Public Prosecutors' Offices, in implementation of the provisions of Article 25(6) of EU Regulation 2017/1939.
6. The foregoing arguments render the proposed question of constitutionality irrelevant.
7. The ruling is followed, by the provisions of Article 616 of the Code of Criminal Procedure, by an order that the appellant pay the costs of the proceedings. Sends the Clerk's Office for the fulfillments referred to in Article 22, paragraph 5, of Law No. 69 of 2005.
P.Q.M.
Dismisses the appeal and orders the appellant to pay the costs of the proceedings. Sends the Clerk's Office for the fulfilments referred to in Article 22, paragraph 5, of Law No. 69 of 2005.
Thus decided in Rome on 04/27/2022.