It is lawful to validate the arrest of the foreign national who is not an Italian citizen even following the entry into force of Legislative Decree No. 32 of 4 March 2014, which implemented Directive 2010/64/EU on linguistic assistance, without first questioning him due to the impossibility of finding an interpreter in a timely manner, since this is a case of force majeure that does not prevent the judge from deciding on the legitimacy of the actions of the judicial police.
SUPREME COURT OF CASSATION
SIXTH CRIMINAL SECTION
(date of hearing 15/06/2023) 19/07/2023, no. 31431
Dr. VILLONI Orlando - President -
Dott. CALVANESE Ersilia - rel. Counsellor -
Dott. VIGNA Maria Sabina - Consigliere - - Dott.
Dott. TRIPICCIONE Debora - Consigliere -
Dott. DI GERONIMO Paolo - Consigliere -
has pronounced the following:
JUDGMENT
on the appeal brought by:
PUBLIC PROSECUTOR AT THE COURT OF LECCE;
in the proceedings against:
A.A., born in (Omissis);
against the order of 20/02/2023 of the Court of Lecce;
Having regard to the acts, the measure complained of and the appeal;
Having heard the report of Counsellor Dr. CALVANESE Ersilia;
Having read the requests of the Public Prosecutor, in the person of the Deputy Public Prosecutor, Dr. MARINELLI Felicetta, who concluded by requesting the annulment with referral of the order under appeal.
Proceedings
1. The Court of Lecce, hearing the case pursuant to Article 449, paragraph 1 of the Code of Criminal Procedure, did not rule on the request for validation of the arrest in flagrante delicto of A.A. due to the impossibility of finding an interpreter and therefore returned the documents to the Public Prosecutor.
By a concurrent order, the same judge applied the precautionary measure of custody in prison to the suspect.
2. The Public Prosecutor indicated in the epigraph lodged an appeal for cassation against both the above-mentioned ordinances, putting forward the grounds for annulment, as summarised in accordance with the provisions of Article 173 of the Code of Criminal Procedure.
2.1. Abnormality of the decision not to validate and return the documents to the Prosecutor.
The Court should have proceeded on the request for validation, even in the presence of the impossibility of carrying out the interrogation of guarantee for a force majeure reason (such as the unavailability of a Turkish-speaking interpreter).
Similarly, the Court was wrong to consider the presence of the interpreter a condition for the admissibility of the proceedings.
2.2. Abnormality of the order applying the precautionary measure due to erroneous and contradictory reasoning.
Given the failure to validate and the return of the acts to the Public Prosecutor as regards the procedure, the Court could not rule on the precautionary measure because the conditions were lacking and it was not entitled to issue it.
3. A.A.'s defence submitted a written statement, requesting that the appeal be declared inadmissible or in any event dismissed.
Pleas in law
1. The appeal is well founded and must be allowed in the terms that follow.
2. The first plea for annulment must be upheld.
As regards the lack of a need to decide on the validation of the arrest in flagrante delicto, the College intends to give continuity to the principle already affirmed by this Court, according to which, even following the entry into force of Legislative Decree no. 4 March 2014, no. 32 of 4 March 2014, which implemented Directive 2010/64/EU on linguistic assistance, it is legitimate to validate the arrest of the foreign national without first questioning him or her due to the impossibility of finding an interpreter in a timely manner, there being in such a case a case of force majeure that does not prevent the judge's decision on the legitimacy of the actions of the judicial police (Sez. 4, no. 4649 of 15/01/2015, Rv. 262034).
Therefore, the Court had to proceed on the request for the validation of the arrest in flagrante delicto, with the consequence that the return of the acts to the Public Prosecutor's Office without carrying out this task and therefore not ruling on the admissibility of the summary procedure must be considered erroneous.
The refusal to institute the summary procedure was, in conclusion, an undue procedural choice on the part of the judge, a decision affected by abnormality from a functional point of view, in that it resulted in the undue regression of the proceedings, outside the permitted cases (only where he considers that he does not validate the arrest, due to the lack of the legal requirements, can he order the return of the documents to the Public Prosecutor for him to proceed with ordinary proceedings).
The contested order must therefore be set aside.
3. As to the precautionary measure, the appeal is devoid of interest.
In the five days following the precautionary order, it was revoked.
Therefore, there is no interest of the public prosecutor in the appeal with respect to the genetic order.
4. On the basis of the foregoing, only the order with which the Court failed to rule on the request for validation must be annulled so that the judgement on the validation never previously carried out can be proceeded with, thus requiring the referral back to the competent judge to carry it out (Sec. 2, no. 2732 of 10/11/2011, Rv. 251795).
The referral is indispensable in order to allow the constitution of a legitimising title for the restriction in state of arrest before the issuance of the coercive measure and the assessment of the factual prerequisites, which in the present case has not been carried out and which cannot be carried out by this Court (as instead is possible where an assessment, albeit negative, has been carried out, see, among many others, Sec. 5, no. 1814 of 26/10/2015, dep. 2016, Rv. 265886, Sec. 5, no. 21183 of 27/10/2016, dep. 2017, Rv. 270042).
P.Q.M.
Annuls the contested order of 20 February 2023 not to proceed on the validation of the arrest in flagrante delicto and refers the case back to the Court of Lecce for a new trial.
Declares the remainder of the appeal inadmissible.
Thus decided in Rome, on 15 June 2023. Filed at the Court Registry on 19 July 2023