In a criminal trial, the judge must verify in any case that there has been an effective knowledge of the trial by the defendant, without inadmissible presumptions.
(unofficial translation)
Court of Cassation
United Criminal Sections
Judgment No. 23948 Year 2020
Hearing Date: 28/11/2019 - filed 17/08/2020
JUDGMENT
on the appeal brought by the
Attorney General at the Court of Appeal of Genoa
against the judgment of 17/4/2018 of the Court of Assize of Appeal of Genoa issued against
IDM born in Egypt on **/1994
Having regard to the acts, the contested decision and the appeal;
having heard the report by member Pierluigi Di Stefano
heard the conclusions of the Public Prosecutor, in the person of the Deputy Prosecutor General Elisabetta Cesqui, who concluded by requesting the dismissal of the appeal.
IN FACT
1. The Court of Assizes of Genoa by judgment of 31 March 2017 sentenced in absentia DMI, fugitive, for the crimes of: 1) criminal conspiracy aimed at several offences of illegal introduction into Italy of non-EU citizens by transport by sea; 2) art. 12, paragraph 3, Legislative Decree no. 286 of 25 July 1998 for having, on 19 July 2014, introduced into Italy 106 non-EU foreigners, transporting them by sea from Egypt to Sicily; 3) art. 495, paragraph 2, Criminal Code for having made on 22 July 2014 false statements to the State Police regarding his identity.
1.1. The public defender lodged an appeal on the grounds of liability only.
2. The Genoa Court of Assizes of Appeal by judgment of 17 April 2018 declared ex officio the nullity of the first-instance judgment, considering that it had been carried out in the absence of the defendant outside the cases provided for.
2.1. In particular, it observed:
- four days after disembarking in Italy, on 22 July 2014, the defendant was subject to identification by the State Police in Genoa and on that occasion he declared false personal details;
- he was informed that proceedings would be instituted against him for breach of the rules on the illegal entry of foreigners and, as he did not have a trusted lawyer, one was appointed for him, the lawyer Alessandra Poggi;
- invited to declare domicile, the defendant elected domicile with the public defender;
- "This act was considered [by the court of first instance] - pursuant to Article 420-bis c. 2 of the Code of Criminal Procedure. - proof of knowledge of the proceedings as well as of the will to evade knowledge of the proceedings and its acts".
2.2. The Court of Assizes of Appeal, on the other hand, held that this assessment of the scope of the election of domicile in the given context was erroneous.
The Court of Appeal, on the other hand, held that such assessment was erroneous in the given context, stating, in agreement with certain decisions of the jurisprudence of legitimacy, that the defendant's awareness of the criminal proceedings pending against him cannot be inferred from the election of domicile with the public defender carried out at the time of his identification by the judicial police in the immediacy of the investigation of the offence, nor that he can be considered informed of the existence of proceedings against him only on the basis of an act carried out on his own initiative by the judicial police before the formal entry of the name of the person under investigation in the register pursuant to Article 335 of the criminal proceedings code.
He therefore considered these rules to be relevant in the present case, in which the identification report was prior to the commencement of criminal proceedings and Ismail could not have been aware of his status as a suspect.
2.3. Moreover, after that moment he had left and could no longer be found, being declared a fugitive in connection with the execution of the custody order issued in the meantime.
3. The Public Prosecutor at the Court of Appeal of Genoa appealed against this decision, claiming violation of Article 420-bis of the Code of Criminal Procedure, considering that the first judge had correctly held that there were the conditions to proceed in absentia.
3.1. He points out that:
- It is erroneous to hold that knowledge of the proceedings prior to the registration in the register pursuant to Article 335 of the Code of Criminal Procedure is irrelevant; this circumstance has no effect on the suspected person's knowledge of the proceedings and cannot represent a discretional criterion.
- For the purposes of the knowledge required to proceed in absentia, it is sufficient that the party knows that criminal proceedings may be commenced. Significant in this sense is the provision in Article 161 of the Code of Criminal Procedure which provides that the suspect must declare his domicile even before formal registration in the register of suspects: this shows that the status of person under investigation is not at all conditioned by formal registration.
- On the other hand, it is necessary to assess whether the absence is the result of a voluntary choice, which in the present case is demonstrated by the elusive behaviour of the person concerned who, subjected to a photo-opening in Syracuse on the occasion of another clandestine landing, had given false personal details, evidently in order to evade justice.
- It is erroneous to exclude that the knowledge of the proceedings may derive from an act of the judicial police prior to the registration pursuant to Article 335 of the Code of Criminal Procedure, since the same Article 420-bis of the Code of Criminal Procedure provides for the hypothesis of arrest in flagrante delicto, which is certainly ordered prior to such registration.
3.2. He also recalls the jurisprudence of legitimacy which, on the subject of rescission of the judgement, considers that when the defendant has not fulfilled his duties of diligence in keeping himself informed there is the condition of culpable lack of knowledge of the trial.
4. The First Criminal Section of this Court, to which the proceedings had been assigned, by order of 29 January 2019 referred the case to these United Sections, noting a conflict of case law concerning the possibility of holding the trial in the absence of the defendant who had elected an address for service with the public defender's office at the time of identification by the judicial police and was then no longer to be found.
4.1. In this regard, he observes that according to a first orientation, with reference to similar situations, knowledge of the existence of criminal proceedings cannot be inferred from an election of domicile made at the time of identification by the judicial police before the formal establishment of the proceedings with entry in the register pursuant to Article 335 of the code of criminal procedure. According to a different orientation, on the other hand, service on the defendant at the domicile of the public defender indicated in the course of the preliminary investigation is valid, by reason of the presumption of knowledge of the proceedings laid down in Article 420-bis, paragraph 2, of the Code of Criminal Procedure, which can be overcome only if it transpires, pursuant to Article 420-ter, paragraph 1, of the Code of Criminal Procedure, that the absence was caused by absolute impossibility of appearing due to unforeseeable circumstances, force majeure or other legitimate impediment.
4.2. The referring section also considers that the DMI is also in a state of absconding, a situation in which "there is inherent, pursuant to Article 196 of the Code of Criminal Procedure, the assessment of the voluntary nature of the absconding by the suspect, who is wanted, from pre-trial detention".
5. By decree of 21 March 2019, the Deputy President assigned the appeal to the United Sections, setting it for hearing at today's hearing.
6. The Attorney General at this Court concluded by requesting the dismissal of the appeal on the ground that the judgment under appeal correctly excluded that the defendant, under the given conditions, had knowledge of the vocatio in ius.
IN LAW
1. The question of law referred to the United Sections is as follows:
"For the purposes of the pronouncement of the declaration of absence referred to in Article 420-bis of the Code of Criminal Procedure, does the defendant's election of domicile with the public defender appointed by him constitute a suitable prerequisite in itself or, where it is not, can it in any case become one in the presence of other elements indicating with certainty knowledge of the proceedings or the voluntary evasion of such knowledge of the proceedings or of the acts of the proceedings".
1.1. The issue concerns an election of domicile made at a time prior to the introduction, by Article 1 of Law No. 103 of 23 June 2017, of paragraph 4-bis of Article 162 of the Code of Criminal Procedure. This rule provides that 'The election of domicile with the public defender shall not take effect unless the prosecuting authority receives, together with the declaration of election, the consent of the domicile lawyer'. The decision on the specific issue is therefore only relevant to the past.
2. The factual issues of the matter are clear: a foreigner non-resident in Italy (alleged) 'scafista', dedicated to the transport of illegal immigrants, was identified, immediately after his arrival in Italy on a 'barge', for Ismail Dawish Mhaamed, being charged with the crime of procuring the illegal entry of non-EU citizens. During the first acts of the prosecution, requested to declare a domicile in Italy, he elected him with the public defender appointed in that context. After that, he became untraceable and, among other things, also formally a fugitive because in the meantime a coercive measure was issued against him, which included the further crime of association.
2.1. The contrast concerns the possibility, in the light of the legislation in force, that in such a situation it can reasonably be considered that Ismail Dawish Mhaamed was aware first of the criminal proceedings under investigation and, then and consequently, of the trial, a necessary condition for proceeding in his absence pursuant to Article 420-bis of the Code of Criminal Procedure; as well as, alternatively, the possibility of considering that he wanted to evade knowledge of the acts of the proceedings under way, for that other reason being allowed to proceed to trial in his absence.
3. Limiting the assessment to the judgments following the introduction of the trial in absence by Law no. 67 of 28 April 2014, first of all the decisions that have held that in similar situations it is not possible to consider that the election of domicile with the public defender is relevant for the purposes indicated:
- Sect. 2, no. 9441 of 24/1/2017, Seli, Rv. 269221-01 considers that an actual knowledge of the proceedings for the purposes of the trial in absentia cannot be made to coincide with the cognizance of an act put in place on the initiative of the judicial police before the commencement of the proceedings, a moment that coincides with the entry of the name of the person under investigation in the register pursuant to Article 335 of the Criminal Procedure Code. These conclusions are also reached on the basis of consolidated rules established in the post-2005 legislation on in absentia, rules that resolve problems common to the two systems.
- Sect. 1, no. 16416 of 2/3/2017, Somai, Rv. 269843-01 reaches the same conclusions with reference to the case of a subject who, accused of having violated a deportation decree, had been subjected to photo-signal surveys during which he had refused to declare or elect a domicile. In the present case, it was considered that knowledge of such acts of the police did not prove knowledge of the proceedings, which are initiated only from the moment the accused's name is entered in the register pursuant to Article 335 of the Code of Criminal Procedure.
3.1. In addition to these decisions there are others that, although they do not concern similar situations, will be useful for the assessments of the merits of this guideline and, in any case, are relevant because they are contrary to the rules affirmed by the second guideline on the subject of presumptions of knowledge:
- Sez. 6, No. 43140 of 19/9/2019, Shimi Limam, Rv. 277210 - 01, on the subject of rescission of a judgment, considers that the knowledge of the trial that precludes rescission "must refer to the accusation contained in a formal measure of vocatio in iudicium", excluding that the knowledge of the notice of closure of investigations is sufficient. At the same time, the decision recalls that "the system of legal knowledge based on regular notifications does not affect the question of actual knowledge of the proceedings".
- Sect. 5, No. 10443 of 7/2/2019, Nguia, Rv. 276124 - 01, in the different matter of the return in the time limit to file an opposition against the criminal decree of conviction, notes the unsuitability of the service of the act at the domiciliary public defender's office "unless [... ] it is not shown that the public defender was able to trace his client and establish an effective professional relationship with him", confirming a constant interpretation with reference to actual knowledge of the criminal decree (in identical terms: Sez. 1, no. 6479 of 11/10/2017, dep. 2018, Tulan, Rv. 272401 - 01; Sect. 4, no. 991 of 18/07/2013, dep. 2014, Auci, Rv. 257901; Sect. 1, no. 8225 of 10/02/2010, Zamfir, Rv. 246630).
3.2. Other and more numerous decisions, on the other hand, hold that one may proceed in absentia against a person who has elected an address for service with a public defender. In this sense:
- Sez. 5, no. 40848 of 13/7/2017, Fanici and others, Rv. 271015-01 which affirms this with reference to an election of domicile made in the course of the first activities of the public prosecutor's office, arguing that Article 420-bis of the Code of Criminal Procedure has introduced cases of presumption of knowledge of the proceedings (which it considers typical situations such "as to lead the legislator himself to presume that the defendant had with certainty knowledge of the proceedings or voluntarily evaded such knowledge").
- Sect. 4, no. 49916 of 16/10/2018, F., Rv. 273999, according to which the election of domicile gives rise to a presumption of knowledge of the proceedings that legitimises the judge to proceed in the absence of the defendant; the latter, therefore, bears the burden of taking steps to keep in touch with his defence counsel on the development of the proceedings.
- Sez. 2, no. 25996 of 23/05/2018, Geusa, Rv. 272987 excludes that the rescission of the judgement may take place if the defendant had knowledge of the proceedings during the investigation phase; it comes to this conclusion on the assumption that art. 420-bis, para. 2, Code of Criminal Procedure introduces absolute presumptions of knowledge of the proceedings.
In the same terms, Sez. 2, Judgment no. 39158 of 10/09/2019 Hafid Aiumin Rv. 277100; Sez. 4 -, Judgment no. 32065 of 07/05/2019 Cc. Bianchi Rv. 276707 - 01; Sec. 5, No. 36855 of 07/07/2016, Baron, Rv. 268322; Sec. 5, No. 12445 of 13/11/2015 (dep. 2016), Degasperi, Rv. 266368-01; Sec. 2, No. 14787 of 25/1/2017, Xhami, Rv. 269554-01; Sec. 2, No. 33574 of 14/07/2016 - dep. 01/08/2016, 4 Suso, Rv. 267499.
3.3. The recurring argument, expressed in particular when deciding on the request for rescission of the judgment, is precisely the adequacy of the election of domicile with the defence counsel, even at the initial stage of the proceedings. Such a statement allows the party to be considered to be aware of the procedural development on the basis of the mechanism of presumptions and the duty of diligence in keeping informed (as stated in the Xhami judgment, even the mere arrest in flagrante delicto "generates a duty of diligence that is also expressed in the duty to maintain contact with the defence counsel (whether of trust or ex officio)".
4. The contrast, in the final analysis, relates to a broader issue than that which is the immediate subject of the question, involving the interpretation of the conditions, indicated in Article 420-bis, paragraph 2, of the Code of Criminal Procedure (declaration or election of domicile, prior application of precautionary or precautionary measures, appointment of a defence counsel), which allow the trial in absentia even when the defendant has not been personally notified of the hearing.
The decisions of the second line of approach, in fact, are all united by the view that the legislation on the trial in absentia has introduced presumptions for these cases only in which, therefore, it is permitted to proceed on the basis of the mere formal regularity of the notification of the notice of hearing, in whatever form it was made, even as an unavailable person.
5. The subject proposed, therefore, involves important issues that make it necessary to preface the regulatory evolution on the subject of the guarantees of the effective participation of the defendant in the criminal trial, with the necessary synthesis with respect to the breadth of the subject and taking into account what is relevant to the decision.
Part of what is to be set out herein takes up the contents of the judgment of these Sez. U, no. 28912 of 28/02/2019, Innaro, rv. 27571601, which dealt with the issue of the effective knowledge of the proceedings by the defendant in absentia for the purposes of the return within the time limit to appeal according to the discipline of art. 175, paragraph 2, of the Code of Criminal Procedure in force after the 2005 reform and until the introduction of the discipline of absence. There it was observed that the general principles introduced in 2005 were substantially the same as those underlying the arrangement following the reform of the proceedings in absentia; for this reason the judgment incidentally assessed certain profiles of that later discipline.
5.1. The Italian criminal trial system until the last years of the previous Code of Criminal Procedure favoured the system of legal knowledge of trial documents based on the formal regularity of the notifications. The trial could be conducted in absentia even in cases where the service of the document instituting the proceedings had been effected in a manner that did not guarantee actual knowledge. This applied both in cases of situations where it was impossible to trace the defendant due to his conscious choices (non-communicated changed domicile etc., absconding) and in cases of presumed absolute lack of knowledge of the proceedings.
The fact of the defendant's actual knowledge or lack of knowledge of the trial was essentially irrelevant, except for remedial remedies (i.e. the late appeal against the first instance judgment) conditional on the defendant/convicted person proving the conditions that had made it impossible for him to participate/knowledge of the proceedings.
The procedural system thus devised, in the face of the sufficiency of even an obvious mere fictio of knowledge of the proceedings, guaranteed the possibility of defence with the system of ex officio defence. The latter, however, was structurally unsuitable to guarantee the certainty of conscious participation in the trial and to ensure a full defence, as, moreover, is demonstrated by the same subsequent evolution, both legislative and jurisprudential, which has led to differentiating the defendant's sense of participation in the trial depending on whether he is provided with a defence counsel of trust or of his own motion; a subject that, moreover, is underlying the question referred to this panel.
5.2. The first occasion for serious reform of such a system, which until then had passed substantially unscathed by constitutionality checks, was the decision of the European Court of Human Rights, 12 February 1985, Colozza v. Italy, which condemned Italy precisely because of the inadequacy of the rules of legal knowledge with respect to the requirements of a fair trial.
This decision concerned the case of a person who could not be found, and who was also a fugitive, whose 'legal' knowledge had been guaranteed by the filing of documents with the clerk's office and the service on his public defender. He had been denied the right to a belated appeal precisely because of the formal regularity of the notifications based on (deemed) exhaustive searches.
Evaluating the case at hand, the ECHR stated with arguments of general scope that a system of mere legal knowledge conflicts with the principles of due process outlined in the European Convention on Human Rights; under the given conditions, it was not at all possible to determine whether the defendant could have voluntarily decided not to participate in the trial and that in any case, since the Colozza had belatedly acquired knowledge of the trial, he should be granted the possibility of requesting a new assessment of the facts. The essential rule identified in the Convention, therefore, is that the burden of proof cannot be placed on the applicant to prove that he did not intend to evade justice or that he was conditioned by a situation of force majeure.
The Court, in the context of these considerations, also stated in express terms how it was entirely irrelevant that he had also been declared a fugitive, since this condition in any event did not presuppose actual proof that Colozza was aware of the proceedings.
5.3. This decision had a direct bearing on the elaboration of the rules on the subject of contumacy, unavailability and remittance in terms of the Code of Criminal Procedure of 1989, brought forward due to the obvious urgency of adaptation by Law 22 of 1988 that amended the previous code: the legislator introduced the obligation of postponement due to legitimate impediment of the defendant or the defence counsel and overcame the rigour of the legal presumption of knowledge of the notification system. In fact, Article 486 of the 1989 Code (which remained identical in content until 2005) provided that the summons had to be renewed, even in the case of a regular service, "when it is proved or appears probable that the defendant did not have actual knowledge of it, provided that the fact is not due to his fault and outside the cases of service by delivery to the defence counsel pursuant to Articles 159, 161(4) and 169".
This provision was clearly focused on the defendant's actual knowledge of the proceedings (to which it equated non-knowledge through "fault") such that the fact that the service was in full compliance with the law was irrelevant.
There remained, however, an area of prevalence of the legal presumption of knowledge of the proceedings in the case of service by delivery of the document to the defendant's lawyer; since there was no differentiation, this hypothesis also included the public defender without exception - the clarification is relevant since the subsequent rules have emphasised the relationship with the public defender alone, excluding the simple fictio according to which the presence of the public defender can always guarantee the effective participation of the party in the proceedings.
5.4. To the provisions on default, with the possibility of enhancing the concrete fact of "non-knowledge" even in the face of a fully regular service, the 1989 code added the provision of Article 175 of the Code of Criminal Procedure which, with the return within the time limit to appeal against the judgment delivered in absentia for the defendant "who proves that he did not have actual knowledge of the measure, provided that the appeal has not already been lodged by the defence counsel and the fact is not due to his fault or, when the judgment in absentia has been served by delivery to the defence counsel in the cases provided for in Articles 159, 161(4) and 169, the defendant did not voluntarily evade knowledge of the procedural documents", made it possible to prove non-knowledge of the judgment, even in the case of service on the defendant's lawyer (and ignorance through fault as well as voluntary evasion of knowledge was equated with actual knowledge).
The remedial protection offered to the sentenced person concerned the possibility of appealing against the judgment but not its annulment: as clarified by the first decisions, Article 487 of the Code of Criminal Procedure provided for the nullity of the declaration of default in the event of proof of lack of knowledge of the summons prior to the judgment, while the same declaration remained valid in the event of proof acquired after its pronouncement (for all see: Sez. 6, no. 4617 of 01/02/1994 Rv. 198282 "On the subject of the defendant being in absentia, it follows from the provisions of Article 487 of the Code of Criminal Procedure that if the evidence of the blameless lack of knowledge of the summons was acquired after the first instance ruling was issued, this ruling is valid and the defendant is left with the possibility of requesting either restitution within the term pursuant to Article 175 of the Code of Criminal Procedure or the renewal of the appeal hearing pursuant to Article 487(4) and (5) of the same code").
The provision obviously had wide scope of interpretation due to the reference to general notions of "guilt" and "wilful evasion".
5.5. In summary, therefore
- it was excluded that the legal presumption of knowledge in the event of proper service had (always) absolute value to the detriment of actual knowledge;
- the burden of proof of "non-knowledge" was on the party concerned;
- ignorance of the process through negligence (e.g. by forgetting to communicate a new domicile) and wilful evasion of knowledge of the procedural documents (e.g. by communicating a false address) were substantially equated.
The initial provision of the new code remained unchanged in substance until 2005 (except for the relocation of the rules on contumacy and impediment to appear after Article 420 of the Code of Criminal Procedure, having been made applicable from the preliminary hearing).
6. This system was changed because, even with these adjustments, it was found to be inadequate to the principles of a fair trial in the wake of two subsequent decisions of the European Court of Human Rights, the second of which expressly conditioned the further development of the rules.
6.1. The first is the decision of the European Court of Human Rights, 18 May 2004, Somogyi v. Italy: this case concerned a person sentenced in absentia who had been refused an extension of time and a late appeal on the ground that his plea of forgery of his signature on the receipt of a summons was unfounded. The ECHR stated on this occasion that "while proceedings that take place in the absence of the accused are not in themselves incompatible with Article 6 of the Convention, the fact remains that when an individual convicted in absentia cannot subsequently have a judicial authority decide afresh, after hearing him, on the basis of the charge in fact as well as in law, while it is not established beyond doubt that he has waived his right to appear and to defend himself, it constitutes a refusal to do justice [. ...] In particular, it is necessary for the resources offered by domestic law to be effective if the accused has neither waived his right to appear and defend himself nor had the intention of evading justice'.
The solution was, however, essentially based on the presumed nullity of the notification, the Court having found the factual finding (the falsity of the signature) on the circumstances put forward by the defence to be inadequate.
6.2. The most decisive decision was the second one, EDU Court, 10 November 2004, Sejdovic v. Italy.
As in the Colozza case, this was a case of a person under investigation for murder, immediately unaccounted for and a fugitive following the adoption of a custodial order. The trial against him had taken place on the basis of notifications that were certainly regular according to domestic law, but not such as to demonstrate any actual knowledge of the proceedings, in the presence of the public defender who did not appeal the conviction decision. Arrested abroad, the Federal Republic of Germany refused his extradition on the grounds that in Italy he was not guaranteed a retrial or at least an appeal against the first-instance decision; the competent judge, in fact, noted that the Italian procedural system did not recognise an unconditional right to a retrial in favour of the person in absentia; instead, the person concerned would first have had to prove that there had been an error in considering his absconding.
The European Court of Human Rights therefore took note of the current interpretation according to which, in order to deny an appeal against a judgment rendered in absentia and served on the defendant's lawyer, there must be serious proof of the defendant's specific intention to abscond. Such a rule, however, was not sufficient to justify the irrevocability of the decision because according to the Court, in any case "there is a denial of justice when an individual, convicted" in absentia", cannot subsequently have a court rule again [...] on the merits of the charge, in fact and in law, where it is not established beyond doubt that he has waived his right to appear and defend himself".
The Court, noting that the mechanism of restitution within the time limit provided for by the domestic legislation did not appear to adequately guarantee the defaulting defendant, concluded that "the violation [... ] is the consequence of a structural problem linked to the malfunctioning of domestic legislation and practices caused by the absence of an effective mechanism aimed at putting in place the right of persons sentenced in absentia - who are not effectively informed of the charges against them and who have not unequivocally waived their right to appear - to have a court rule again [...] the Italian State must guarantee, by means of appropriate measures, the implementation of the right in question".
In this way, the Court affirmed the existence
- first, of an obligation, deriving from the Convention, to proceed only against those who have actual knowledge of the proceedings;
- secondly, of an obligation to provide for a restorative mechanism consisting in ensuring that the person adjudicated in absentia has a new jurisdiction on the merits.
6.3. The regulatory adjustment was immediate as Decree-Law No 17 of 2005, converted with amendments by Law No 60 of 2005, made the minimum changes that appeared necessary.
In particular, Article 175 of the Code of Criminal Procedure was amended by adopting the wording "If a default judgment or decree of conviction has been pronounced, the defendant shall be returned, at his request, within the time limit for lodging an appeal or opposition, unless he has had actual knowledge of the proceedings or of the measure and has voluntarily waived his right to appear or to lodge an appeal or opposition. To this end, the Judicial Authority shall carry out any necessary verification": in other words, the contumacious person was unconditionally guaranteed a new trial unless the prosecution proves that he had actual knowledge of the proceedings.
The decree-law in its preamble specified the reason for the urgent adoption in the need to "guarantee the unconditional right to appeal against contumacious sentences and decrees of conviction by convicted persons in cases where they have not been effectively informed of the existence of proceedings against them, as expressly requested of the Italian State by the judgment of 10 November 2004, pronounced on appeal no. 56581/00 of the European Court of Human Rights" and to "harmonise the domestic legal system with the new system of surrender between the States of the European Union, which allows [...] the refusal to execute the European arrest warrant issued on the basis of a conviction in absentia where the possibility of a retrial is not guaranteed, provided the conditions are met".
6.4. This preamble was thus the key to reading the reformed Article 175 of the Code of Criminal Procedure: the person convicted in absentia, if not "actually" informed of the "proceedings", had an unconditional right to a retrial.
It was clear, therefore, the innovation in the sense of the absolute prevalence of the given
of actual knowledge over the formal fact of the regularity of service.
Moreover, the concomitant amendment of the system of notification to the defence counsel with the introduction of Article 157, paragraph 8-bis, of the Criminal Procedure Code codified
also codified the principle of clear differentiation between defence of trust and defence of office, since only the former, as a rule, guarantees the defendant adequate information on the progress of the trial.
The other, and important, reason for the substantial revision of the trial in absentia indicated in the preamble was the need to adapt our procedural model to make the European Arrest Warrant operational: in fact, Council Framework Decision no. 2002/584/JHA of 13 June 2002 on the European Arrest Warrant provided that the executing law of the Member State could exclude the surrender of the person sentenced on the basis of a decision in absentia when "the person concerned has not been summoned in person or otherwise informed of the date and place of the hearing ..." or an unconditional right to a retrial was not granted.
6.5. Law No 69 of 22 April 2005 - adopted on the same day as the conversion of Decree-Law No 17 of 2005 - introduced the discipline of the European arrest warrant, exercising the aforementioned right. In fact, it provided, among the 'Guarantees required of the issuing Member State', that the execution of the European arrest warrant based on a decision issued in absentia was subject to the condition that "if the European arrest warrant has been issued for the purpose of executing a custodial sentence or a detention order imposed by a decision rendered in absentia, and if the person concerned has not been summoned in person or otherwise informed of the date and place of the hearing which led to the decision rendered in absentia surrender shall be subject to the condition that the issuing judicial authority gives assurances deemed sufficient to guarantee the persons subject to the European arrest warrant the possibility of requesting a retrial in the issuing Member State and of being present at the trial" (this provision was later strengthened by D. Legislative Decree No. 31 of 15 February 2016, which changed the text to "the person was summoned in a timely manner and in person, being unequivocally informed of the date and place of the trial which led to the decision rendered in absentia and of the fact that such a decision could also have been taken in absentia ...").
Thus, the rule is that surrender by the Italian State is subject to the condition that the subject to be surrendered has been expressly and personally informed of the trial and represented by a defence counsel or has already been given the entirely unconditional right (or will be given after the surrender) to a new trial or appeal with full review of the merits and the right to the attachment of new evidence.
It is easy to affirm that, also on the basis of what the aforementioned decree-law stated in its preamble, these rules provided for in the matter of the European Arrest Warrant are general principles of the domestic legal system, minimum rules guaranteeing participation in the trial.
6.6. This first step towards the rule of the necessary demonstration of the defendant's knowledge of the trial, achieved with the "restitutory" rule of the new trial, still saw a limit to the actual possibilities of restitution under the initial conditions.
First of all, in fact, the contumacious person for whom the notifications had been formally regular, was allowed to lodge an appeal and not the repetition of the trial at first instance, it being superfluous to explain how this represented a limitation to the actual full articulation of the right to defend oneself. Moreover, Article 603(4) of the Code of Criminal Procedure was not adequate, on the subject of the renewal of the preliminary investigation, whereby the appeal was only on file unless the defendant in absentia proved " ..... that he was unable to appear owing to unforeseeable circumstances or force majeure or because he had no knowledge of the summons" (it should be noted, however, that various decisions of this Court have held that in the event of the return of the time limit "The defendant sentenced in absentia [. ... has the right to obtain on appeal the renewal of the pre-trial investigation, this being the only interpretation of articles 175 and 603 of the Code of Criminal Procedure that complies with articles 24 and 111 of the Constitution, as well as Article 6 of the European Convention on Human Rights", for all see Sec. 2, no. 51041 of 9/11/2016, Rv. 268944 - 01).
In addition, the possibility of an appeal for the contumacious person who belatedly discovered that he had been tried was precluded in the event that the appeal was proposed by the public defender, with all the limits of the lack of agreement on the line of defence with the person concerned; with I. no. 479 of 1999, in fact, the limit for the defender to propose an appeal in favour of the contumacious person was removed.
This last consequence, however, was resolved by the declaration of partial constitutional illegitimacy of Article 175(2) of the Code of Criminal Procedure by judgment Corte Cost, no. 317 of 2009, which recognised in favour of the "unaware" contumacious person the right to a new appeal even if it had already been lodged by the defence counsel (see Sect. F, no. 3144 of 04/09/2014 - dep. 22/01/2015, Tripodo, Rv. 26204001, which clarifies how the reference is to the defence counsel of the office, assuming that in the event of an appeal by the defence counsel of trust the defendant has knowledge of the proceedings). The reason for the decision was precisely the need to remove any impediment to the full right of the defendant in default to a retrial, such as to render the principle of the uniqueness of remedies recessive in such a case.
6.7. In short, the new rules on restitution in terms introduced
- the unconditional right to restitution within the time limit for contesting the judgment given in absentia
- the possibility of denying it only in the event of positive proof of "actual" knowledge of the proceedings or of the measure.
Thus, there was a rebuttable presumption in favour of the defendant in absentia that took precedence over the mere formal fact of the regularity of service.
Clearly, the principle of legal knowledge was superseded; at most the manner in which service was effected could be assessed, in the specific case, among the factual elements that could be used to prove actual knowledge of the proceedings/measure or the intention to evade it.
6.8. In any case, the rules of the trial in absentia remained unaffected: regular service allowed for the commencement of the trial, without prejudice to the right of the person in absentia, under the given conditions, to appeal against the conviction, which was in any case valid in itself.
The European Court of Human Rights, 25 November 2008, Cat Berro v. Italy, ruled on the new system of restitution within the time limit, stating that the 2005 reform of the Italian legal system had resolved the critical points of the previous provision, and was therefore suitable for protecting the defence needs of the person convicted in absentia: above all, it considered adequate the possibility given to the person in absentia to obtain a new trial on the merits "regardless".
6.9. Before considering the current rules, mention should be made of Directive 2016/343 of the European Parliament and of the Council of 9 March 2016 "on the strengthening [...] of the right to be present at the trial in criminal proceedings" with which Member States had to comply by 10 April 2018.
The Directive provides for common minimum standards by stating, in the preamble, that trial in absence is permitted "where the suspected or accused person has been informed in good time of the trial [...] informed of the trial should be understood to mean that the person is summoned in person or is informed officially by other means of the date and place fixed for the trial ..." and, in Articles 8 and 9, that "a condition for the trial in absentia" is that "the suspect or accused person shall be informed in an adequate time of the trial and of the consequences of not appearing" and that, if he has been unavailable and, if permitted by the individual Member State, proceeded in absentia, "the right to a retrial or other legal remedy allowing the merits of the case, including the consideration of new evidence, shall be unconditionally recognised".
7. This led to the reform set out in Law No. 67 of 28 April 2014 whereby, in declared continuity with the introduction of greater guarantees of the effectiveness of participation in the trial, the trial in absentia was definitively superseded: in accordance with the traditional principle of the domestic legal system that also recognises the full right not to participate in the trial, the trial in the "voluntary" absence of the defendant was introduced.
In general terms, the model is simple and clear: in accordance with the general principles already introduced in 2005, the defendant must be directly and personally brought to the notice of the vocatio in ius and it remains his or her right not to participate in the trial. Only in that case, the trial takes place in his absence, being represented by his defence counsel.
If, on the other hand, the certainty of the knowledge of the summons is not acquired, the trial will be stayed. This is the relevant point of difference with respect to the trial in absentia, which took place in any case, on the sole basis of the formally regular service, the unaware defendant being granted only the right to appeal.
7.1. In the new system of absentia, the "remedial" systems also change accordingly: since the prerequisite is that one has proceeded with the substantial certainty that the defendant was aware of the trial, these systems no longer provide for the automaticity of the new trial in favour of the defendant in absentia with the mechanism of the unconditional restitution in terms pursuant to art. 175, para. 2 of the Code of Criminal Procedure and, instead, require the ascertainment of extraordinary events that prevented participation in the trial. In the event that the impossibility of attending the trial is proved, whether the trial is still in progress or exhausted, it in any case restarts (almost) from the beginning with the right for the party to obtain the full repetition of all the procedural activities relevant to its defence (i.e. the gathering of evidence and the use of the time limit for requesting alternative rites).
7.2. To an essentially linear system in which the judge proceeds insofar as he has proof that the defendant who did not appear at the hearing did so of his own free will, knowing the content of the charges as well as the date and place of the trial, two hypotheses are added, however, aimed at preventing "false unavailability" and "facilitating" for the judge the ascertainment of knowledge of the vocatio in ius:
- situations are provided for which, with a view to simplifying the ascertainment of the 'knowledge' of the absence, allow it to be considered even without personal notice to the defendant
- the voluntary avoidance of knowledge of the content of the proceedings and of the time and place of their setting is equated with knowledge of the proceedings or of their acts.
7.3. It is anticipated that many of the difficulties in reading these provisions derive not so much, and not only, from the apparent vagueness of the modalities for facilitating the ascertainment of the voluntary nature of the absence, but to a large extent also from the assumption from which the interpretation of the provisions starts:
- if one starts from the assumption of discontinuity in the new system of trial in absentia with respect to the 'system that mainly valued the formal regularity of the notifications, and therefore that one should only proceed in the case of proof of the defendant's full awareness, following essentially straightforward statements of the EDU Court in the decisions that have concerned our system (see, e.g., points 87 and 88 of the Sejdovic judgment), the 'indicia of knowledge' (appointment of a defence counsel, election of domicile, application of precautionary measures) of which we shall speak have a given interpretation.
- If, on the other hand, one starts by seeking continuity with the tradition of the legal system of notifications (which, moreover, has remained virtually unchanged in the text, which still provides that a document may be posted at the municipal house and brought to "personal" knowledge by means of a registered letter that has remained lying at a post office because it has never been collected) and with the system of default and restitution within the pre-2005 time limit, the same provisions that would like to simplify the identification of cases offering indirect proof of actual knowledge become instead (or revert to being) insuperable presumptions.
8. It is therefore necessary to analyse in detail the supporting rules of the new system.
8.1. First of all, there is Article 420-bis of the Code of Criminal Procedure, "Absence of the accused", which in its first paragraph provides that one proceeds in absence if there has been an express waiver on the part of the accused and, in its second paragraph, provides for the case in which one proceeds in absence even if there has been no express manifestation on the part of the accused: "the judge shall also proceed in the absence of the defendant who in the course of the proceedings has declared or elected domicile, or has been arrested, detained or subjected to a precautionary measure, or has appointed a defence counsel, as well as in the case where the absent defendant has personally received the notification of the hearing or it is in any case certain that he is aware of the proceedings or has voluntarily withdrawn from knowledge of the proceedings or acts thereof".
This provision is to be linked to Art. 420-quater of the Code of Criminal Procedure, "Suspension of the trial due to the absence of the defendant", according to which, if the conditions of Art. 420-bis of the Code of Criminal Procedure are not met, the court shall adjourn the trial, ".... the judge adjourns the hearing and orders that the notice be served on the defendant personally ...": this provision is particularly useful for understanding that all the aforementioned conditions for proceeding in absence pursuant to Article 420-bis of the Code of Criminal Procedure correspond to a situation of full personal knowledge (or proven refusal) of the summons.
8.2. The other rules concerning non-attendance and the restoration of the initial conditions in the event of a late establishment of unconscious absence are also based on the assumption that the judge proceeded with the certainty that the defendant was aware of the hearing.
Their content is recalled:
The same Article 420-bis of the Code of Criminal Procedure in its fourth paragraph provides for the possibility of the defendant appearing later. In addition to providing for the case of a conscious choice (of a person who had initially decided not to attend but then decided otherwise), it hypothesises the case in which the defendant provides "proof that the absence was due to an unconscionable lack of knowledge of the trial" or in any case to the "absolute impossibility of appearing due to unforeseeable circumstances, force majeure or other legitimate impediment". In such a situation, the remedial (or, better, "restorative") mechanism is activated: the defendant may formulate investigative requests as well as request the renewal of evidence already taken. If, then, (Article 489(2) of the Code of Criminal Procedure) these same reasons prevented him from participating in the preliminary hearing, he is put back on time for the alternative rites.
For the appeal stage, Article 604, paragraph 5- bis, provides that "if there is evidence that the proceedings should have been conducted pursuant to Article 420 - ter or Article 420 - quater" the first instance judgment is set aside with referral of the acts back to the court of first instance. The rule is the same in the case where the defendant proves that the absence was due to culpable ignorance of the first instance proceedings.
8.3. Lastly, there is the "restorative" rule in the case of a case in which the defendant was absent until the final conviction, i.e. the rescission of the judgment (now provided for by Article 629-bis of the Code of Criminal Procedure, originally governed by Article 625-ter of the Code of Criminal Procedure, with identical content for the part of interest here): the person convicted in absence may obtain the rescission of the judgment with transmission of the acts to the trial judge of first instance "if he proves that the absence was due to an innocent lack of knowledge of the trial".
With the new restorative rules, however, the provision of Article 175(2) of the Code of Criminal Procedure, which allowed an unconditional right to appeal against a judgment delivered in absentia, has disappeared.
8.4. Into the apparent linearity of this system come those particular "indices of knowledge" of the trial that are:
- the declaration or election of domicile
- the application of precautionary measures leading up to the validation hearing or the submission to a precautionary measure;
- the appointment of a defence counsel.
Their interpretation is particularly relevant because if they represent 'presumptions' in the fullest sense, as one reads in some of the decisions that gave rise to the conflict, one would have to say that the system has regressed to the pre-1988 situation.
8.5. In the light of the interpretation of these clauses as presumptions, it would have to be said that once it has become impossible to serve at the declared or elected domicile, once the defendant who was subjected to a precautionary or precautionary measure has not been found, once the defence counsel has been withdrawn, the statutory system of service applies in full, even if actual knowledge on the part of the addressee is not proved.
First of all, the regression would be obvious compared to the system outlined in 2005: on the one hand, one would proceed only because one had declared domicile at an early stage of the proceedings (the argument of the appeal of the Attorney General of Genoa is that an election of domicile with the public defender's office made at a time of immediacy with respect to the first activity of the judicial police, with a generic prospect of future proceedings for only one of the two most serious offences then the subject of the trial, is sufficient); on the other hand, any remedial effect could only be achieved upon positive proof, against the convicted person, of the "blamelessness" of the ignorance of the trial. It would certainly not be sufficient for the defendant to say that he had not maintained relations with the domiciliary (and the public defender) without telling the prosecuting authority.
With the application of the provisions introduced in 2005, on the other hand, the contumacious person would have had a completely unconditional right to challenge the judgment with the new assessment of the merits, subject to proof to the contrary, to be borne by the prosecution, not simply of his lack of diligence but of his "actual knowledge" of the vocatio in ius (as clarified by the aforementioned Innaro judgment of these SS.UU.).
8.6. The regression, however, would go even further than the 2005 reform inasmuch as the current system, read in terms of (re)introducing presumptions of knowledge of the proceedings in the face of regular notifications, does not even provide for the possibility that the judge assesses "it is probable that the defendant did not have actual knowledge" as the 1989 Code provided for in order to correct the system in the face of the shortcomings noted by the judgment of the EDU Court Colozza.
It should be noted, moreover, that arts. 420-bis(4) and 629-bis of the Code of Criminal Procedure do not even assume a possible error in the declaration of absence, as if it always had to be based on full certainty.
If, therefore, one were in the presence of presumptions, they would have to be considered literal absolutes: the party could never limit itself to showing that the notification, formally regular, had no effect but would have to prove that a further event precluded it from knowledge.
8.7. What has already been said suffices to state that it is in no way tenable that the indices of Art. 420-bis of the Code of Criminal Procedure are forms of presumptions surreptitiously reintroduced by the very legislation that was intended to definitively overcome the system of the trial in absentia and the extreme enhancement of the legal system of service. Not only, in fact, is there no correspondence with the text of the provision, but such an interpretation could never be allowed because it is in breach of the conventional provisions as interpreted by the ECtHR.
In the following exposition it will be explained how these are not even situations that, in terms of automaticity, could represent cases of "voluntary evasion" of the knowledge of the trial.
9. Having cleared the field of the hypothesis that we are in the presence of a new system of legal presumptions, and for this reason alone the second of the case-law guidelines that have given rise to the conflict (which, we repeat, is essentially based on the thesis that we are in the presence of presumptions) cannot be accepted, we can now assess the correct interpretation of the provisions under consideration for the purposes of answering the question aimed at a particular situation and, above all, resolving the broader interpretative issues underlying the conflict complained of.
10. A preliminary remark should be made as to the irrelevance of the dichotomy proceedings/proceedings and of the condition of absconding for the issues at stake.
In various decisions on the subject, it is considered that the rules under consideration refer to knowledge of the "proceedings" and not of the "trial"; it is assumed, therefore, according to the notorious (tendential) difference between the two terms, that it is clear that the rules refer to knowledge also of acts referring to the investigation phase (debating whether before or after the registration ex art. 335 of the Code of Criminal Procedure) as reasons for presuming knowledge of the trial or, in any case, for activating obligations of diligence in "keeping informed" from the first contact with the judicial police.
Such an easy literal argument is, however, irrelevant in the given matter. There are, in fact, clear textual confirmations that also in this area the legislative terminology makes a general and promiscuous use of the term "proceedings" with which it does not at all intend to expressly indicate a broader notion than that of "trial".
It reads:
- In the former art. 175 which, in regulating the reparatory system for the trial in absentia, referred in the third paragraph to "each level of the proceedings";
- In the transitional provision (Law No. 118 of 11 August 2014) which, in regulating the transition between trial in absentia and trial in absentia, refers to the "definition of the proceedings" with first instance device and the declaration of absentia in the "proceedings";
- in Art. 629 bis of the Code of Criminal Procedure which, on the subject of rescission of a judgment, uses the term "trial" in the first paragraph but, in the second paragraph, refers to this same phase by using the term "proceedings".
In the very matter of interest, therefore, the literal argument is entirely inconsistent.
10.1. It has been hypothesised, then, as indicated in the order of referral and as we read in some previous decisions, that the state of absconding is a condition entailing full awareness of the existence and content of the proceedings, on the basis of the normative wording of Article 296 of the Code of Criminal Procedure ("A fugitive is one who voluntarily absconds from custody ..."). Leaving aside any consideration of the effectiveness or fictio character of such knowledge, it should be recalled that the very decisions of the European Court of Human Rights that noted the inadequacy of domestic law with respect to supranational sources were made in the case of persons not only in absentia but also absconding. See, in particular, the judgment of the EDU Court, 5 September 2019, Rizzotto v. Italy, according to which "... the Court recalls that the waiver of the right to defend oneself cannot be inferred from the mere status of "fugitive", based on a presumption lacking a sufficient factual basis (Colozza v. Italy, 12 February 1985, § 28, Series A no. 89; Sejdovic v. Italy [GC], no. 56581/00, § 87, ECHR 2006 II). Moreover, before an accused can be considered to have implicitly waived, by his conduct, a right that is important from the point of view of Article 6 of the Convention, it is necessary to establish that he could reasonably have foreseen the consequences of the conduct in question'.
The issue, therefore, of the condition of absconding being declared without necessarily having a factual basis which means certainty of the pendency of the proceedings, must be considered resolved and will not be returned to. It must, of course, be borne in mind that this does not exclude the fact that specific circumstances connected with absconding (typically, the appointment of a defence counsel) may, in various ways, be relevant in concrete cases.
11. Developing, therefore, the themes already mentioned in the Innaro judgment of these United Sections, it is necessary to consider the scope, for the purposes of the knowledge of the trial, of the situation "of the defendant who in the course of the proceedings has declared or elected domicile or has been arrested, detained or subjected to a precautionary measure or has appointed a defence counsel".
The first observation is that these are situations that need to be characterised by effectiveness with respect to the manner in which they are realised. Reference is made to aspects such as the effectiveness of the choice of domicile, to allowing the precautionary measure the effective knowledge of the proceedings, to the realisation of the relationship with the trusted defence counsel who accepts the appointment.
11.1. The very situations that, on closer inspection, resolve the issue at stake today are a clear indication of this:
that the election of domicile must be "serious" and real, since a relationship between the subject and the place where the documents should be addressed must be appreciable, is apparent from the same legislative choice, subsequent to the matter under examination, which by Law No. 103 of 2017 inserted in Article 162 of the Code of Criminal Procedure the aforementioned paragraph 4-bis: "the election of domicile with the public defender does not take effect if the prosecuting authority does not receive, together with the declaration of election, the consent of the domiciliary defender"; the provision, therefore, substantially intended to minimise a typical sphere of possible 'careless' elections of domicile. This is certainly not the only possibility of indicating a de facto unsuitable domicile, but it is clear that the intention was to regulate a typical case, frequent in the context of relations with more or less precarious foreigners present or in transit in Italy, in which in a perhaps hasty manner one wished to solve the problem of the service of subsequent acts by accepting a prima facie indication that one was not aware of.
This is precisely the situation of the present trial in the incontrovertible reconstruction of the judges of the merits and of the appellant: it is reasonable to assume that the defendant, who had only been in Italy for four days, was not particularly aware of what the future consequences of electing domicile with the public defender with whom, at that time, he had no contact were.
11.2. This paragraph 4-bis, which is so peculiar in regulating one of the possible forms of election of an address for service that is de facto unsuitable, in reality presents itself as a provision of an interpretative nature, codifying an interpretation of the prevailing rules already affirmed by the Constitutional Court. 31/2017 which, when called upon to rule on the constitutionality of Articles 161 and 163 of the Code of Criminal Procedure "in the part in which they do not provide for personal service of the document instituting criminal proceedings, at least in the hypothesis of election of domicile with the public defender", in a situation overlapping with that of I stated:
"... the two defendants ... identified by the judicial police .... were invited to declare or elect an address for service pursuant to Article 161 of the Code of Criminal Procedure ... they elected their domicile with the public defender's office appointed by the prosecuting judicial police, given the lack of the appointment of a defence counsel.
Well, the meagreness of the factual elements provided prevents this Court from assessing whether, in the specific case, there was an effective establishment of a professional relationship between the lawyer domiciled with the defendant and, therefore, whether or not the conditions from which the existence of a relationship of information between the lawyer, albeit appointed ex officio, and the assisted person could be deduced were fulfilled'.
Evidence of such an effective relationship was therefore considered necessary "... to verify, in the present case, whether the defendants had, in fact, become aware of the vocatio in iudicium or whether, despite the "formally regular notifications" at the domiciliary, the defendants had no awareness of the commencement of the trial against them".
11.3. Beyond what is relevant to provide an answer in the concrete case of the trial in I, the certainty that derives from the shared interpretation of the Constitutional Court is that the indices of knowledge of Article 420-bis, paragraph 2 of the Code of Criminal Procedure, generically indicated in the provision, must be interpreted according to their function.
One thinks of the hypothesis of the subject arrested in flagrante delicto for any offence who manages to escape immediately after capture, even before the formalisation of the activity of the judicial police and, above all, the presentation to the judge. This is certainly not a situation that allows one to consider awareness of the trial, it being, we repeat again, excluded that the trial in absence is a form of sanction.
The same applies to the precautionary measure that remains unexecuted due to the suspect's unavailability.
The interpretation, on the other hand, must be that the provision refers to the case in which there is the regular completion of the precautionary or precautionary proceedings, which always provides for contact with the judge and the specific contestation of the charges.
Otherwise, the opposite of what the European Court of Human Rights has repeatedly said on the subject of absconding would be affirmed.
The appointment of a defence counsel must also be read in the sense of effectiveness: in order for it to have the significance of the provision, on the assumption of the regular information relationship between the defender and the assisted person, it must be understood as an accepted appointment.
12. These remarks already provide the solution to the specific question.
It has already been noted above that the second of the lines of interpretation in question cannot be accepted at all because it is based first of all on the erroneous assertion that Article 420-bis of the Code of Criminal Procedure reintroduced presumptions of knowledge of the vocatio in ius that are entirely abstract from actual knowledge. On the other hand, the first of the lines of interpretation must be held to be correct, bearing in mind, however, that in order to reach the same conclusions, more radical arguments as to the actuality of the special election of domicile with the public defender are valid.
In particular, it is sufficient to refer to what has been said by the Constitutional Court to the effect that an election of domicile with a public defender can be considered effective, for the purposes not only of the formal regularity of service but also of the certainty that the document thus served reaches the addressee, only when there is an effective connection between the person and the place elected. If there is no such connection, there is a case of 'unsuitable' domicile.
In accordance, therefore, with the decisions that have held an election of domicile made under the given conditions to be unsuitable, albeit with the different arguments set out above, the principle should be affirmed, applicable to situations prior to the introduction of the aforementioned rule in Article 162, paragraph 4-bis, of the Code of Criminal Procedure pursuant to Law No. 103 of 2017:
"The mere election of domicile with the public defender's office, by the suspect, is not in itself a suitable prerequisite for the declaration of absence referred to in Article 420-bis of the Code of Criminal Procedure, since the judge must in any case verify, even in the presence of other elements, that there has been an effective establishment of a professional relationship between the domiciliary lawyer and the suspect, such as to make him believe with certainty that the latter has knowledge of the proceedings or has voluntarily avoided knowledge of the proceedings themselves".
13. It is now appropriate to extend this Court's assessment to the overall scope of the hypotheses covered by Article 420-bis of the Code of Criminal Procedure in order to understand in what terms the realisation of the given situations, under conditions of effectiveness, allows the declaration of absence even if there has been no personal notification of the vocatio in ius to the defendant.
13.1. The overall context of the provision must be considered:
Article 420-bis, paragraph 2, of the Code of Criminal Procedure indicates the cases in which, on the obvious assumption of the regularity of the notifications, in the judge at the stage of the constitution of the parties, having verified the notices, may proceed with the trial considering that there is "voluntary" absence. The case of "avoidance of knowledge", which will be discussed at the end, is left out for now.
The basis of the system is that the party must be personally informed of the content of the charge and of the day and place of the hearing and, therefore, in necessary application of the principles recalled above, a trial in absence is only permissible when the certainty of knowledge on the part of the defendant has been achieved.
This, moreover, is the reason why the system, by introducing the rule of certainty of knowledge of the trial, excluded the "unconditional" right to a new trial on the merits in favour of the person tried in absence.
It should be noted, moreover, that Article 420-quater of the Code of Criminal Procedure provides that, when the judge has not achieved certainty of knowledge of the defendant's arraignment, he must order the notification "personally by the judicial police". The provision, therefore, shows how the system focuses exclusively on the actuality of such knowledge, without any presumption.
13.2. Based on these assumptions, it can be understood that Article 420-bis, paragraph 2 of the Code of Criminal Procedure, with a view to an understandable "facilitation" of the judge's task, has typified cases in which, for the purposes of the certainty of knowledge of the vocatio in ius, a notification that has not been made in the defendant's own hands may be valorised.
Read in the context of the provision, therefore, having elected domicile, having been subjected to a precautionary measure, having appointed a defence counsel, are situations that make it possible to equate regular service but not personal service with actual knowledge of the trial. It is not, therefore, a matter of a presumption that the trial is known and that proof of service is no longer necessary, but of cases in which, under the given conditions, it is reasonable to assume that the defendant has actually known the document duly served in the given manner.
On the other hand, no effect will result from an impossibility of regular service: being away from the elected domicile will not allow the defendant to proceed in his absence on the basis of the notification as an untraceable person or at the municipal house; being untraceable will not allow the albeit valid notification pursuant to Article 161(4) of the Code of Criminal Procedure to prevail over the substantial fact of non-knowledge; having appointed a trusted lawyer who has then renounced the mandate or who has been revoked will likewise not allow the defendant to proceed without certainty of knowledge.
13.3. This, therefore, clarified in this way is the much simpler scope of the conditions of Article 420-bis of the Code of Criminal Procedure: the activity of the judicial authority is facilitated because (exclusively) under the given conditions personal service is not deemed necessary but service at the hands of the person living with the defendant etc. may be sufficient.
Referring to the regulation of notifications, under Art. 420-bis of the Code of Criminal Procedure, for the purpose of trial in absentia, outside of the hypotheses in question, the only form of notification that is useful to allow proceedings to proceed is personal service. Whether service is effected ritually, but in another manner, is irrelevant: what counts is the substantive result.
If, on the other hand, the hypotheses in question apply, then those methods of service that are not personal, appropriate to actual knowledge, such as those provided for by Art. 157 of the Code of Criminal Procedure up to paragraph 7, as well as service at an "actual" elected domicile in the sense already mentioned, or at the lawyer's place of trust in accordance with the various provisions (including, as a rule, service at the fugitive's lawyer's place of trust), will also become useful.
Ultimately, the scope of the provision in question renders service that is not personal and that is "possible" usable for its own purposes.
13.4. It is only to be clarified that, according to the express provisions of the law and the interpretation of the United Sections, in the system of service a clear distinction is made between a "possible" service, i.e. one that is effected in such a way as to make the document effectively cognizable to the party (such as service by a person living with the fugitive) and service that does not have this characteristic because, even if formally correct, it does not bring the document to actual cognizance, limiting itself to a fictio.
Consider the provision of Article 161(4) of the Code of Criminal Procedure according to which "if service in the domicile determined in accordance with paragraph 2 becomes impossible, service shall be effected by delivery by a lawyer".
In fact, if Article 157(8) of the Code of Criminal Procedure is taken into account, ritual service with "legal" value would always be possible since, in the event of the impossibility, for the various possible reasons, of service at the domicile, service by depositing the document at the town hall with a subsequent notice by registered mail is always permissible and will be valid even if the envelope remains lying unclaimed at the post office.
13.5. These United Sections have already clarified in two decisions that the "impossibility" of service under Article 161(4) of the Code of Criminal Procedure exists when actual service at the domicile is not possible, even if only because of the temporary absence of the person concerned:
Sez. U, Judgment No. 58120 of 2017, "However, it is necessary to better define the prerequisite that integrates an "impossibility" of notification, pursuant to Article 161, paragraph 4, of the Code of Criminal Procedure. In line with what was stated by Sez. U, no. 28451 of 28/04/2011, Pedicone, Rv.250121, it must be held in this regard that the judicial officer's certification that he did not find the defendant in the declared domicile - or the domicile agent in the elected domicile - is sufficient, as no investigation is required to establish the defendant's unavailability, which is only required when it has not been possible to effect service in the manner provided for by art. 157, as can be deduced from the opening words of Article 159 of the Code of Criminal Procedure; therefore, even the temporary absence of the defendant or the fact that it is not easy to identify the specific place indicated as domicile entitles the office responsible for sending the document to be served to resort to the alternative forms provided for by Article 161(4) of the Code of Criminal Procedure".
Sez. U, no. 28451 of 28/04/2011, Pedicone, Rv.250121: "... it is appropriate to clarify on this point that Article 163 of the Code of Criminal Procedure, according to which "For notifications carried out in the domicile declared or elected in accordance with Articles 161 and 162, the provisions of Article 157 shall be observed, insofar as applicable", for the safeguard clause contained therein, relates to the identification of the potential recipients of the document and not to the place or manner of service. In fact, the methods of execution of service established by Article 157, paragraph 8, of the Code of Criminal Procedure, by virtue of the textual reference of the rule, are consequential to the occurrence of the situations hypothesised by paragraph 7 of the same article (absence, unsuitability, refusal to receive the document with the consequent obligation to carry out new searches of the defendant); situations in themselves precluding the possibility of service at the declared or elected domicile or at the domicile of the defendant and capable of identifying the hypothesis provided for by Article 161, paragraph 4, of the Code of Criminal Procedure.
The impossibility of service in the hands of the person designated as domicilee, due to the refusal to receive the document or the failure to find the domicilee or the defendant himself in the place of declaration or election of domicile or other suitable persons, constitutes the impossibility of service within the meaning of Article 161(4) of the Code of Criminal Procedure, so that in such cases it is not permitted to proceed in the manner provided for in Article 157(8) of the Code of Criminal Procedure. Therefore, in the event that service at the declared or elected domicile proves impossible for one of the reasons set forth in Art. 157(7) of the Code of Criminal Procedure, service must be effected pursuant to Art. 161(4) of the same code, while it is precluded to proceed in accordance with the forms set forth in Art. 157(8) of the Code of Criminal Procedure".
13.6. This confirms that Art. 420-bis of the Code of Criminal Procedure extends the possibility of proceeding in absentia to cases where, given the given situations, such as to justify the required diligence of the person concerned, service was "possible" at the hands of persons other than the person concerned. In these cases alone, the certainty of knowledge of the summons for the given day is "typified".
13.7. This interpretation first of all has a clear literal reference since nowhere in the provisions on absentia are "presumptions" mentioned. The rule assumes that the party has had notice at an address for service etc., but does not state that if this is not possible, service as an unauthorised person etc. takes over.
With such an interpretation, faithful to the textual datum and the ratio, the system is fully in line with the principles and the development of what had already been achieved in 2005: service is only effected against the certainty of knowledge of the process (or voluntary evasion of knowledge). This is also reflected in the rules on rescission of the judgment which (while reasonably not excluding the deduction of the judge's error of assessment in considering the party to have knowledge of the summons) clearly refers not to the overcoming of a presumption but to the indication of concrete events, not known to the judge, that prevented participation in the trial.
14. In closing, it should be recalled how the provision, for the defence against the "fake unawares", emphasises, as the only hypothesis in which it is possible to proceed even if the party is unaware of the vocatio in ius, the voluntary evasion "of the knowledge of the proceedings or of acts of the proceedings".
Evidently, this must be positive conduct, in respect of which an ascertainment of fact is necessary, also as regards the psychological coefficient of the conduct. Article 420-bis of the Code of Criminal Procedure does not "typify" and does not allow the typification of any particular conduct that may be considered as such; therefore, common situations such as unavailability, elected domicile, etc. cannot be automatically included in this context. Certainly, the manifest lack of due diligence in providing information, the indication of a false domicile, albeit apparently valid, and so on, may be circumstances that can be assessed in concrete cases, but they cannot in themselves be decisive, on a merely abstract level, in order to be able to affirm the recurrence of 'wilful abduction': if one exaggerates the concept of "lack of diligence" to the point of automatically transforming it into an overt intention to avoid knowledge of the acts, considering it sufficient to dispense with proof of awareness of the vocatio in ius in order to proceed in absence, one would be doing a mere name-changing operation and reverting to the old presumptions, which is obviously an operation that is not permitted.
15. Turning, finally, to the decision in the present case, in the light of the foregoing, the Attorney General's appeal must be dismissed.
Correctly, in fact, the Court of Assizes of Appeal held that, under the given concrete conditions, the election of domicile was entirely unsuitable.
In addition to this, it is clear from the non-controversial reconstruction of the facts that the defendant had no knowledge of the summons, nor were any reasons put forward as to why he voluntarily evaded knowledge of the proceedings. The appellant's arguments, on closer examination, essentially concern only the issue of the possibility of an election of domicile at a very early stage of the proceedings but do not touch upon the issue of the actuality of that election.
Dismiss the appeal.
So decided on 28 November 2019
The President Domenico Carcano