The principle of ne bis in idem is not a general principle of international law, as such applicable in the domestic legal system; the Constitutional Court itself has, on several occasions, ruled out that the prohibition of bis in idem assumes the value of a principle common to the totality of modern state systems and of a generally recognized norm of international law, stressing that the Italian legal system, like those of most modern states, is inspired by the principles of territoriality and general mandatory nature of criminal law according to the criteria established by Article 6 et seq. of the Criminal Code, under the terms of which the possibility of renewal in the State of the trial is provided for, regardless of the outcome of the trial already held abroad, the judgment of which, although acquittal, has no preclusive effect on the application of Italian law.
These principles find their objective justification in the differing reality of the criminal and criminal procedural discipline characterizing the different positive legal systems: in essence, once it is affirmed that the principle of ne bis in idem constitutes neither principle nor custom of international law, but, at most, a "tendential principle which inspires the international order today" to protect the position of the individual "in the face of the competing punitive powers of States," it must be held that, having recognized Italian jurisdiction on the basis of the rules of domestic law (Art. 6 and 11 c.p.), these can recede with respect to international ones (which provide for ne bis in idem hypotheses) only in the presence of conventions between states, ratified and made enforceable, binding only the contracting states within the limits of the agreement reached.
Only in the more circumscribed EuroUnion sphere does the general value of the principle of ne bis in idem have a preclusive effect on a second trial for the same facts: Article 54 of the CAAS states that "a person who has been finally judged in one Contracting Party may not be subjected to criminal proceedings for the same facts in another Contracting Party, provided that, in the case of conviction, the sentence has been served or is actually being served at present or, according to the law of the convicting Contracting Party, may no longer be served."
With the Charter of Fundamental Rights of the European Union (so-called Nice Charter), proclaimed a first time on 7.12.2000 in Nice and a second time, in an adapted version, on 12.12.2007 in Strasbourg (by Parliament, Council and Commission), that the principle of ne bis in idem, contained in Art. 50 ("No one may be prosecuted or convicted for an offence for which he or she has already been acquitted or sentenced in the Union as a result of a final criminal judgment in accordance with the law"), is further consolidated in its European dimension and is configured as a true right to protect the accused; this follows the amendments introduced by the Lisbon Treaty, just whereby the Nice Charter is given binding effect on a par with the EU and TFEU Treaties, pursuant to Art. 6(1) EU Treaty ("has the same legal value as the Treaties"). It is, therefore, primary law and represents the most evolved form of protection since the protection provided applies both in the domestic legal system of each member state and in relations between national legal systems (unlike Article 4 Protocol No. 7 ECHR, which applies only within the jurisdiction of a member state).
The principle of ne bis in idem, which prohibits the holding of a second trial for identical facts (i.e., corresponding in the essential constituent elements of conduct, will and event), currently has the following distinct areas of operation:
1) in the sphere of domestic law, it finds its regulation in Articles 649 (for the judgment of cognition), 669 (for the judgment of execution) and 28 c.p.p. (in relation to positive conflicts of jurisdiction): although not expressly contemplated by the Constitution, it is brought back by constitutional jurisprudence to Articles 24 and 111 Const. 8 (Constitutional Court, sent. no. 501 of 2000 and sent. no. 129 of 2008) and is recognized by this Court of legitimacy as a general principle of the system, adapted to the requirements of rationality and functionality of the system, a principle from which the judge, in accordance with art. 12, paragraph 2, of the prelegislations, cannot disregard in his interpretative activity
2) in the sphere of general international law, even in the current historical moment - in which there remain "multiple and often profound variations from state to state" in the "social and political evaluation of human facts" - it assumes, at most, value as a "tendential principle," but not (yet) value as a general principle, applicable, as such, in the domestic system pursuant to Article 10 Const, so that a trial held against a foreign defendant, in a state where there are no agreements in force capable of derogating from the discipline of Article 11 of the Criminal Code, does not preclude the renewal of the trial in Italy for the same facts;
3) in the context of conventional European law (from the Convention), Art. 4 of Protocol no. 7 deals with the principle only from an internal perspective of individual states; 4) in the sphere of European Union law, finally, ne bis in idem assumes, as of today, from the perspective of supranational judicial cooperation between states, the value of a general principle and, as such, must find full recognition in the domestic legal system, given that, within the framework of the "European legal space," "every judgment issued by a member state must be valid as a judgment of each individual state, on the assumption that these are systems founded on respect for human rights and the defensive guarantees that constitute the core of due process."
The distinction set forth finds an effective synthesis in the agreeable assertion, suggested by authoritative doctrine, that "if there is a lack of mutual trust between states or a minimum commonality of values (such as is the one on which Art. 2 TEU, dedicated to the "values of human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities") or similar or harmonized criminal nonnas that would contribute to the elimination of conflicts of jurisdiction and the recognition of the operability, at the international level, of ne bis in idem, the balance between the interest of the State and the protection of the individual will result in favor of the former."
(unofficial automatic translation)
ITALIAN SUPREME COURT OF CASSATION
I CRIMINAL SECTION
Judgment
(hearing 06/24/2022) 07/09/2022, no. 32932
Composed of the Honorable Magistrates:
Dr. MOGINI Stefano - President -
Dr. ROCCHI Giacomo - Councilor -
Dott. LIUNI Teresa - Councilor -
Dr. SANTALUCIA Giuseppe - Councilor -
Dr. POSCIA Giorgio - rel. Councilor -
pronounced the following:
JUDGMENT
On the appeal brought by:
P.I., born in (OMISSIS);
against the judgment of the Court of Assizes of Appeal of Milan of November 24, 2021; having regard to the acts, the contested measure and the appeal;
Hearing the report delivered by Councilor GIORGIO POSCIA;
read the indictment submitted pursuant to Legislative Decree No. 137 of October 28, 2020, Article 23, Paragraph 8, in which the Public Prosecutor, in the person of Deputy Attorney General SIMONE PERELLI, concluded for the dismissal of the appeal:
Read the submissions of the appellant's counsel Advocate RB, who insisted that the appeal be granted.
Development of the trial
1.By judgment pronounced on January 18, 2021, the Milan Assize Court found P.I. guilty (in conjunction with M.G. already tried in separate proceedings) of: (count 1), voluntary manslaughter of L.G.R.S., who was shot in the left temple with a gunshot materially fired by P., in (OMISSIS); (count 2), attempted murder of E.O.C., who was shot in the left thigh with a gunshot fired at eye level by P, in (OMISSIS); (count 3), unlawful possession and carrying of a 9x21 semiautomatic pistol, possession of a magazine for a two-wire semiautomatic pistol, another magazine for a single-wire semiautomatic pistol, and a shotgun box, in (OMISSIS) and (OMISSIS) from September 2 to 4 (OMISSIS); (count 4), kidnapping of Nina Alexandra Lascar, who was forced at gunpoint to get into the car driven by P. and occupied by M.G. and to stay against her will in the apartment of the two, in (OMISSIS) and (OMISSIS) from 2:30 a.m. on September 3 (OMISSIS) to 2:30 p.m. on September 4 (OMISSIS);had declared the charges under chapters 5, 6 and 7 (personal injury, private violence and sexual assault against Lascar) absorbed in the crime under chapter 4.
1.1.The Milan Assize Court - having united the aforementioned crimes under the bond of continuation - sentenced him to twenty-five years and four months' imprisonment, in addition to the payment of court costs and maintenance expenses during the pre-trial detention in prison; with the same sentence, finally, P. was acquitted of the charge under chapter 8) of the rubric relating to the possession and illegal carrying of a 7.65 caliber semiautomatic pistol, serial no. 32496, Browing model equipped with silencer.
2. The Court of Assize of Appeal of Milan in a judgment of November 24, 2021 rejected the appeal brought by P.I. and thus upheld the above decision of the Court of First Instance.
2.1. There were three grounds for the defendant's appeal.
2.2.With the first, the nullity of the judgment of first instance was objected to with reference to Article 178 of the Code of Criminal Procedure; with the second, the nullity of the appealed judgment for violation of Articles 649 and 669 of the Code of Criminal Procedure and Article 9 of the Paris European Convention on Extradition of 1957; with the last ground of appeal, the extent of the sentence imposed was contested, which was considered excessive compared to the facts, and the failure to grant general mitigating circumstances was complained of.
In this regard, the territorial court ruled out the existence of an absolute impediment related to the defendant's health conditions, as no such condition emerged from the health documentation attached to the appeal.
Then, with regard to the second ground of appeal, the Court of Assize of Appeal observed that a trial held in a state that does not belong to the European Union does not preclude the renewal of the trial for the same facts in Italy because ne bis in idem is not a general principle of international law, applicable as such in the domestic system; finally, with respect to the punitive treatment, the territorial court rejected the relevant complaints, observing that a fixed minimum sentence could not be considered excessive and that it did not appear possible to recognize the generics in view of the very serious crimes committed by P. while he had escaped.
3. Against the aforementioned judgment P.I., through his lawyer lawyer RB, appeals for cassation on three grounds, given below within the limits of Article 173 disp. att. c.p.p.
3.1. With the first, he complains of a violation of the law in that the territorial court failed to note the defendant's inability (due to his health conditions and travel restrictions related to the Covid-19 pandemic) to enter Italian territory to attend the trial at first instance, by virtue of the provisions of Article 420-ter, paragraphs 1 and 3, c.p.p.
3.2. In his second ground of appeal, the appellant complains of the violation of Article 14, paragraph 7, of the International Covenant on Civil and Political Rights, Article 117, paragraph 1, of the Constitution and Articles 731 and 739 of the Code of Criminal Procedure. In particular, he points out that the principle of international ne bis in idem subsists even in relations between Italy and Albania (despite the fact that the latter is not a member of the European Union) since the prohibition contained in the aforementioned Convention extends to all the adhering States and therefore also to Italy and Albania.
3.3. Finally, with the third ground of appeal, the appellant complains of violation of Article 143-bis of the Criminal Code with the consequent nullity of the judgment under appeal since it was not ordered to be translated.
Reasons for the decision
1.The Court notes that the appeal is unfounded and must therefore be dismissed.
2. First of all, with reference to the first ground of the appeal, it is noted that the territorial court pointed out that the defense counsel for the present appellant - at the hearing of October 14, 2020 - had requested a postponement due to the defendant's legitimate impediment related to his serious health condition as he was suffering from a disease of an oncological nature, and that this request had been rejected since, on the basis of the same documentation, there was no proof of the complained of illness. In the appealed judgment it is reasoned - adequately and without logical flaws - that the non-recognition of the legitimate impediment was justified precisely by the same health documentation in which the existence of an illness of a cancerous nature was not confirmed, nor was the assbta impossibility of attending the hearing in person or by video conference. Well, the appellant with his appeal would like a different evaluation of the aforementioned health documentation, which, however, is not possible here since it has already been screened in detail in the merits.
3. As for the second ground, it is noted that this Court has ruled several times in a contrary sense to the appellant's claims (see, most recently, Sect. 1, Judgment no. 14868/2020, unrestricted).
3.1.In particular, it has been clarified that "in the case of a crime committed in the national territory by a citizen belonging to a state where there are no agreements in force that are suitable for derogating from the discipline of Article 11 of the Criminal Code, the trial held in that state does not preclude the renewal of the trial in Italy for the same facts, the principle of ne bis in idem not being a general principle of international law, as such applicable in the domestic system" (Sez. 1, no. 33564 of 21/5/2019, Tavanxhiu, n. m.; Sect. 4, no. 3315 of 6/12/2016, dep. 2017, Shabani, Rv. 269222 - 01; Sect. 1, no. 29664 of 12/6/2014, P.G. in proc. Spalevic, Rv. 260537 - 01; Sect. 1, no. 20464 of 5/4/2013, N., Rv. 256162 - 01; Sec. 6, No. 44830 of 5/22/2004, Cuomo and others, Rv. 230595 - 01; Sec. 1, No. 12953 of 5/2/2004, Di Blasi, Rv. 227852 - 01).
It is also worth mentioning that the Constitutional Court has, on several occasions, ruled out that the bis in idem prohibition assumes value as a principle common to the totality of modern state systems and as a generally recognized norm of international law, pointing out that the Italian legal system, like those of most modern states, is inspired by the principles of territoriality and general compulsoriness of the criminal law according to the criteria established by Article 6 et seq. of the Criminal Code, under the terms of which the possibility of renewal in the State of the trial is provided for, regardless of the outcome of the trial already held abroad, the judgment of which, although of acquittal, has no preclusive effect on the application of Italian law (among the most recent, Sec. 1, no. 33564 of 21/5/2019, Tavanxhiu, cited above).
These principles, to which both provisions of Article 11 of the Criminal Code are informed - a norm repeatedly judged to be in conformity with constitutional precepts (Constitutional Court, no. 48 of 18/4/1967; no. 1 of 1/2/1973; no. 289 of 25/5/1989) - find their objective justification in the differing reality of the criminal and criminal procedural discipline characterizing the different positive legal systems (Constitutional Court, no. 69 of 8/4/1976, recalling the aforementioned no. 48/67). In essence, once it has been affirmed that the principle of ne bis in idem constitutes neither principle nor custom of international law, but, at most, a "tendential principle which inspires the international legal system today" to protect the position of the individual "vis-à-vis the competing punitive powers of states" (Const. Court, No. 58 of 1992), it must be held that, having recognized Italian jurisdiction on the basis of the rules of domestic law (Art. 6 and 11 of the Criminal Code), these can recede with respect to international ones (which provide for ne bis in idem hypotheses) only in the presence of conventions between states, ratified and made executive, binding only the contracting states within the limits of the agreement reached.
3.2. It does not affect this approach and, consequently, the correctness of the contested decision, the normative and jurisprudential evolution that has led to the recognition, in the more circumscribed EuroUnion context, of the general value of the principle of ne bis in idem (Sez. 6, no. 54467 of 15/11/2016, Resnely, Rv. 268931 - 01).
3.3. In retracing, briefly, said evolution, it is necessary to mention, first of all, the European Convention on the International Validity of Repressive Judgments, opened for signature in The Hague on 28.5.1970, the European Convention on the European Transmission of Repressive Judgments, opened for signature in Strasbourg on 15.5.1972, and the Convention between the Member States of the European Communities of Brussels of 25. 5.1987, made enforceable in Italy by L. 16.10.1989, no. 350, in which the principle in question is considered to be the "international effect of the judgment rendered in each of the member states," a formulation that will be taken up in the Convention implementing the Schengen Agreement of 19.6.1990, transposed into Italian law by L. 30.9.1993, no. 388.
3.4. In particular, Article 54 states that "a person who has been finally judged in one Contracting Party may not be subjected to criminal proceedings for the same facts in another Contracting Party, provided that, in the case of conviction, the sentence has been served or is actually being served at present or, according to the law of the convicting Contracting Party, may no longer be served." This gives domestic judgments a preclusive effect with regard to the prosecution of the same fact in any other member state, although the operation of the principle is limited by the provision contained in Article 55, in which the Contracting Parties are granted the power to exclude from the application of the convention judgments relating to acts committed, even in part, on the national territory or to offenses against the security or essential interests of the Contracting Party or, again, committed by public officials in violation of their official duties. In any case, the step forward marked by Article 54 has been recognized by case law (Sec. 1, No. 28299, 3/6/2004, Desiderio, Rv. 228779 - 01) and by the doctrine, which has remarked that with the Schengen Convention the substantial equivalence between the final sentences pronounced by the contracting states has been achieved, justified on the basis of the tendential "homogeneity of the systems of the countries signatory to the agreement as a result of the common adherence to the general principles of Community law and to the framework of substantive and procedural guarantees inherent in the respect for human rights and fundamental freedoms of the European citizen" (Sez. 6, no. 54467 , cit.).
3.5. However, it is with the Charter of Fundamental Rights of the European Union (so-called Nice Charter), proclaimed a first time on 7.12.2000 in Nice and a second time, in an adapted version, on 12.12.2007 in Strasbourg (by Parliament, Council and Commission), that the principle of ne bis in idem, contained in Art. 50 ("No one may be prosecuted or convicted for an offence for which he has already been acquitted or sentenced in the Union following a final criminal judgment in accordance with the law"), is further consolidated in its European dimension and is configured as a true right to protect the accused; this follows the amendments introduced by the Lisbon Treaty, just whereby the Nice Charter is given binding effect on a par with the EU Treaties and TFEU, pursuant to Art. 6(1) EU Treaty ("has the same legal value as the Treaties"). It is, therefore, primary law and represents the most evolved form of protection since the protection provided applies both in the national law of each member state and in the relations between jb national laws, unlike Article 4 Protocol No. 7 ECHR, which applies only within the jurisdiction of a member state. As stated in the "Explanation" regarding Article 50, the application of the principle corresponds to the CAAS (Articles 54 - 58), the ruling of the European Court of Justice of 11.2.2003 in the joined Giiziitok and Brugge cases, and the rules contained in other EU conventions (Article 7 of the Convention on the Protection of the European Communities' Financial Interests, Article 10 of the Convention on the Fight against Corruption). As for the application of the principle within a member state, the guaranteed right - the "Explanation" specifies - has the same meaning and scope as the corresponding right enshrined in the ECHR, and thus in Protocol No. 7, in accordance with the horizontal safeguard clause contained in Article 52(3).
Limiting the application of the principle is the material scope, Article 51(1) providing that the Charter shall apply to institutions, bodies, offices and agencies of the Union and to states "exclusively in the implementation of Union law." Adhering to the conclusions drawn by part of the doctrine, the aforementioned Sec. 6, no. 54467 agrees that Article 51 can be interpreted broadly, i.e., in cases where even only an "element of connection" can be found, albeit "not in terms of the punctual implementation or execution of Union law," as argued by the European Commission in its Communication of 19.10.2010 and, more recently, by European case law. In the latter regard, it should be noted how the Court of Justice has judged implementation "any national legislation aimed even simply at affecting areas regulated by the aforementioned EU sources," specifying "that the general principles of the European Union bind the Member States when they transpose obligations arising from EU law (... ) but also when they adopt measures derogating from these obligations," so that "all national rules capable of entering the scope of EU law are subject to the scrutiny of these principles" (Court of Justice, 29/5/1997, Kremzow; Court of Justice, 22/11/2005, Mangold; Court of Justice, 19/1/2010, Kucukdeveci; Court of Justice, 26/2/2013, Akerberg Fransson).
3.6. Therefore, it must be affirmed that the principle of ne bis in idem, which prohibits the holding of a second trial for identical facts (i.e., corresponding in the essential constituent elements of conduct, will and event), has, at present, the following distinct areas of operation: 1) in the sphere of domestic law, it finds its discipline in Art. 649 (for the judgment of cognition), 669 (for the judgment of execution) and 28 c.p.p. (in relation to positive conflicts of jurisdiction): although not expressly contemplated by the Constitution, it is brought back by constitutional jurisprudence to Articles 24 and 111 Const. 8 (Const. Court, sent. no. 501 of 2000 and sent. no. 129 of 2008) and is recognized by this Court of legitimacy as a general principle of the system, adapted to the needs of rationality and functionality of the system, a principle from which the judge, pursuant to art. 12, paragraph 2, of the prelegislations, cannot disregard in his interpretative activity (Sez. U, no. 34655 of 28/6/2005, Donati, Rv. 231800 - 01). 2) in the sphere of general international law, even in the current historical moment - in which there remain "multiple and often profound variations from state to state" in the "social and political evaluation of human facts" (the teaching of Constitutional Court No. 48 of 1967 is still valid) - it assumes, at most, the value of a "tendential principle," but not (yet) the value of a general principle, applicable, as such, in the domestic system pursuant to Article 10 Const, so that a trial held against a foreign defendant, in a state where there are no agreements in force capable of derogating from the discipline of Article 11 of the Criminal Code, does not preclude the renewal of the trial in Italy for the same facts; 3) in the context of conventional European law (from the EDU Convention), Article 4 of Protocol no. 7 deals with the principle only from an internal perspective of individual states; 4) within the framework of European Union law, finally, ne bis in idem assumes, as of today, from the perspective of supranational judicial cooperation between states, the value of a general principle and, as such, must find full recognition in the domestic legal system, given that, within the framework of the "European legal space," "every judgment issued by a member state must be valid as a judgment of each individual state, on the assumption that these are systems founded on respect for human rights and defensive guarantees that constitute the core of due process" (again Sez. 6, no. 54467 of 11/15/2016, Resnely, Rv. 268931 - 01).
The distinction set forth finds an effective synthesis in the agreeable statement, suggested by authoritative doctrine, that "If there is a lack of mutual trust between states or a minimum commonality of values (such as is that on which Article. 2 TEU, dedicated to "the values of human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities") or similar or harmonized penal nonnas that would contribute to the elimination of conflicts of jurisdiction and to the recognition of the operability, at the international level, of ne bis in idem, the balance between the interest of the State and the protection of the individual will result in favor of the former."
3.7. To the evoked "commonality of values" that connotes the "European legal space" is still extraneous, as known, the Republic of Albania, of which today's appellant is a citizen, and, therefore, the decision of the Court of Assizes of Appeal of Milan, which rejected the defendant's petition, appears correct because: 1) the petitioner is an Albanian citizen; 2) the Republic of Albania has not, as yet, completed the process of accession to the European Union, so that its citizens cannot invoke in their favor, in cases such as the present one, the application of the principle of European ne bis in idem, which takes on the value of a general legal principle in the circumscribed EuroUnion sphere; 3) there are no bilateral agreements concluded between the two states of Italy and Albania that regulate the reciprocal application of the principle of ne bis in idem, so that, in a case like the present one, it is not permitted to derogate from the provision of Art. 11(1) of the Criminal Code, according to which, in the hypotheses contemplated by Article 6 of the Criminal Code, the sentence pronounced against a foreign citizen in a foreign state does not prevent the holding of another trial for the same facts by the national judicial authority.
Nor does it appear possible to reach different conclusions on the basis of the relevance that would assume, in the matter under discussion, Article 9 ("Ne bis in idem") of the European Convention on Extradition, opened for signature in Paris on 13.12.1957 and ratified by both Italy (on 6/8/1963 and entered into force on 4.11.1963) and Albania (on 19.5.1998 and entered into force on 17.8.1998). In fact, this provision provides that: "Extradition shall not be permitted when the individual claimed has been finally tried by the competent authorities of the requested Party for the facts motivating the request. It may be refused if the competent authorities of the requested Party have decided not to open a criminal prosecution or to close one already initiated for the same facts."
The point was adequately addressed by the District Court, which, in keeping with what has been affirmed on several occasions by this Court (see the aforementioned Sect. 1, No. 33564/2019, Tavanxhiu; Sect. 4, No. 3315/2017, Shabani; Sect. 1, No. 20464/2013, N. ), correctly noted - contrary to what is alleged in the appeal - that the invoked Convention refers to concrete cases different from the one under consideration, regulating only extradition methods and procedures and, therefore, cannot be considered suitable to be read in a derogatory perspective of the domestic system.
4. The third plea is also unfounded considering that in the matter of translation of acts, in the absence of specific elements indicative of an impairment with regard to the full explication of the right of defense, the failure to translate the plea bargaining sentence in a language known to the non Italian speaking defendant does not in itself integrate cause for its nullity, given that, after the amendment of Article 613 of the Code of Criminal Procedure, by Law No. 103 of June 23, 2017, the defendant no longer has the right to personally file an appeal for cassation (ex multis Cass. Sez. 5, Judgment No. 32878 of 5/2/2019, Rv. 277111 - 02).
In this regard, it is noted that the appellant has not attached specific reasons as to the concrete prejudice he would have suffered from the failure to translate the judgment of second instance, considering that he could count on a trusted defense counsel and that the cassation appeal in his interest was in any case timely filed.
5. The appeal, therefore, must be dismissed with an order that the appellant pay court costs. Finally, it is ordered, in the event of the dissemination of this judgment, the omission of personal details and other identifying information pursuant to Article 52 of Legislative Decree No. 196 of 2003 in view of the subject matter of the indictment.
P.Q.M.
Dismisses the appeal and orders the appellant to pay the court costs. Orders, in case of dissemination of this
judgment, the omission of personal details and other identifying data pursuant to Legislative Decree No. 196 of 2003 Article 52 in view of the subject of the indictment.
Conclusion
Thus decided in Rome, June 24, 2022.
Filed in the Court Registry on September 7, 2022Greffier Présidente