Extradition request does not prevent recognition of a foreign decision: on the opposite, if the latter is accepted, it prevents extradition.
(unofficial machine translation)
Extradition request does not prevent recognition of foreign judgment (Council of State, 7504/24)
Sept. 26, 2024, Council of State
The application for recognition of a foreign judgment under Article 731 of the Code of Criminal Procedure is not precluded by a pending extradition request, posing itself in terms of alternation to extradition: in fact, the fact that the recognition has taken place precludes extradition: therefore, the refusal to consider the application for reconveyance due to the pending extradition request is illegitimate.
The act by which the Ministry of Justice takes action on requests for international judicial assistance (including on requests for recognition of a foreign judgment pursuant to Article 731 of the Code of Criminal Procedure) is a discretionary administrative measure, and as such may be reviewed by the administrative judge under the profile of lack of motivation.
Council of State
NO. 07794 /2024 REG.PROV.COLL.
NO. 07504/2022 REG.REC.
Sept. 19 (hearing) - Sept. 25, 2024
sitting as a court of law (Section Three)
Has pronounced this
JUDGMENT
on the appeal number 7504 of 2022, brought by C M D, represented and defended by Nicola Canestrini, lawyer, with digital address as in PEC from Registri di Giustizia;
v.
Ministry of Justice, in the person of the Minister pro tempore, represented and defended ex lege by the Avvocatura Generale dello Stato, domiciled in Rome, via dei Portoghesi no. 12;
for the reform
of the judgment of the Regional Administrative Court for Lazio (Section One) No. 3201/2022, rendered between the parties
Having regard to the appeal and its annexes;
Having regard to the notice of appeal filed by the Ministry of Justice; Having regard to all the acts in the case;
Rapporteur at the public hearing on September 19, 2024, Cons. Giovanni
Tulumello and heard the parties' attorneys as per the minutes; Held and considered in fact and law the following.
FACT and JURISDICTION.
1. By Judgment No. 3201/2022, the Lazio Regional Administrative Court, Rome Branch, declared inadmissible the appeal brought by today's appellant - a citizen of the E.U. residing in Italy - for the annulment of Order No. EP 76 (20) AR DD of September 22, 2020 of the Ministry of Justice, which rejected the petition - filed pursuant to Article 731 of the Code of Criminal Procedure. - for recognition of a foreign criminal conviction for the purpose of enforcement in the state.
The application had been made by the interested party for the purpose of execution in Italy of the sentence provided for in that judgment, instead of extradition (requested by the country that had issued that judgment)
The said judgment was appealed on appeal by the appellant in the first instance.
The appellate administration entered an appearance to resist the appeal.
The appeal was held for decision at the public hearing on September 19, 2024.
2. The Regional Administrative Court justified the declaration of inadmissibility due to lack of interest by observing that “as things stand, the jurisdictional phase has not yet been concluded; a fortiori, the extradition decree has not yet been adopted by the Ministry of Justice, the only measure that could possibly harm the appellant's reasons (in terms, Tar Lazio, sect. I, November 8, 2021, no. 11436): it follows, therefore, how the appellant has no interest in the annulment of the note here appealed.”
The appellant argues to the contrary: “Violation of the law - lack of motivation: on the deemed lack of interest in the appeal (Articles 100 c.p.c., 34 d. lgs. 104/2010, Articles 731, 739 c.p.p.).”
For the hypothesis of the acceptance of this means, preparatory to the examination of the merits, therefore re-proposes the complaints already made in the first instance and not examined due to the absorption determined by the inadmissibility ruling:
1) “Violation of law - excess of power - lack of preliminary investigation and lack of motivation (Articles 3, 6 lett. b) and 21-octies of Law 241/1990)”.
2) “Violation of law (art. 21-octies l. 241/1990) - misapplication of Articles 731 and 739 of the Code of Criminal Procedure - failure to apply the Convention for the Transfer of Sentenced Persons dd. 21.03.1983 - failure to apply Articles 18 and 21 of the TFEU”
3. The ground of appeal concerning the decision on the interest in appeal is well-founded.
The appellant justifiably argues that “the two proceedings are in an alternating relationship: if the request for recognition under Article 731 of the Code of Criminal Procedure is granted, Mr. C will serve his sentence in Italy - and not in the United States; if, on the other hand, the extradition request is granted, Mr. C will serve his sentence in the United States - and not in Italy.”
This argument is, moreover, based on the textual tenor of Article 739 of the Italian Code of Criminal Procedure: “In cases of recognition for the purpose of the execution of a foreign sentence, except for the execution of a confiscation, the convicted person may not be extradited or subjected again to criminal proceedings in the State for the same fact, not even if this is considered differently in terms of title, degree or circumstances.”
Given that neither of the two aforementioned provisions expressly affirms the propedeuticity (or at any rate the prejudicial nature) of one proceeding with respect to the other, if indeed such a relationship is to be identified it is derived, on a logical-systematic level, in the opposite direction to that on which the appealed decision is based, precisely because of the peremptory statement contained in the aforementioned Article 739 of the Code of Criminal Procedure.
The procedure under Article 731 of the Code of Criminal Procedure is therefore, if anything, preparatory and conditional with respect to that relating to extradition (nor does it derive from the aforementioned discipline any obstructive role, with respect to the reconstruction referred to, of the diachronic profile of the case, or in any case a forfeiture effect consequent to the initiation of extradition proceedings).
Therefore, the convicted person has an independent interest in the scrutiny of the legitimacy of the measure pursuant to Article 731 of the Code of Criminal Procedure, which is unrelated to the extradition proceedings except in the sense that, if said measure is adopted, the extradition proceedings cannot take place.
Such a connection, preclusive and in the negative, cannot therefore be reversed, placing the termination of extradition proceedings as a condition for the existence of an interest in the review of the legitimacy of the measure of (non-)recognition of the foreign conviction.
4. Given the merits of this means, the question arises as to the consequences on the current judgment.
The Council of Administrative Justice for the Sicilian Region has recently urged the Plenary Assembly of this Council of State to reconsider the point of application of Article 105 of the Code of Administrative Procedure in the event that the appellate court decides to overturn the ruling of the Regional Administrative Tribunal declaring the appeal inadmissible for lack of interest (non-final judgment no. 652 of August 16, 2024).
Leaving aside this aspect, which is certainly relevant, it should be noted that in the case at hand, the contested ministerial order is motivated as follows: “It is hereby notified that the request in question cannot be pursued at present because the United States of America has submitted a request for extradition against C M D on the basis of the Extradition Treaty signed in Rome on October 13, 1983, as amended by the Bilateral Agreement signed on May 3, 2006, which does not provide for the execution in the requested state of the sentence imposed on the extradite in the requesting state in lieu of extradition.
The appellant on this point, in addition to carrying out in the (re-proposed) first ground of the appeal to the Regional Administrative Court some investigative and motivational censures, in the (also re-proposed) second ground observes that the Ministry, vested with the request, “should have simply verified the existence of an international agreement according to which the sentence that is the subject of the request could be enforced in the Italian state. In the case at hand, the agreement in question must be considered - as anticipated - the Convention on the Transfer of Sentenced Persons concluded in Strasbourg on 21.03.1983 between the States of the Council of Europe and other signatory States (including the United States of America), which Italy implemented with Law No. 334 of July 25, 1988.”
5. The Collegium preliminarily considers that the jurisdiction of the administrative judge exists over this claim.
The Plenary Meeting of this Council of State, in Judgment No. 15 of 2022, examined the issue - akin - of the existence of the jurisdiction of the administrative judge on the legitimacy (with particular reference to motivational flaws) of ministerial measures affecting the conditions of execution of the sentence in the State, and stated that “the order of remittal thus draws the consequence that the proper forum in which to examine the issues raised in the present case by the applicants on the legitimacy of the requests of the Indian government would be the jurisdictional phase pursuant to Article 724 of the Code of Criminal Procedure, and not the administrative one under the jurisdiction of the Minister of Justice. However, the thesis results in an underestimation of the powers vested in the latter by the oft-referenced Article 723 of the Code of Criminal Procedure. (....) it is not possible to postulate an exclusive relevance of the same issues in the jurisdictional phase pursuant to Article 724 of the Code of Criminal Procedure, as the order of referral envisages. In fact, in the latter, profiles of danger to national sovereignty, which are exclusively entrusted to the ministerial authority, are not assessable in the first place, whereas art. 723, paragraph 5, of the Code of Criminal Procedure attributes to the latter the power to verify whether the request for international judicial assistance is not evidently contrary to the law or to the fundamental principles of the Italian legal system. 22. Second, the different degree of cognizance incumbent on the Minister of Justice with regard to the prerequisites in question as compared to the judicial authority, made clear by the fact that for Article 723 the foreign country's request can be rejected when “it is evident” that the latter is contrary to the law or the fundamental principles of the Italian legal system, does not prevent the Minister of Justice from screening the request in accordance with the principle of ne bis in idem enshrined in Article 649 of the Criminal Procedural Code, mentioned several times above, or the need for double criminality with specific regard to the money laundering charge formulated by the Indian judicial authority, from the standpoint of its compliance with Article 648-bis of the Criminal Code, also mentioned above. In both cases, in fact, possible express violations of domestic law or contrasting with fundamental principles of the legal system come into play, abstractly referable to the hypothesis of “blocking” the request for assistance provided for by Article 723, paragraph 5, of the Criminal Procedural Code, as noted so far.”
The Collegium considers that the aforementioned conclusions can also be applied to the measure challenged in the present case, the characteristics and effects of which do not differ from those of the measures adopted pursuant to Article 723 of the Code of Criminal Procedure (the subject of the aforementioned Plenary Judgment).
6. That being said, the grounds for the grounds of the appeal at first instance, re-proposed here, with which the investigative and motivational flaws of the ministerial measure are denounced, are absorbing.
The motivation of the contested denial is centered solely on the fact that the request for extradition has been submitted by the United States of America: but such a request, pursuant to the aforementioned Article 739 of the Code of Criminal Procedure, would be paralyzed by favorable scrutiny of the request proposed by the interested party under Article 731 of the same code.
So that the indicated reasoning, as well as being deficient, in that the power should have been exercised according to the (different) parameters set by Article 733 of the Criminal Procedural Code and Article 12, last paragraph, of the Criminal Code, is contrary to the normative paradigm governing the regulation of the institutions under consideration.
It follows that the appeal at first instance is well-founded and must, in these terms, be upheld, with the consequent annulment of the measure appealed against with it, without prejudice to further measures (amended by the aforementioned flaws).
The granting of the appeal makes it unnecessary to examine the request, proposed in the alternative, for a preliminary reference to the Court of Justice of the E.U.
The costs of the proceedings at both instances, awarded as set forth in the operative part of the judgment, are to be awarded in accordance with the rule of precedence.
P.Q.M.
The Consiglio di Stato in sede giurisdizionale (Third Chamber), definitively ruling on the appeal, as proposed in the epigraph, upholds it and for the effect, in reforming the judgment appealed against, upholds the appeal at first instance in the terms stated in the grounds and annuls the measure challenged therewith.
Condemns the Ministry of Justice to pay the costs of the proceedings at first instance, in the total amount of five thousand/00 euros, plus accessories as required by law.
Orders that this judgment be executed by the administrative authority.
Considering that the conditions set forth in Article 52, paragraphs 1 and 2, of Legislative Decree No. 196 of June 30, 2003, and Article 10 of Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016, for the protection of the rights or dignity of the interested party exist, directs the Secretariat to proceed to the obscuration of the personal details as well as any other data capable of identifying the appellant.
Thus decided in Rome in the council chamber on September 19, 2024 with the intervention of the magistrates:
Michele Corradino, President Giovanni Pescatore, Councilor Nicola D'Angelo, Councilor
Giovanni Tulumello, Councilor, Extender
Angelo Roberto Cerroni, Councilor