In extradition matters, the provisional arrest by the judicial police does not require, pursuant to art. 716 of the Italian criminal procedure code, the formal submission of the extradition request by the foreign State, as the forwarding of the request for provisional arrest and the existence of the conditions provided for in art. 715, paragraph 2, penal procedure code. The Interpol Red Notice entry by the requesting State, in fact, constitutes in itself a request aimed at the adoption of a precautionary measure, prior to the forwarding of the extradition request.
For the purposes of validating the emergency arrest made by the judicial police and the provisional application of precautionary measures by the President of the Court of Appeal, it is not necessary to transmit the measure restricting personal freedom adopted by the foreign authority, but only a declaration that this measure has been issued, since the inclusion in the search bulletin of the request for provisional arrest for extradition purposes or the dissemination of a search for provisional arrest by the foreign State, with an indication of the measure restricting personal freedom, is sufficient to fulfill the condition required by art. 715, paragraph 1, letter a), of the Code of Criminal Procedure for the validation of the arrest and the provisional application of precautionary measures.
Court of Cassation
Criminal Section VI No. 47415 Year 2021
President: FIDELBO GIORGIO
Rapporteur: VIGNA MARIA SABINA
Hearing Date: 12/29/2021 - sentence 12/30/2021
JUDGMENT
on the appeal brought by
SSRS, born **/1987 in Lille (France) against the order of 08/11/2021 of the Milan Court of Appeal
having regard to the documents, the contested order and the appeal;
having heard the report made by the Judge Maria Sabina Vigna;
having heard the Public Prosecutor, in the person of the Deputy Attorney General Felicetta Marinelli, who concluded by requesting the rejection of the appeal having heard the defense counsel, MA, replacing AR, who concluded by requesting the acceptance of the appeal.
CONSIDERING THE FACTS
1. With the aforementioned order, the Court of Appeal of Milan validated the arrest of SSRS pursuant to articles 715 and 716 of the penal code, ordering the application of pre-trial detention with reference to the international arrest warrant n. 14270/19 issued for the crime of fraud by the Federal Republic of Germany. pen., ordering the application of the measure of pre-trial detention in prison with reference to the international arrest warrant no. 14270/19 issued for the crime of fraud by the Federal Republic of Mexico.
2. The trusted defense attorney has appealed the aforementioned decision to the Court of Cassation, alleging defects in the non-observance or erroneous application of procedural law due to the absence of the conditions indicated in art. 715, paragraph 2, letter b), penal procedure code, as the request for international arrest by the foreign State is not recorded in the documents and in any case the necessary information is lacking both regarding the specification of the type of crime referred to in the documents present in the proceedings, and regarding the indication of the penalties and any aggravating circumstances provided for in the legislation of the requesting State.
In this regard, it is complained that no arrest warrant has been received, nor examined by the prosecuting bodies of the Judicial Police.
CONSIDERED IN LAW
The appeal is inadmissible as manifestly unfounded, as the District Court correctly validated the arrest on the basis of the relevant international warrant no. 14270/19, issued by the Mexican Authorities for extradition purposes and duly communicated to the prosecuting Authorities by the Interpol Service of the Ministry of the Interior with a note dated November 6, 2021.
The District Court has correctly applied the principle established by this Supreme Court (Section 6, no. 44665 of 10/03/2019, Atamalibekov, Rv. 278190), according to which, in matters of extradition, provisional arrest by the judicial police does not require, pursuant to art. 716 of the Code of Criminal Procedure, the successful submission of the extradition request by the foreign state, as it is sufficient to submit the request for provisional arrest and the existence of the conditions provided for in art. 715, paragraph 2, of the Code of Criminal Procedure. The requesting State's notification to Interpol, in fact, constitutes in itself a request for the adoption of a precautionary measure, prior to the submission of the extradition request.
In this regard, it has also been specified that, for the purposes of validating the emergency arrest made by the judicial police and the provisional application of precautionary measures by the President of the Court of Appeal, it is not necessary to transmit the measure restricting personal freedom adopted by the foreign authority, but only a declaration that this measure has been issued, since the inclusion in the search bulletin of the request for provisional arrest for extradition purposes or the dissemination of a search for provisional arrest by the foreign State, with an indication of the measure restricting personal freedom, is sufficient to fulfill the condition required by art. 715, paragraph 1, letter a), cod. proc. pen. for the validation of the arrest and the provisional application of precautionary measures (Section 6, no. 44149 of 12/11/2001, Zotaj, Rv. 220311; Section 6, no. 46402 of 08/10/2019, Bangert, Rv. 277391).
Following the declaration of inadmissibility of the appeal, pursuant to art. 616 of the criminal procedure code, the appellant is ordered to pay the legal costs and a sum to the fines fund which, in view of the issues raised, it is estimated to be a fair sum of three thousand euros.
The Clerk's Office will take care of the tasks referred to in art. 203, act. prov., criminal procedure code.
P.Q.M.
Declares the appeal inadmissible and orders the appellant to pay the court costs and the sum of three thousand euros in favor of the Fine Fund.
Sends to the Registry for the formalities referred to in art. 94, paragraph 1-ter
dis. att., cod. proc. pen.
So decided on 12/29/2021.