Italian Supreme court annulls the non-recognition of the idem of an Italian conviction judgment in comparison to a Greek acquittal judgment: the notion of “same facts,” referred to by the Framework Decisions on Mutual Recognition within the European Union, for the purposes of the bis in idem prohibition, constitutes an autonomous notion of European Union law, as the interpretation of this concept on the basis of their national law cannot be left to the discretion of the judicial authorities of the individual member states, since it is necessary to ensure its uniform application in European Union law.
SUPREME COURT OF CASSATION
FIRST CRIMINAL SECTION
Judgment No. 36539-24 dd. June 5, 2024 - filed Oct. 1, 2024
Composed of:
MONICA BONI - President -
BARBARA CALASELICE - Rapporteur -
Has pronounced the following
JUDGMENT
On the appeal brought by: LS born on */1980
against the order of 01/23/2024 of the ASSISE COURT of ANCONA.
Hearing the report delivered by Counselor BARBARA CALASELICE;
read the conclusions of the Deputy Attorney General, E. Ceniccola, who requested partial annulment with reference, with dismissal of the remainder of the appeal;
read the brief, received by p.e.c. of May 16, 2024, with attached documentation, in which the defense (Attorneys Nicola Canestrini and Andrea Nobile) concluded by requesting that the appeal be granted.
IN FACT
1. In the order under appeal, the Ancona Court of Assizes, acting as execution judge, rejected the request, made by LS, aimed at obtaining the revocation of the sentences issued, among others, against him by the Ancona Court of Assizes, on November 23, 2009, as well as by the Ancona Court of Assizes of Appeal, on November 30, 2011, considering that the prohibition of previous res judicata for the same facts did not exist, as to the sentences issued by the Athens Court of Assizes of Appeal, no. 2990 of 2004 and No. 5190 of 2009, in relation to the European bis in idem prohibition provided for in Articles 50 of the Charter of Fundamental Rights of the European Union (so-called Nice Convention) and 4, prot. 7 ECHR.
2. Against the aforementioned order, the convicted has timely appealed for cassation, through the defense counsel, devolving three grounds, summarized below to the extent necessary pursuant to art. 173 disp. att. cod. proc. penal.
2.1. The first plea alleges failure to comply with and erroneous application of Articles 54 of the Schengen Convention, 50 of the so-called Nice Convention and 4, prot. 7 ECHR, as well as Article 669 of the Code of Criminal Procedure, in relation to the sameness of the facts inasmuch as the conduct complained of, in the Italian and Greek sentences, beyond their legal qualification, are the same.
2.2. The second plea alleges lack of, contradictory or manifestly illogical reasoning due to misrepresentation of evidence also due to omission, with reference to the procedural acts of the Greek Judicial Authority indicated on p. 5 of the appeal (Judgment No. 5190 of 2009 of the Court of Appeal of Athens, Order of Referral for Trial of the Council of the Court of Appeal of Athens No. 2400/08 of January 14, 2009, Judgment No. 2990 of 2004 of the Court of Appeal of Athens published on November 20, 2006).
The enforcement judge assumes that the proceedings in question evidently meaning domestic and foreign ones, are part of a unified affair pertaining to a criminal association, composed of Chinese individuals, operating internationally.
According to the defense reconstruction, it follows from the contested measure that this organization, organized for profit the illegal immigration, in Italy and other countries of the European Community, of Chinese citizens, managed and treated as prisoners, until their families paid, in full, the price established for their ransom.
The judicial proceedings held in Greece and the trials held in Italy, for the appellant, had as their object the same affair relating to a unitary association, as is evident from the fact that the Hellenic Judicial Authority, in the criminal proceedings referred to in Judgment No. 5190 of 2009, rendered by the Court of Appeal of Athens, relating to facts committed up to September 2003, had also decided against the appellant with a device that is reproduced on p. 5 and 6 of the appeal.
Reference is also made to the indictment order drawn up by the Athens Court of Appeals Council No. 2400/08 of January 14, 2009, in which the conduct ascribed to the appellant is detailed in the indictment in the terms given on p. 7 of the appeal.
Judgment No. 2990 of 2004, relating to acts committed in the period from the beginning of 2003 until the appellant's arrest on June 27, 2003, rendered by the Athens Court of Assizes of Appeal, then, decided with operative part that is reported on p. 8 and 9 of the appeal.
The defense makes a comparison between the charges of the Hellenic and Italian judicial authorities for which the defendant was charged and convicted of the crimes under chapters:
- (D), Articles 110,630, 112 No. 1 of the Criminal Code and 7 Law No. 203 of 1991, in conspiracy with KJ, MY, J, DJ and other unidentified persons operating in the foreign territory, Greece Turkey and China, in respect of the two persons named in the indictment who had the two persons named in the indictment arriving from China to Italy, through Turkey and Greece, in a state of deprivation of liberty in order to obtain from their relatives a price for their release amounting to approximately 130. 000 yen, with the aggravating factors of having committed the act in five persons and availing themselves of the conditions of Art. 416-bis of the Criminal Code;
- E), articles 110, 112 no. 1 of the Criminal Code and 12, paragraph 3, Legislative Decree no. 286 of 1998, 7 Law no. 203 of 1991, because in conspiracy between the persons referred to in Chapter D and with other unidentified persons, also operating in foreign territory, Greece, Turkey and China, in order to gain profit, even indirectly, by holding the conduct referred to in Chapter D, carried out acts aimed at facilitating the entry into the territory of the State of the two persons referred to in Chapter D, in violation of the regulations in force with the aggravating circumstance of having committed the act in five persons and taking advantage of the conditions referred to in Article 416-bis of the Criminal Code;
- F), Articles 110, 600, 112 No. 1 of the Criminal Code, 7 Law No. 203 of 1991 because in conspiracy with each other and with other unidentified persons, also operating in foreign territory Greece, Turkey and China, holding the conduct referred to in the preceding heads D and E, committed trafficking in the two persons indicated in head D who were in the conditions referred to in Art. 600 of the Penal Code and, in particular, in a situation of physical and mental inferiority and necessity as they were completely subjected to the kidnappers, whose membership in a mafia-type association was known by being in a state of kidnapping, lacking valid documents, den a knowledge of the Italian language and persons to refer to in the national territory, with the aggravating circumstance of having committed the act in more than five persons, availing themselves of the conditions set forth in Article 416-bis of the Italian Penal Code, facts that occurred in January 2003, with entry into Italy occurring in a state of deprivation of liberty from the port of Ancona.
According to the appellant, the comparison made by the judge concludes in the sense that, in the Greek criminal proceedings, the conduct of aiding and abetting illegal immigration is neither substantially nor formally contested, unlike in the Italian charges.
According to the defense, there is also a misrepresentation of evidence by omission because it fails to take into account that the charges, as formulated by the Greek authorities, referred to the crimes of aiding and abetting illegal immigration, describing conduct attributable to that hypothetical crime.
This, with particular reference to Judgment No. 2990 of 2004 of the Athens Court of Appeals, which, in the indictment, refers to conduct attributable to the crime of aiding and abetting illegal immigration because reference is made to the fact that people were being taken illegally to other European countries, mainly by way of Italy (see p. 34 of the 2004 Athens Court of Appeals judgment).
In addition, the order refers to the fact that, unlike the aiding and abetting of illegal immigration in Greece, with regard to the crime of kidnapping for the purpose of extortion, considered in the Italian judgments, a formal overlap can be identified with the crime of extortion considered in Judgment No. 5190 of 2009.
However, these are factual conducts contested by the Greek judges which, for LS's specific position, the contested measure ruled out to be totally overlapping, in violation of Article 54 of the Schengen Convention, as well as Articles 50 of the Charter of Fundamental Rights of the European Union and 4, prot 7 ECHR.
The Execution Judge reasons by holding that the Greek indictment does not describe the individual conduct ascribed to the defendants, with proceedings also involving co-defendants additional to those tried in Italy. It also holds that the Greek judicial finding would focus only on events that occurred in Greece, and the acquittal would be based on the assumption that the victims had stated that they had been picked up and transferred to the port of Patras, bound for Ancona, without being subjected to violence or threats.
Furthermore, the judgment contains no assessment of any criminal conduct ascribed to LS, moreover, naming as co-defendants persons other than those identified in the Italian indictment.
It is pointed out that the execution judge took into consideration only Judgment No. 5190 of 2009 and the Order of Referral for Trial No. 2400 of 2008 of the Athens Court of Appeal Council, incurring misrepresentation of the record.
Both facts ascribe to the defendant the material contribution that allegedly took the form of facilitating the liberation of two fellow citizens and, then, delivering them into the hands of some kidnappers who were part of a syndicate.
These are conducts, for the defense, certainly included in the Greek judgment considering that the same victims are mentioned in the Greek charges. The execution judge made remarks not on the fact deduced but on the manner of ascertaining the same, without having the material to be able to make assessments about the goodness of foreign judgments. Indeed, it is noted that even in the Italian charges the appellant's role relates to conduct perpetrated on Greek, not Italian, soil.
On p. 15 et seq. of the appeal, all points are indicated with respect to which the execution judge is allegedly running in misrepresentation by omission.
First, it is pointed out that the Athens Court of Appeals' Judgment No. 2990 of 2004 also charges that the defendants illegally smuggled their Chinese compatriots and illegal immigrants into Greece through Turkey and other countries and kept them segregated in Greece.
Even the indictment formulated by the council on a charge entirely overlapping with the crime of aiding and abetting illegal immigration, specified that being members of the criminal association in question, the understanding with accomplices of unknown identity, agents in China Turkey Italy and France, they would pick up their compatriots whom the members of the criminal association had, previously, arranged to transport illegally to Greece in return for lavish sums of money.
Then, they were locked up in rented apartments in Athens under deprivation of freedom of movement and with threats to their safety by transferring them to other countries, including Italy where they were released only when the price was paid in full (a charge in which LS was acquitted in Athens Court of Appeals ruling No. 5190).
Second, it points out that the Italian sentences pertain to events that occurred in January 2003 and that the Greek ones pertain to events committed in the period between September 2002 and early 2003 and, indeed, up to the arrest on June 27, 2003.
Again, it points out the misrepresentation in which the Execution Judge is alleged to have incurred in the part where he failed to take into account that the appellant was accused of belonging to a criminal association that had engaged in a plurality of conducts, including those for which the latter had been convicted in Italy.
The defendants, according to the Greek judgment, in conjunction with others of unknown identity, formed a structured and long-lasting mafia-type criminal association for the purpose of committing various crimes as set forth in the indictment, issued by the Athens Court of Appeals Council, with charges set forth in the judgments.
It would not, then, have assessed the circumstance that the victims of the crimes charged against the appellant are the same as those in both the Italian and Greek measures (wo-wo and a girl named Xiao Shi Wei are mentioned, as stated in Judgment No. 5190 of 2009).
It is contested, finally, that the Greek judicial findings focused on events that occurred in Greece, as assumed by the execution judge, and that the appellant's co-defendants in Greece were different from those referred to in the Italian indictment.
The appeal, on the other hand, argues that all the indictments also refer to crimes perfected in Italy.
Specularly, the Italian charges have as their object almost exclusively conduct carried out in Greece. Finally, it is pointed out that the Greek authorities failed to identify all the individuals involved in the criminal organization, as is evident from a reading of Judgment No. 5190 of 2009, hence the explanation for the non-perfect coincidence of the competitors in the crime.
2.3. The third plea alleges lack, inconsistency or manifest and illogicality of the reasoning with regard to the assessment of the identity of the fact pursuant to Articles 669 of the Code of Criminal Procedure and 54 Schengen Convention.
Reference is made to case law that has had occasion to express itself to the effect that the notion of “same facts” referred to in the Framework Decisions on mutual recognition within the European Union, for the purposes of the bis in idem prohibition, constitutes an autonomous notion of European Union law and that it cannot be left to the discretion of the judicial authorities of the individual member states to exegete this concept on the basis of individual national law.
According to the interpretation provided by the EU Court, the notion of same facts encompasses facts that are inseparably connected, regardless of their legal qualification and the legal interest protected (Grand Chamber EU Court 16.11.2010, Mantello).
The jurisprudence of legitimacy has had the opportunity to point out on the subject of European arrest warrants that, for the purposes of the configurability of the ground for the prohibition of bis in idem, it is necessary to have regard to the criterion of the substantial identity of the facts that are the subject of the relevant proceedings, regardless of the different legal qualification attributed to the episode by the authorities of the requesting State of the requested one and regardless, in the case where the conduct causes damage to a plurality of victims, also of the identity of these victims (Sec. 6, no. 5092 of 2014).
The Court of Justice of the European Union has also ruled that a divergent legal qualification of the same facts, in two different contracting states, does not preclude the application of Article 54 of the Schengen Convention.
Thus, in order to determine whether or not there is a set of factual circumstances that are inseparably connected, the competent national courts must ascertain whether the material facts of the two proceedings constitute a set of facts connected in time in space and by object.
Hence, it is necessary to comprehensively consider concrete unlawful conduct that gave rise to the criminal proceedings before two different Contracting States.
The notion of identity of the fact has thus been consistently understood as the coincidence of all the components of the concrete case that is the subject of the two trials, so that the same fact for the purposes of preclusion subsists when there is historical-naturalistic correspondence in the configuration of the crime (citing on this point Sez. U no. 34655 of 2005).
In this same vein is the interpretation provided by the ECHR, which privileges, in its most recent elaboration, the criterion of the identity of the material facts, assuming as parameters of reference the set of concrete factual circumstances, relating to the same perpetrator, inextricably linked to each other in time and space.
Nor does it matter that the victim is the same as, merely by way of example, may occur in cases where the offender by his conduct causes damage to a plurality of persons and is therefore convicted while not interfering in any way with the possibility, for the injured party who did not take part in the criminal trial, to bring the action to seek compensation for damages of before the civil court.
The reasoning of the contested order, for the appellant defense, is contradictory because, on the one hand, the criteria for the examination of the facts in line with the most developed national and European case law are enunciated; on the other hand, the failure to provide for the crime of aiding and abetting illegal immigration in the Greek judgments was erroneously based on the lack of formal charge of the crime, which, however, in the foreign judgments, is enunciated in the descriptive part of the incriminated conduct concerning the transportation of subjects to Italy illegally. From the formal point of view, then, the failure to enunciate in analytical form the conduct ascribed to the defendant and the provision of co-defendants not coinciding with the Italian ones even though the facts are temporally, subjectively, objectively connected therefore in undeniably identical.
3. The Deputy Attorney General, E. Ceniccola, concluded by submitting a brief, requesting that the case be annulled with reference limited to the conduct of extortion and criminal conspiracy, with dismissal of the remainder of the appeal.
The defense submitted a memorandum by p.e.c. dated May 16, 2024 with attached documentation, further arguing the grounds of appeal and requesting that it be granted.
IN LAW
l. The appeal is founded in part, to the extent indicated below.
2. It should be premised that, according to the shared direction of this Court (see Sec. 6, no. 54467 of 15/11/2016, Resneli, Rv. 268931 - 01), in the context of the fundamental rights of the European Union, the principle of ne bis in idem, enshrined in Art. 50 of the Charter of Nice, is configured as a general guarantee to be invoked in the European legal space, even with respect to a non-EU state, whenever a criminal judgment on the same fact has been formed against the same person, regardless of his or her European citizenship (in the case of the cited precedent, this Court held relevant, for the purpose of the existence of ne bis in idem, that the final judgment was issued by a state belonging to the European Union - Germany - although a third party to the proceedings, in matters having a connection with those within the competence of Union law, and denied, with respect to the person already definitively convicted, the extradition requested by Turkey to Italy for the crime of drug trafficking, a matter expressly provided for by Art. 83(1) of the Treaty on the Functioning of the European Union).
It should, then, be noted, in general, that the constant jurisprudence of legitimacy, to which the College intends to give continuity, affirms that in order to have identity of the fact, for the purposes of preclusion related to compliance with the principle of ne bis in idem, there must be historical-naturalistic correspondence in the configuration of the crime, considered in all its constituent elements (conduct, event, causal link) and with regard to the circumstances of time, place and person (Sez. U, no. 34655 of 06/28/2005, Rv. 231799 - 01; Sec. 5, no. 28548 of 07/01/2010, Rv. 247895; Sec. 4, no. 15578 of 02/20/2006, Rv. 233959).
The notion of “same facts,” referred to in the Framework Decisions on mutual recognition within the European Union, for the purposes of the bis in idem prohibition, constitutes an autonomous notion of European Union law (Grand Chamber, E.U. Court, Nov. 16, 2010, Mantello, § 38), as it cannot be left to the discretion of the judicial authorities of individual member states to exegete this concept on the basis of their national law, since it is necessary to ensure its uniform application in European Union law. This notion, as the EU Court has affirmed, is thus grounded in Article 54 of the Schengen Convention, according to which “a person who has been finally judged in one Contracting Party may not be subjected to criminal proceedings for the same acts in another Contracting Party provided that, if convicted, the sentence has been served or is actually in the process of being served at present or, according to the law of the convicting Contracting State, may no longer be served,” which in turn is to be considered compatible with the principle of ne bis in idem enunciated in Article 50 of the Charter of Fundamental Rights (“No one shall be liable to 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”) (Grand Chamber, E.U. Court May 27, 2014, Spasic, § 59).
The notion of “same facts” encompasses a set of facts that are “inseparably connected,” irrespective of the legal qualification of those facts 3 of the legal interest protected (Grand Chamber, E.U. Court Nov. 16, 2010, Mantello, § 39).
According to the European Court, different facts are not to be considered “the same facts,” within the meaning of Article 54 of the Convention implementing the Schengen Agreement, merely because the competent national court has found that they are linked by the same criminal design, the exegetical criterion in any case having to rely on the identity of the material facts, understood as the existence of a set of facts inseparably linked to each other (U.E. Court July 18, 2007, Norma Kraaijenbrink), § 36). Thus, the subjective link between facts giving rise to criminal proceedings in two different Contracting States does not necessarily imply the existence of an objective link between the material facts at issue, which, consequently, may differ in time and space, as well as in their nature.
In addition, it should be noted that, according to the orientation expressed by this Court (Sec. 3, no. 17197 of 10/03/2016, Andreini, Rv. 266582 - 01) on the subject of execution, the provision of Article 669, paragraph 8, of the Code of Criminal Procedure, relating to the case that there has been a plurality of judgments for the same fact against the same person, can find application if the question of ne bis in idem has been resolved, only incidentally, negatively by the judge of cognition, not assuming such a decision formal effectiveness of a judgment (this Court annulled, with referral, the order by which the execution judge had held that the ne bis in idem issue relating to the ruling of the judge of cognition that had, only incidentally, affirmed that the decree of dismissal due to prescription could not be considered irrevocable pursuant to and for the purposes of Art. 649 Code of Criminal Procedure).
2.1. That being said, it should be noted that the appellant was sentenced in Italy, by a judgment of the Court of Assize of Appeal, dated November 30, 2011, which became irrevocable on April 24, 2012, to thirty years' imprisonment for the crime of kidnapping for the purpose of extortion.and, for the crime of aiding and abetting illegal immigration, conduct charged as aggravated also under Article 7 Law No. 203 of 1991.
The defense also recalls the allegation of the crime of trafficking (Chapter F of the indictment), which, however, was ruled out in cognition (for this fact the appellant was acquitted because the fact does not exist: operative part of the sentence issued by the Ancona Assize Court on November 23, 2009 attached by the defense as a document to the May 16, 2024 memorandum).
By Judgment No. 2990 of November 16, 2004, the appellant was acquitted of the crime of criminal conspiracy, possession of forged documents, and weapons by the Athens Court of Appeals, and by a subsequent Judgment No. 5190 of December 15, 2009, rendered by the Athens Court of Appeals, the appellant was acquitted of the crime of criminal conspiracy and conspiracy to commit extortion, as per the indictment described in the indictment attached by the defense (see judgments produced, attached as a document to the May 16, 2024 memorandum).
2.2. All the described proceedings, according to the same Execution Judge who rejected the request, are part of a unitary affair concerning the criminal association composed of Chinese nationals, operating internationally, a body that organized the illegal immigration into Italy and other countries of the European Community of compatriots, who were managed and treated as prisoners until their family members paid, in full, the price established for their ransom.
In the Italian proceedings, according to the Execution Judge, the appellant is charged with, among other things, having, in conjunction with other persons some identified others to be identified, deprived of their personal freedom two Chinese nationals (Wo Wo alias Wa Wa Yu Juju and Xiao Shi Wei), who were brought to Italy from China, via Turkey and Greece, in a state of deprivation of liberty in order to obtain from their relatives the price for their release.
The appellant is attributed the role of having connected, after paying bail for the release of four illegal immigrants arrested by the Greek police, with the competitor in the crime, Ma Yin, in order to hand over to her the two victims named in the indictment; this conduct is also ascribed as aiding and abetting illegal immigration, facts that were established as having been committed in January 2003.
In the Greek proceedings, the crime of aiding and abetting illegal immigration, as indicated in the contested order, is not formally charged, conduct ascribed, on the other hand, to the convicted person by the judicial authority in Italy and for which she received a final sentence.
3. That said, it is noted that the first and second grounds are well-founded to the extent indicated below.
Indeed, what the appellant deduced in her original petition is not specifically refuted by the enforcement judge with reference to the conduct of extortion.
It appears from Judgment No. 2990 (see p. 23 and p. 38) that, before the Hellenic Authority, proceedings were also instituted for the contested participation of today's appellant in an association (the woman is referred to as the girlfriend of a co-defendant, who ran a bar meeting place of the “gang”) that dealt with kidnapping and extortion and that illegally smuggled in illegal Chinese compatriots through Turkey and other countries, including mainly Italy.
Thus, the organization described in the foreign sentence indicated, also dealt with trafficking of illegal immigrants from China, with mainly Italian destination.
The reasoning of the Execution Judge where he excludes the identity of the crime of kidnapping for the purpose of extortion from the crime of extortion considered by the Greek Assize Court, in Case No. 5190 of 2009 is insufficient.
The identity of the fact is not recognized because of the found lack of identity of the participants in the crime (the indictment formulated in the Greek proceedings concerns six persons, named as participants in the crime) and the lack of specification of the conduct ascribed to the individual participants.
Instead, on this point the identity of the fact appears to be inferred by the appellant, with attached documentation, even though it is attributed to only partially overlapping subjects.
From a reading of the grounds of the Greek judgment and also of the reported defense deductions that led to the acquittal of the defendant, it is clear that the investigation there was focused on events that took place in Greece and that the doubt as to the existence of the crime that led to the acquittal, was based on the assumption that the victims had stated that they had been picked up and transferred to the port of Patras, bound for Ancona, without being subjected to violence or threats.
The reasoning carried out on this point is, however, entirely generic, with reference to the crime of kidnapping, taking into account that the charge referred to in the acquittal by the Greek judicial authority, for this title of crime, coincides with that of the crime of kidnapping for the purpose of extortion, the subject of the Italian judicial authority's ruling, with reference to the two offended persons (victims no. 7 and 8 of the Greek charge: see p. 8 of Judgment No. 5190 of 2009, concerning 13 kidnappings of Chinese female citizens), to the payment of the sum for release, to the state of deprivation of liberty until the Italian territory.
Moreover, the charge in the proceedings held in Italy relates to concurrence with multiple competitors in the crime, four of which coincide with those indicated in Judgment No. 5190 of 2009, in which the existence of other unidentified competitors is acknowledged.
So, the Execution Judge does not clarify the specific reasons for the exclusion of the identity of the fact, given the found partial coincidence of the competitors in the crime.
Finally, it should be emphasized that for all the facts judged in the Italian proceedings, the special aggravating circumstance referred to in Article 7 of Law No. 203 of 1991, consisting in the fact that the defendant had availed herself of the methods referred to in Article 416-bis of the Italian Penal Code, a conviction upheld on appeal, was contested and recognized by the Court of Assizes.
The sodality described in the Greek measure, according to the Execution Judge, realized the purpose, making use of the force of intimidation stemming from the associative bond, concretized through the representation to the victims and their families that there were international and structured organizations, endowed with significant economic means having the possibility of physical aggression towards family members, in order to place the subjects in conditions of subjugation and omertà.
It should, therefore, be verified by the referring court whether the conduct ascertained in the Italian proceedings, found to be aggravated under Article 7 Law No. 203 of 1991, with respect to the facts ascertained in Greece, also with reference to the crime of extortion is specializing and different from that described and ascertained in the Greek charges. This, regardless of the charge but taking into account the overall connotation of the act committed with the methods set forth in Article 416-bis of the Penal Code.
3.2. The third ground is unfounded.
What is inferred by the appellant is not convincing in relation to Judgment No. 5190 of 2009 because, in that ruling, the contested conduct relating to the illegal entry of persons who were brought to Italy is described, but there is no reference in any part to favoring conduct specific to today's appellant. It is, moreover, typical conduct, different and specific, with respect to the fact that the Chinese nationals, introduced mainly in Italy, were illegally transiting the national territory, as is contested in the Greek charge in Judgment No. 5190 cited above.
So that in this respect, the reasoning offered by the Assize Court as the execution judge appears in substance, to reach an unexceptionable conclusion, albeit through an argument that cannot be shared, namely that of the lack of formal contestation of the crime of aiding and abetting, which, as said in § 2. is not decisive for the purposes of excluding the European bis in idem.
4. It follows from what has been said so far, the annulment of the order under appeal for the referring judge to carry out, n full autonomy as to the outcome, new examination in paticoalre with regard to the conduct of extortion committed against the two Chinese nationals indicated in § 3.
P.Q.M.
annuls the appealed decision with referral for new trial to the Ancona Assize Court.
So decided, June 5, 2024
The Extending Counselor
The President