The notion of “illicit trafficking in narcotic drugs and psychotropic substances” to which the EU framework decisions refer, for example in terms of EAW or mutual recognition of judgments, for the purposes of the list of offenses excluded from verification of double criminality has been the subject of harmonization by the European Union, all ethnic conduct incriminable if committed by their perpetrators solely for the purpose of their personal consumption as defined by the respective national laws remains expressly excluded from the scope of application of the minimum harmonization legislation.
The authority of the executing State is, “in principle”, bound by the assessment made by the authority of the issuing State as to whether the offense for which recognition is sought falls within one of the categories of offenses on the list, except where there is manifest error: the Italian judicial authority is therefore permitted to verify whether the issuing State made a manifest error in filling out the certificate by placing the offense of possession of narcotics for personal use, for which the appellant was convicted, in the category of “illicit trafficking of narcotics and psychotropic substances”.
(Italian unofficial machine translation)
Court of Cassation
Criminal Section VI
judgment 10395/25
(dated 27.2.2025 - filed March 14, 2025)
has pronounced the following
JUDGMENT
on the appeal brought by ** against the judgment of 22/10/2024 of the Court of Appeal of Catanzaro
having regard to the documents, the contested decision and the appeal; having heard the report made by the Judge Ersilia Calvanese;
having heard the requests of the Public Prosecutor, in the person of the Deputy Attorney General Giuseppe Riccardi, who concluded by requesting that the appeal be rejected; having heard the defense attorney, Mr. **, who concluded by requesting that the grounds for appeal be accepted.
HAVING CONSIDERED THE FACTS
1. With the aforementioned sentence, the Court of Appeal of Catanzaro recognized the irrevocable sentences handed down by the German judicial authorities on June 9, 2017 and March 20, 2019 against ** end of the execution in the State of the sentence of 1736 days of imprisonment for the crimes referred to in art. 73 of Presidential Decree no. 309 of 1990.
2. The enforcement of the aforementioned sentences had been requested from Italy with certificates issued by the German Authorities on the basis of framework decision 2008/909/GAI.
3. The defendant's lawyer appealed to the Court of Cassation against the above sentence, citing the grounds for annulment, summarized below in accordance with the provisions of art. 173 of the implementing provisions of the criminal procedure code.
3.1. Violation of the law in relation to art. 11 of legislative decree n. 161 of 2010 and to the principles of framework decision 2002/584/GAI of the Council of the European Union.
It is a proven fact that both recognized sentences concerned the purchase of narcotic substances for personal use.
The Court of Appeal mistakenly decided to recognize the sentences anyway, referring to the list of crimes indicated in framework decision 2002/584/JHA, which includes the crime of “drug trafficking” and for which double criminality is not required.
Indeed, European sources exclude from the notion of drug trafficking, which is criminally relevant, conduct for personal use (see art. 2 EU framework decision no. 757 of 2004).
CONSIDERED IN LAW
1. The appeal is well-founded for the reasons explained below.
2. As also recognized by the Court of Appeal, the convictions for which recognition was requested on the basis of framework decision 2008/909/JHA also concerned the possession of narcotic substances for personal use (specifically only count 1 of the sentence of March 20, 2019 and the crime referred to in the sentence of June 9, 2017). The Court of Appeal decided to proceed with their recognition anyway, as the German authorities had crossed out the item “drug trafficking” in the appropriate section of the certificate, which is one of the 32 categories of crime exempted from the verification of double criminality by the framework decision 2008/909/JHA and by Legislative Decree no. 161 of September 7, 2010. It is hardly necessary to point out that the case in question does not concern the hypothesis examined by the Court of Justice of the European Union on the subject of double criminality of a “single offense” composed of several facts of which only one part satisfies the aforementioned requirement (judgment 14/07/2022, C-168/21, KL), but of autonomous facts.
3. It is appropriate to recall the relevant legal framework for the definition of the question raised by the appellant.
Framework Decision 2008/909/JHA of the EU Council of November 27, 2008, on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union, has excluded in Article 7 the verification by the executing State of the requirement of so-called double criminality for a long list of offenses. Among these is also indicated “illicit trafficking in narcotic drugs and psychotropic substances”.
According to a mechanism common to other European Union instruments on mutual recognition, the framework decision considers it sufficient that the offense for which enforcement is sought, as defined by the law of the issuing State, falls under one of the categories provided for in the list, provided that it is punishable in that State by a prison sentence or a measure depriving the person of his or her personal freedom for a maximum period of not less than three years.
The debate that arose in Italy when implementing the similar provision contained in the first of the mutual recognition instruments, the framework decision 2002/584/GAI of the EU Council of June 13, 2002 relating to the European arrest warrant and the surrender procedures between Member States (art. 2, par.2), is well known.
In implementing the aforementioned framework decision with law no. 69 of 2005, the Italian legislator had in fact deemed it necessary, in order to make it compatible with constitutional principles (first and foremost the principle of legality), to “rework” the list of offenses exempted from the verification of double criminality in order to clarify the meaning of each category with the categorization of relevant conduct, so as to eliminate any doubt or uncertainty of interpretation (art. 8, paragraph 1, of the aforementioned law).
This regulation of the law implementing the European arrest warrant was expressly referred to in Legislative Decree No. 161 of September 7, 2010, which implemented Framework Decision 2008/909/JHA, to regulate exceptions to double criminality (art. 11): “Recognition shall take place, regardless of double criminality, if the offense for which transmission is requested is punishable in the issuing State by a prison sentence or a measure depriving the person of their personal freedom for a maximum period of not less than three years, alone or in conjunction with a fine, and refers to one of the cases referred to in Article 8, paragraph 1, of Law No. 69 of April 22, 2005. In this case, the court of appeal ascertains the correspondence between the definition of the crimes for which transmission is requested, according to the law of the issuing State, and the cases themselves”.
With particular regard to the ‘illicit trafficking of narcotics and psychotropic substances’, art. 8 of the aforementioned law defined this category as: “selling, offering, transferring, distributing, trading, purchasing, transporting, exporting, importing or procuring for others substances that, according to the laws in force in European countries, are considered narcotics or psychotropic substances”.
The overall picture changed with the reform of law no. 69 of 2005 by legislative decree no. 10 of February 2, 2021, which eliminated certain critical issues (as defined in the Explanatory Report) present in the implementing legislation when transposing the principle of mutual recognition.
Among these, the delegated legislator considered the “nationalization” of the regulatory parameter of the regulatory parameter dictated for cases of exclusion of verification of double criminality, which required de facto verification of double criminality in all the cases provided for in the list (the Explanatory Report mentioned, in this regard, the critical remarks made against Italy in the Reports drawn up by the European Commission).
Article 8, paragraph 1, of law n. 69 of 2005 was therefore rewritten, realigning the text with the framework decision by means of a full reference to the aforementioned art. 2, par. 2, establishing the following: “Notwithstanding Article 7, paragraph 1, the European arrest warrant shall be executed regardless of double criminality for offenses which, under the law of the issuing Member State, fall within the categories referred to in Article 2, paragraph 2, of the Framework Decision and are punishable by a custodial sentence or a detention order for a maximum period of at least three years.”
Therefore, following this change, the reference contained in art. 11 of Legislative Decree no. 161 of 2010 to the “offenses referred to in article 8, paragraph 1, of law no. 69 of April 22, 2005” no longer has any autonomous prescriptive relevance.
4. Based on the above, the Court of Appeal, in recognizing the conviction for the purposes of its enforcement in Italy, for the purposes of art. 11 cited above, must refer only to the categories of offense indicated in the list of the framework decision.
It must therefore be clarified which control is the responsibility of the judicial authority of the executing State, once the issuing State - as in the present case - has checked the box on the certificate in Section h), declaring that the offense or offenses of the judgment to be recognized “correspond” to one or more of the categories of offense on the list, exempt from verification of double criminality.
The Court of Justice, with the sentence of October 6, 2021 (C-136/20, LU), has established that the authority of the executing State is, “in principle”, bound by the evaluation carried out by the authority of the State of the decision regarding the question of whether the crime, subject of the measure to be recognized, falls within one of the categories of offenses listed. However, it may challenge this classification in the case of a manifest error (see § 48).
This hypothesis, among other things, has also been reported by the European Commission with reference to the similar question concerning the European arrest warrant, in the practical guide of the Manual of December 15, 2023 (C/2023/1270, published in the OJEU of October 9, 2024, Series C), where it provides that the executing State may detect any “manifest errors” of the issuing State in filling in the form in the section dedicated to the list of offenses. With reference to framework decision 2008/909/JHA, it is then specifically addressed in articles 8 and 11, which provide for the case of a certificate that has not been correctly compiled (i.e. if the certificate does not correspond “manifestly”
to the sentence).
Applying these principles to the case in question, the Italian judicial authority must be considered authorized to verify if the issuing State made a manifest error in filling out the certificate by placing the specific case of possession of narcotics for personal use, for which the appellant was convicted, in the category of “illicit trafficking of narcotics and psychotropic substances”.
4.1. At this point it is necessary to establish the meaning of “illicit trafficking in narcotic drugs and psychotropic substances” as referred to in the framework decisions on mutual recognition, and in particular the relevant one in the case at hand, no. 2008/909/JHA.
The question of this category of crime appears to have an easy solution as it has been the subject of harmonization by the European Union. As the Advocate General noted in his conclusions for the aforementioned case C-136/20, it is a simple operation to establish whether the crime, which is the subject of the measure to be recognized, falls within one of the categories of crime that appear in the list is a simple operation when it concerns “crimes defined in European Union law by minimum standards or which have been the subject of a common approach among member states”. And, among these, he cited precisely “the illicit trafficking of narcotics and psychotropic substances, defined in Article 2 of framework decision 2004/757/JHA”. And in fact the European Union has provided for a “minimum” harmonization for the subject of narcotics with the framework decision 2004/757/GAI of the Council of the European Union, of October 25, 2004, concerning “the establishment of minimum rules relating to the constituent elements of criminal acts and to the applicable sanctions in the matter of illicit drug trafficking” (OJEU of November 11, 2004, L 335, p. 8).
Article 2 of this directive states that each member state shall ensure that certain intentional behaviors are punished when unauthorized, such as: 1) the production, manufacture, extraction, preparation, offering, marketing, distributing, selling, delivering under any conditions, brokering, shipping, shipping in transit, transporting, importing or exporting narcotics (letter a); 2) certain forms of cultivation of narcotic plants (letter b).
As for the possession and purchase of narcotics (hypothesis referred to in letter c), only those acts carried out for the purpose of carrying out one of the activities referred to in letter a) are included, while all the acts described in art. 2, “if they are intended solely for personal consumption as defined by the respective national laws”.
As the Court of Justice clarified in its ruling of June 11, 2020 (C-634/18, RB), the aforementioned framework decision is only a “minimum harmonization” instrument, so that Member States remain free to treat possession for personal consumption as a crime.
It follows that it must be ruled out that the category of “illicit drug trafficking” adopted by framework decision 2008/909/JHA can also include conduct engaged in by perpetrators for personal consumption.
5. In this perspective, the request for recognition and enforcement brought against the appellant can be accepted with the exclusion of those conducts that fall outside the notion of drug trafficking, as indicated above, and that in any case do not correspond to Italian criminal law.
It follows that the contested judgment must be annulled with referral.
It should be noted that the partial recognition of convictions is followed by the mechanism of mandatory interlocutory proceedings provided for in Article 10, paragraph 3, of Legislative Decree no. 161 of 2010: “If the court of appeal considers it possible to proceed with partial recognition, it shall immediately inform the competent authority of the issuing State, including through the Ministry of Justice, and shall agree with it on the conditions for partial recognition and enforcement, provided that such conditions do not result in an increase in the duration of the sentence. In the absence of an agreement, the certificate shall be deemed withdrawn”.
Therefore, in the referral judgment, the issuing authority must be allowed to pronounce on the partial outcome of the recognition for the purpose of the possible withdrawal of the certificate.
The Court Registry shall fulfill the obligations referred to in art. 22, paragraph 5, I. n. 69 of 2005, referred to in art. 12, paragraph 10, of Legislative Decree n. 161 of 2010.
P.Q.M.
Annuls the contested sentence and refers it for a new trial to another Section of the Court of Appeal of Catanzaro.
Sends to the Registry for the formalities referred to in art. 22, paragraph 5, I. n. 69 of 2005.
So decided on 27/02/2025 - March 14, 2025
The Councilor Ersilia Calvanese
The President Gaetano De Amicis