ISSN 2039-1676

28 settembre 2018 |

Overview of Italian Legislation and Case Law on Judicial Cooperation

Contributo pubblicato nel Fascicolo 9/2018

Il contributo è stato sottoposto in forma anonima, con esito favorevole, alla valutazione di un revisore esperto.


Abstract. Italian domestic legislation until 31 October 2017 provided a role of primacy to the International binding instruments such as the European Convention on Mutual Legal Assistance in Criminal Matters, its 1978 first additional protocol, with respect to the rules of the criminal procedural code. The 149/2017 law, amending the rules of the criminal procedural code on extradition and judicial cooperation, while recognizing such role of primacy to International binding instruments, introduced into the criminal procedural code also the principle of mutual recognition of EU judicial authorities decisions and orders, providing that mutual recognition is ruled by the aforementioned law 149/2017 and by the relevant EU legislation as well as by the domestic legislation transposing the relevant EU Framework Decisions and Directives on cooperation in criminal matters. National Courts issued the own decisions by balancing the obligation falling on national authorities to implement the relevant rules on mutual legal assistance and timely execute letters rogatory and as well as orders and decisions issued by EU Member States judicial authorities, with the need to ensure the effective exploitation of the evidence correctly collected through proper cooperation channels and the respect of the fundamental principles and rights as enshrined in the national Constitution and the European Convention on Human Rights. In fact, the decisions issued the Supreme Court led to a solid case law on the legitimate use before domestic courts of the evidence collected in or provided with by foreign Countries and to the identification of further grounds of refusal of legal assistance and extradition other than those provided by the relevant international instruments, so confirming the paramount value of judicial cooperation, but within the respect of such values.

SOMMARIO: 1. Foreword. – 2. The rules on judicial cooperation in the criminal procedural code. – 3. The law 149/2017. – 3.1. Mutual legal assistance pursuant to law 149/2017. – 3.2. Requests of mutual legal assistance addressed to foreign authorities. – 3.3. Extradition pursuant to the 149/2017 law. – 3.4. Transfer of criminal proceedings pursuant to the 149/2017 law. – 3.5. Other relevant provisions in law 149/2017. – 4.0. The procedural framework until 31 October 2017. – 4.1. Letters rogatory addressed by foreign authorities. – 4.2 Letters rogatory addressed to foreign authorities. – 5. The recommendations issued by the Ministry of Justice in 2015. – 6. National case law before law 149/2017. – 6.1. National case law in case of requests of mutual legal assistance addressed to national authorities. – 6.1.1. Jurisdiction of the Constitutional Court. – 6.1.2. Challenges against decisions on admissibility of requests of mutual legal assistance. – 6.1.3. Double criminality. – 6.1.4. Execution of requests of mutual legal assistance. – 6.2. Execution of requests of mutual legal assistance in case of requests of mutual legal assistance addressed to foreign authorities. – 6.2.1. Copies of documents acquired abroad and/or transmitted by the requested country. – 6.2.2. Participation of the accused and of his/her defence counsel. – 6.2.3. Evidence collected abroad. – 6.2.4. Interceptions of communications. – 6.2.5. Evidence spontaneously tendered by foreign authorities. – 6.2.6. Appeals. – 7. Joint investigation teams. – 7.1. EU council framework decision 2002/465/JHA. – 7.2. Bilateral instruments. – 8. Italian legislation transposing relevant European Union instruments on mutual recognition of judicial decisions and orders. – 8.1. Law 69/2005. – 8.1.1. Execution of EAW. – 8.1.2. Domestic judicial authority issuing an EAW. – 8.2. Case law. – 8.2.1. Duties of the court of appeal in the execution of an EAW. – 8.2.2. Double criminality. – 8.2.3. Safeguard of human rights. – 8.2.4. Grounds of refusal. – 8.2.5. Transfer of nationals. – 8.2.6. Appeals. – 8.3. Law 35/2016. – 8.3.1. Legislation of Italy as executing Member State. – 8.3.2. Legislation of Italy as issuing Member State. – 8.4. Law 137/2015. – 8.4.1. Legislation of Italy as executing Member State. – 8.4.2. Legislation of Italy as issuing Member State. – 8.4.3. Confiscation orders issued pursuant to law 159/2011 on preventive measures. – 8.4.4. Other cases of enforcement abroad of confiscation orders issued by domestic courts in proceedings on preventive measures. – 8.5. Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters. – 8.5.1. Law 108/2017 transposing directive 2014/41/EU. – 8.5.2. Italy as executing country of an EIO. – 8.5.3. Italy as issuing country of EIO. – 9. Cooperation with the International Criminal Court. – 10. Conclusions. – 10.1. The change of approach to judicial cooperation in criminal matters. – 10.2. Extension of judicial cooperation to confiscation orders on crime-related proceeds, instrumentalities and property. – 10.3. The role of suspects, accused and other private parties within the legal framework of EIOs and law 149/2017. – 10.4. The added value of the case law.