European Arrest Warrant issued by France rejected: the Court of Appeal of Turin recognizes ne bis in idem

EUROPEAN ARREST WARRANT ISSUED BY FRANCE: THE COURT OF APPEAL OF TURIN DENIES SURRENDER FOR VIOLATION OF "NE BIS IN IDEM"

With a judgment dated May 17, 2018, the Court of Appeal of Turin rejected the request for the surrender of an Italian citizen made by the French Judicial Authority in execution of a European Arrest Warrant (EAW) for crimes committed in 2005, including material falsehood, use of a false document, and working conditions harmful to human dignity.

THE CONTEXT OF THE DECISION

The French proceedings were based on facts analogous to those for which the accused had already been judged in Italy. In particular, the Court of Novara, with a judgment dated February 27, 2018, had acquitted the accused of some crimes (including violations of Legislative Decree 286/98) and had declared the remaining charges (including aggravated fraud ex art. 640 c.p. and falsehood ex arts. 477-482 c.p.) related to the same episodes as the EAW to be extinguished by prescription.

THE REJECTION RULING: SUBSTANTIAL IDENTITY OF FACTS AND THE LIMIT OF NE BIS IN IDEM

The Court recognized that the facts subject to the EAW coincide, from a historical and legal perspective, with those already defined in Italy, applying the principle of ne bis in idem, provided for by art. 18 lett. m) of Law no. 69/2005. According to the jurisprudence of the Court of Cassation, for the purpose of refusing surrender based on the principle of "criminal res judicata", the substantial identity of the fact is relevant, even regardless of the different legal qualification, the plurality of victims, or the requesting authority.

THE REFERENCE TO THE PRINCIPLE OF DOUBLE JEOPARDY AND THE NON-RETROACTIVITY OF THE EAW FOR PRESCRIBED FACTS

The Court also highlighted that the crime subject to the EAW – in the part referring to danger to the life of others – would in any case be prescribed according to Italian law. In such a case, surrender would in any case be precluded, as the execution of the sentence would be contrary to national and supranational principles regarding prescription and substantive criminal law.

AN IMPORTANT PRECEDENT FOR THE PROTECTION OF PROCEDURAL SOVEREIGNTY AND NATIONAL RES JUDICATA

The decision of the Court of Appeal of Turin represents an important jurisprudential ruling that reasserts:

• the prevalence of domestic criminal res judicata over the request for European execution;
• the importance of the principle of European ne bis in idem, as a guarantee of legal certainty and a limit to cross-border procedural duplication;
• Italy's role in ensuring respect for the fundamental rights of the already judged subject, even in the face of warrants issued by foreign authorities.