The Constitution of the Italian Republic defends dissent and punishes the abuse of public power, and therein lies the concreteness of democracy and the liberal state. So much so that when one measures the democratic health of a country, one considers not only the more or less formal exercise of voting, but the effective protection of citizens’ rights from the abuse of power by public officials and the effective guarantee of the freedom to demonstrate, even bitterly, against public power. The Italian government has decided that the abuse of public power is no longer a crime and at the same time has chosen to exacerbate the repression of dissent and social unrest, jumping feet-first on the values of our Constitution.

Law Aug. 9, 2024, no. 114, in Art. 1(1)(b)[1], with a few lapidary words (“Article 323 is repealed”) removed the indispensable center of gravity of crimes against public administration.

The choice of the current legislature results in an impairment of our criminal justice system with respect to the constitutional principles crystallized, first and foremost, in Articles 28 and 97 of the Constitution[2] (in particular with respect to the liability of public officials for acts done in violation of rights and the guarantee of good performance and impartiality of the Public Administration), but also with respect to the principle of equality, the right to defense and compliance with the obligations undertaken by our country in the European context.

The crime of abuse of office, in fact, constituted the highest expression of the criminal norms placed to safeguard the proper use of public power, which in a democratic system finds and must find balance both in the division among the powers of the state and in the limitation of the same and of the possible pathological repercussions on the citizens who do not exercise that power and are instead subject to it.

The negative narrative that has characterized abuse of office over time has originated from real or potential distortions in the application of a rule that was born with a very broad scope and that – over time – has been progressively circumscribed to limit the possibility of “too easy” challenges and to curb the much-cited risk of generating paralysis of public apparatuses, hostage to the well-known “fear of signing.”

In the communication that accompanied the proposal, the figure of numerous acquittals and dismissals against the total number of registered cases was also overstated, which was used to argue for an alleged futility of the case.

To report, as has been done, that in 2021 out of 5,418 proceedings 4,465 ended with dismissal for reasons other than the statute of limitations[3], is extremely misleading: the data published by the Ministry of Justice does not report the years of registration of proceedings and, therefore, it is not possible to assess what their path was and, above all, what the wording of Art. 323 c.p. in force at the time of registration.

In fact, the data on the outcome of proceedings pending in recent years-which, as reported, would almost all have ended without a conviction-is affected by the transition from the old to the new provision, which took place only in 2020: it is very likely (as well as logically evident) that much of the recent acquittals and dismissals stem from the decriminalization of conduct unrelated to the latest formulation of the rule, but which had been contested in proceedings entered before the novelty.

And in fact, the last wording of the rule that was finally repealed was particularly restrictive, allowing very limited room for inquisitorial maneuver, punishing only the conduct of the public official or public service officer who “in violation of specific rules of conduct expressly provided for by law or by acts having the force of law and from which no margin of discretion remains, or by failing to refrain in the presence of his own interest or that of a close relative or in other prescribed cases, intentionally procures for himself or others an unfair pecuniary advantage or causes unjust damage to others.”

It may well be noted that the repealed rule could not in any case lend itself to risks of abuse of interpretative discretion by magistrates, operating in such a circumscribed sphere, a minimum perimeter for the dutiful criminal reprehensibility of the public power’s actions.

In contrast, the case of Art. 323 c.p. stood as a boundary point and bulwark of tightness between legitimately exercised public power and a guarantee for citizens from abuses of the same power, thus allowing judicial control over the public official’s actions, even in the absence of strictly economic components.

Questions of constitutional legitimacy

Other criticism has been advanced in terms of constitutional legitimacy by the Reggio Emilia Public Prosecutor’s Office in the infamous Bibbiano trial,[4] which petitioned the court to refer the case to the Constitutional Court for violation of Articles 3, 24, 97 and 117 of the Constitution.

And in fact, it has been pointed out that the repeal of abuse of office is detrimental to the principle of equality, not overlapping at all with the scope of application of other norms still present in the Criminal Code (as argued by proponents of repeal), but rather constituting an inalienable structural element of the system, without which an unreasonable lacuna is created, a difference in treatment of conduct that is substantially similar in offensiveness, as well as a violation of the supranational obligations assumed by our country.

Regarding the principle of equality (ex art. 3 of the Constitution[5]), the lack of reasonableness of this repeal is immediately apparent when the crime of refusal and omission of acts of office survives in art. 328 of the Criminal Code, which punishes “the public official or the person in charge of a public service, who unduly refuses an act of his office which, for reasons of justice or public safety, or public order or hygiene and health, must be performed without delay.” Where the omission or refusal was determined by the purpose of procuring for oneself or others an unfair pecuniary advantage or causing unfair damage to others, the conduct would fall within the scope of application of the more serious Article 323 of the Criminal Code.

As a result, of two related conducts the one of greater disvalue is elided.

At the same time, while the wrongful refusal or omission of an official act is still punished, the wrongful commission of an official act contrary to specific rules of conduct has instead become criminally irrelevant.

Similar reasoning comes to light with respect to the offenses under Articles 353 and 353 bis of the Criminal Code (respectively, disruption of the freedom of invitations to tender and disruption of the freedom to choose a contractor)[6].

Both rules protect the freedom of choice procedures, the former by intervening downstream of the start of the bidding process (protecting distortions in the application of calls for bids) and the latter upstream, when manipulations for customized calls for bids take place.

The moment a notice is not there or should not be there (from an internal procedure to private contracting in the area of direct awarding), there would be no protection against the abuse of power of the public official or public service appointee in the manner in which he or she chooses his or her contractor, in defiance of – for example – the rules from which there is no residual margin of discretion present within the Procurement Code.

What is more, with respect to the aforementioned Article 97 of the Constitution, the removal of criminal protection in relation to abusive and prevaricating conduct of the public official would leave the aggrieved private party (and only where there is one) with only remedies in the administrative courts.

Another non-secondary element of vulnerability, as mentioned, is the peculiar characteristic of abuse of office, which was the only norm that protected the citizen from the deviant behavior of the official regardless of the presence of the economic datum. The private individual’s right of defense(pursuant to Article 24 of the Constitution[7]) would thus be limited, and he would no longer be able to assert – in the face of conduct marked by a strong disvalue (otherwise sanctioned in the presence of economic benefits or damages) – his legitimate rights and interests.

Italy’s international obligations

Moreover, the repeal of abuse of office conflicts with Italy’s international obligations and, consequently, with the dictate of Art. 117 of the Constitution[8].

And on this point, based on the jurisprudence of the Constitutional Court,[9] there would be little obstacle to an in malam partem intervention with re-expansive effects of the repealed rule.

In fact, our country has ratified the United Nations Merida Convention (of 2003) against corruption, and in particular has taken on the obligation to work “in accordance with the fundamental principles of its domestic law to adopt, maintain and strengthen systems that promote transparency and prevent conflicts of interest.”[10].

This alone would be enough to see an irremediable contrast with the latest repeal, but there is more, because in Art. 19 of the ratification law, under the heading “abuse of office,” the commitment to consider “the adoption of the legislative and other measures necessary to confer the character of a criminal offense, when the act was committed intentionally, to the act for a public official to abuse his functions or his position, that is, to perform or refrain from performing, in the exercise of his functions, an act in violation of the laws in order to obtain an undue advantage for himself or another person or entity.”

Most recently then, in 2022, abuse of office had been included within the crimes covered by Art. 322 bis c.p., by which numerous offenses against public administration are extended to members of international courts or bodies of the European Communities or international parliamentary assemblies or international organizations and officials of the European Communities and foreign states [11].

And this is in order to implement EU Directive 2017/1371 on the fight against fraud affecting the financial interests of the Union through criminal law[12]; holding, therefore, that it was necessary to extend to this obligation assumed in the European context the protection offered by Art. 323 c.p., which within art. 322 bis c.p. has now been replaced by art. 314 bis c.p. (misappropriation of money or movable property, so-called embezzlement by diversion), which is of lesser scope and whose conduct, prior to its express reintroduction in the Criminal Code, was punishable precisely through the rule of abuse of office.

In the future perspective, moreover, there will also be a problem with the proposed European directive “on combating corruption, replacing Council Framework Decision 2003/568/JHA and the Convention on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union, and amending Directive (EU) 2017/1371 of the European Parliament and of the Council.”[13].

In Recital no. 13, in fact, the proposal notes that ” the crime of abuse of office in the public sector should also be defined as the omission of an act by a public official, in violation of the law, in order to obtain an undue advantage. To comprehensively combat corruption, this directive should also cover abuse of office in the private sector “.

Next, the text includes a specific article titled “abuse of office” that requires member states to punish, when intentional, ” the performance or omission of an act, in violation of law, by a public official in the performance of his duties in order to obtain an undue advantage for himself or a third party;” as well as ” the performance or omission of an act, in violation of a duty, by a person who in any capacity performs managerial or employment functions for a private sector entity in the course of economic, financial, entrepreneurial or commercial activities in order to obtain an undue advantage for himself or a third party.”

At the time of the drafting of the proposal, among other things, it was found that the 25 states that participated in the drafting (Denmark and Bulgaria the absent members) already had the crime of abuse of office in their legal systems.

Finally, the European Commission’s Rule of Law Report 2024.[14], in response to Italian arguments in favor of repealing Art. 323 c.p., stated that ” the criminalization of abuse of office and trafficking in unlawful influence is provided for in international conventions on corruption and is therefore an essential tool for law enforcement and prosecutors’ offices in the fight against corruption. Stakeholders have noted that the repeal of the crime of abuse of office could result in decreased levels of detection and investigation of fraud and corruption “.

The repression of dissent

At the same time, while the legislature is concerned about “power paralysis,” with the latest security measure passed by the House and under consideration by the Senate (DDL no. AC 1660-A [15]), there is an exacerbation of the criminalization of forms of expressing dissent against that same power.

And in fact, the narrative of the risk of pan-penalism as a justification for expunging abuse of office from our legal system stands in stark contrast to the constant broadening of the criminal orbit regarding the manifestation of dissent and social unrest. In particular, the new urban security provisions crack down with unusual detail and pervasiveness on a set of offenses, introducing, aggravating and anticipating the punishability of many conducts attributable to modes of expressing dissent: symbolic occupation of public land, obstruction of free movement on the street, tightening of penalties for resisting a public official, defacement of public buildings “for the purpose of harming the honor, prestige or decorum of the institution,” the introduction of the crime of rioting inside a penitentiary institution and equal discipline with respect to detention and reception facilities for migrants, where any form of even passive disobedience is considered rioting.

Reading the text of the bill, one seems to be able to visualize, like a stop-motion movie, all the news cases of recent years that have highlighted social unrest and thrusts of dissent of various kinds. Such hardships, instead of being the recipients of judicious management oriented toward an examination of causes and a lucid vision of the future, are thus met with the repressive, disheveled and almost stymied reaction of absolute and unquestioning power. The same power that apparently does not feel that it is deserving of judicial scrutiny and limitation (the crime of abuse of office) to its actions.

So, on the one hand, power is loosed from binds to feel freer to “do,” and a tool for citizens to counter its abuse is taken away from them; on the other hand, the same citizens are discouraged from expressing forms of opposition to power, increasing the risk of seeing their conduct fall more easily (and more severely) into the pool of the criminally relevant: legalization of abuse and criminalization of dissent.

Prof. Avv. Roberto De Vita

 

 

References

[ 1] https://www.gazzettaufficiale.it/eli/id/2024/08/10/24G00122/SG [2] Art. 28: ” Officials and employees of the state and public agencies are directly liable under criminal, civil and administrative laws for acts done in violation of rights. In such cases, civil liability extends to the state and public entities .” Art. 97: “Public administrations, consistent with European Union law, shall ensure the balance of budgets and the sustainability of the public debt.Public offices shall be organized in accordance with provisions of the law, so that the good performance and impartiality of the administration are ensured.In the organization of the offices, the spheres of competence, powers and responsibilities proper to officials are determined.Employment in public administrations shall be by competitive examination, except in the cases established by law.” [3] See, among others, F. Boschi , Abuse of office, the numbers of a crime that does not hold up, Il Giornale, 13.01.2023; C. Guasco, Justice reform, for abuse of office 80% of filings. , The Messenger, 06/18/2023. [4] Read the brief filed by the Reggio Emilia Prosecutor’s Office . [5] Art. 3: “All citizens have equal social dignity and are equal before the law, without distinction of sex, race, language, religion, political opinion, personal and social conditions. It is the duty of the Republic to remove obstacles of an economic and social nature, which, by effectively limiting the freedom and equality of citizens, prevent the full development of the human person and the effective participation of all workers in the political, economic and social organization of the country .” [6] Article 353 of the Criminal Code: “Anyone who, by violence or threat, or by gifts, promises, collusion or other fraudulent means, prevents or disrupts the bidding in public auctions or private bidding on behalf of public administrations, or turns away bidders, shall be punished by imprisonment from six months to five years and a fine from 103 to 1,032 euros.

If the culprit is a person in charge by law or authority of the aforementioned auctions or bidding, imprisonment shall be from one to five years and a fine from 516 euros to 2,065 euros.

The penalties set forth in this article shall also apply in the case of private bidding on behalf of private individuals, directed by a public official or legally authorized person; but shall be reduced by half.” [7] Art. 353 bis of the Criminal Code: “Unless the act constitutes a more serious crime, anyone who with violence or threats, or with gifts, promises, collusion or other fraudulent means, disrupts the administrative procedure aimed at establishing the content of the notice or other equivalent act(2) in order to condition the manner in which the public administration chooses a contractor shall be punished by imprisonment from six months to five years and a fine from 103 to 1,032 euros.” [7] Art. 24: “Everyone can take legal action to protect his or her rights and legitimate interests. Defense is an inviolable right at every stage and level of proceedings. Means for acting and defending oneself before every jurisdiction are ensured to the indigent through special institutions. The law determines the conditions and methods for the redress of miscarriages of justice .” [8] Art. 117: “Legislative power is exercised by the state and the regions in compliance with the Constitution, as well as with the constraints arising from the Community order and international obligations. (…)” [9] Const. court no. 8 of 18.01.2022; Const. Court no. 37, 06.03.2019. [10] See Law 116/2009 – Ratification of the Merida Convention. [11] Art. 322 bis c.p.: “The provisions of Articles 314, 314-bis, 316, 317 to 320 and 322, third and fourth paragraphs, also apply to: 1) to members of the Commission of the European Communities, the European Parliament, the Court of Justice and the Court of Auditors of the European Communities; 2) to officials and servants employed by contract under the Staff Regulations of Officials of the European Communities or the Conditions of Employment of Servants of the European Communities; 3) to persons seconded by the Member States or any public or private entity to the European Communities, who perform functions corresponding to those of officials or agents of the European Communities; 4) to members and employees of bodies established on the basis of the Treaties establishing the European Communities; 5) to persons who, within other member states of the European Union, perform functions or activities corresponding to those of public officials and persons in charge of a public service; 5-bis) to judges, the prosecutor, assistant prosecutors, officials and agents of the International Criminal Court, persons seconded by the states party to the Treaty establishing the International Criminal Court who perform functions corresponding to those of officials or agents of the Court, members and employees of bodies established on the basis of the Treaty establishing the International Criminal Court 5-ter) to persons exercising functions or activities corresponding to those of public officials and public service officers within public international organizations; 5-quater) to members of international parliamentary assemblies or of an international or supranational organization and to judges and officials of international courts 5-quinquies) to persons performing functions or activities corresponding to those of public officials and persons in charge of a public service within non-EU states, when the act offends the financial interests of the Union. The provisions of Articles 319-quater, second paragraph, 321 and 322, first and second paragraphs, shall also apply if the money or other benefit is given, offered or promised: 1) to the persons specified in the first paragraph of this Article; 2) to persons performing functions or activities corresponding to those of public officials and public service officers within other foreign states or international public organizations. The persons specified in the first paragraph shall be assimilated to public officials, if they perform corresponding functions, and to persons in charge of a public service in other cases.”

[12] Directive (EU) no. . [13] Proposal no. . [14] See, in particular, Chapter on the Situation of the Rule of Law in Italy. [15] See Text of the bill and Preparatory work on the bill.

The latest Global Law and Order Report [1] compiled by analysis and consulting firm GALLUP offers a worldwide snapshot of the level of security perceived by citizens in all countries. At the national level, however, as will be seen below, some of the latest data collected by ISTAT allow for a more detailed observation to understand the evolution of some common concerns about citizen security.

The questions submitted by GALLUP to the more than 1,000 respondents for each country are as follows:

1. In the city or area where you live, do you trust the local police force?
2. Do you feel safe walking alone at night in the city or area where you live?
3. In the past 12 months, has money or property been stolen from you, or has it happened to another member of your family?
4. In the past 12 months, have you been assaulted or robbed?

The main results

The world score was 83 out of 100, unchanged from the previous report. Tajikistan scored the highest with 96, while Liberia scored the lowest with 49.

Globally, 72 percent of people trust local law enforcement. This indicator showed improvements in regions such as South Asia (with a 6-point increase), with India leading the increase in trust.

Regarding perceived safety on a daily basis, 71 percent of the world’s population reported feeling safe walking alone at night. Kuwait, Singapore and Tajikistan are among the safest countries, while Liberia, Myanmar and Lesotho rank among the least safe.

Compared to reported crime rates, about 12 percent of respondents reported theft of property, while 6 percent had experienced assault or robbery. Crime reached higher levels in Liberia and Sierra Leone, where more than half had experienced theft.

Analysis and trends

Sub-Saharan Africa and Latin America/Caribbean continue to face serious security problems, although Latin America has shown signs of improvement. In contrast, regions such as post-Soviet Eurasia have seen a steady increase in their scores, despite the ongoing conflict between Russia and Ukraine.

GALLUP’s study notes that in most economically developed countries and territories with a strong rule of law, the majority of residents feel safe walking alone at night. The same is true in countries where the population is subject to particularly strict state control. For example, in 2022, these impressions were reported at very high percentages in states such as Kuwait (96 percent), Singapore (95 percent), Tajikistan (93 percent), the United Arab Emirates (91 percent) or Saudi Arabia (90 percent).

In this picture, Italy ranks 38th (84 percent) tied with Armenia, Belgium, El Salvador and Hungary.

Perceived safety in Italy: data from ISTAT

The Gallup Report does not show the percentage of responses by individual question on perceived safety in Italy; however, it is possible to delve into the Italian scenario and the most interesting data through the most recent ISTAT surveys [2].

The perception of crime risk in our country averages 23.3 percent, rising 1.4 points from 2022.

Predatory crimes (residential burglaries, burglaries, robberies) also increased, registering a steady upward trend after decreasing due to the particularity of the year 2020.

Only residential burglaries have not yet reached pre-pandemic levels (10.4‰ of households), standing at 8.3‰[3].

In 2023, the share of people aged 14 and older who say they are very or fairly safe when walking in the dark alone in the area where they live has grown in recent years to 62.0 percent; in 2019 that figure stood at 57.7 percent.

However, this figure is the result of the average between the responses of men and women, which differ widely: over 70% for men and just over 50% for women.

Finally, with respect to violence and stalking, the ISTAT study, among other data, highlights the growth in the use of the public utility number 1522. In 2023, valid calls grew by 59.5 percent, which is not indicative of the statistical trend of violence in Italy, but of the increased effectiveness of information campaigns, which reach more and more people from year to year.

The importance of raising awareness is underscored by a trend common to all years reported in the study: from late November there is an increase in daily calls, which double or triple compared to the rest of the year, probably corresponding with the information campaigns accompanying the International Day Against Violence Against Women on November 25.

 

 

 

References

[1] Download the report here. GALLUP results are based on nationally representative samples selected through probabilistic methods from the adult population, 15 years and older, in 141 countries and territories during 2022. The 2022 data were collected through telephone surveys or in-person interviews, with approximately 1,000 or more respondents in each country. The global estimate also includes 2021 data from China. [2] BES Report 2023, Chapter 7 – Security. [3] Crime data are the result of processing on data from complaints to law enforcement agencies (Ministry of the Interior) and the survey conducted by ISTAT on Citizen Security.

In the recent order no. 27104 of 12.07.2024, the Sixth Criminal Section of the Supreme Court referred to the United Sections the decision as to whether it is possible to appeal the judge’s order by which the request for an evidentiary hearing is rejected, if it concerns the testimony of a victim of mistreatment or other crime provided for in Art. 392, paragraph 1 bis of the Code of Criminal Procedure. This is a special hypothesis, introduced with the intention of preserving not only the genuineness of the account but, above all, the psycho-physical integrity of the victim, avoiding the stress of repeating the lived experience several times. However, the procedural rules do not at present provide for the possibility of appealing the judge’s decision, and the Supreme Court is called upon to resolve the contrast that has arisen in jurisprudence, which is currently attested to two opposing positions.

The regulatory framework

The institution of the evidentiary hearing allows for the taking of adversarial evidence as early as the preliminary investigation stage, when it is not possible to postpone this activity to the trial. The means of evidence and the cases in which this can be done are exhaustively indicated by Art. 392 of the Code of Criminal Procedure and concern, in brief: the testimony and confrontation of the declarant who will not be able to testify at the trial due to a serious impediment (e.g., an illness) or when he or she is exposed to violence, threats or offers of money so that he or she does not testify or gives false testimony; the examination of the person under investigation on facts concerning the responsibility of others, the examination of persons under investigation in related proceedings former Art. 210 of the Code of Criminal Procedure or of witnesses of justice; expert opinion or judicial experiment on things, persons or places subject to unavoidable change; reconnaissance that cannot be postponed to the trial for reasons of urgency; expert opinion that would entail a suspension of the trial for more than 60 days or that relating to investigations or sampling of living persons.

In addition to these cases, pursuant to Paragraph 1a of Art. 392, it is possible to request the taking in an evidentiary incident of the testimony of a minor or adult person – even in the absence of the requirement of a serious impediment or the other cases of non-referability provided for in paragraph 1 – when it comes to proceedings for crimes of mistreatment, slavery, pornography, sexual violence and persecutory acts[1] and, in any case, when the offended person is in a particularly vulnerable condition. The legislator’s intent is twofold, wanting first of all to allow immediate verification in terms of the credibility and reliability of the offended person’s statements when the passage of time has not yet affected his or her memories but, above all, to reduce the discomfort for the victim who will have to expose herself and reiterate her experience (thus reliving the same pain) at trial.

The request can be made either by the prosecutor (also at the request of the offended person) or by the suspect, however, the order by which the judge decides (in terms of acceptance, inadmissibility or rejection) is not subject to appeal but only to the remedy of appeal to the Supreme Court (which can be exercised, however, only in cases of an act deemed abnormal).

The facts behind the order

The public prosecutor at the Termini Imerese Court appealed the decision of the Gip that had rejected his request for a special evidentiary hearing, aimed at taking the testimony of a woman victim of abuse, requesting that it be annulled without referral for “functional abnormality” of the measure. According to the prosecutor, in fact, the judge had merely ruled out the offended person’s vulnerability ” on the basis of her age of majority and the fact that she had already filed other complaints against the suspect, without, however, indicating the reasons that prevailed over the needs for the protection of the victim and anticipation of the evidence and, above all, without considering what was represented in the request for an evidentiary incident regarding the victim’s condition of psychological dependence (also as a result of the recent childbirth) and the circumstance relating to the previous remittance of the complaint by the offended person, who had returned to live with the suspect and suffer abusive behavior.”[2].

The question submitted to the Court concerns the limits of the judge’s review and the possible flaws arising from the illegitimacy of his decision: and in fact, in the absence of a specific provision regarding the appealability of the order rejecting the request for an evidentiary hearing, the only remedy available is the appeal to the Supreme Court, whose admissibility is, however, subject to the configurability or otherwise of an abnormal act.

The United Sections have recently intervened on the general topic of abnormal act,[3] but on the issue of the order rejecting the request for an evidentiary accident in the case of testimony of victims of abuse, child or vulnerable person, two different positions have been formed.

According to a first orientation, considered to be the majority, it is up to the judge to decide on the merits of the petition, balancing on the one hand the victim’s protection needs and, on the other hand, the procedural guarantees of the defendant’s right of defense; in this sense, the choice of not providing for the appealability of the rejection order would fall within the legislator’s sphere of discretion and would not determine any risk of friction with international normative sources (Article 35 of the Lanzarote Convention; Article 18 of the Istanbul Convention; Articles 18 and 20 of Directive 2012/29/EU). Although from the latter norms emerges the primary interest in the adoption of measures aimed at limiting the victim’s hearings (e.g., through the provision of specific forms of caution, such as video recording and precautions to safeguard the vulnerable individual), “it cannot be made to derive ex se the provision of any evidentiary automatism linked to the introduction of a real obligation on the part of the judge to order the taking of declarative evidence from the vulnerable offended person following the mere submission of a request for an evidentiary hearing.” According to this orientation, in fact, from the compulsory taking of the evidentiary hearing could achieve a result that is disproportionate to the purpose pursued by the rule of protecting the personality of the vulnerable person, in cases, for example, in which the excision proves to be irrelevant or superfluous “because the evidence has been reached aliunde or when the victim’s condition, by reason of criminal conduct or other reason, discourages the immediate taking of testimony at the investigation stage.”[4] Finally, the very literal tenor of Art. 398 paragraph 1, in providing for three different types of decision (acceptance, inadmissibility or rejection), would exclude a priori the obligatory nature of a positive measure in the face of the request made by the parties.

On the basis of these arguments, therefore, the abnormality of the rejection order in the case of examination of the minor offender of the maltreatment offence was ruled out because of the modesty of his declaratory contribution, the sufficiency of the investigative evidence gathered and the “prejudicial” nature of his hearing in the event of an evidentiary hearing[5]; it was equally reasoned in the case[6] of the adult offender of the crime of persecutory acts whose vulnerability was ruled out because of his age, social integration and the reaction opposed to the criminal conduct by filing the complaint; again, in the case of the offended person of the crime of sexual violence committed against her by a relative when she was still a minor, whose vulnerability was ruled out because she had become of age, was included in a “structured” family that had broken off relations with the abuser, and because of the manner of the abuse, which consisted of touching in the presence of third persons[7]; lastly, in the case of a minor witness to the crime of persecution committed by the father against the mother[8].

A different orientation argues that international sources aimed at protecting victims and family members from secondary and repeated victimisation (in particular, through specific measures such as hearing the victim without undue delay, limiting the number of hearings and their audiovisual recording), “involve the compulsory admission of the incident of evidence in order to safeguard the physical and psychological integrity of the vulnerable subject and to limit the risk of secondary victimisation linked to the repetition of the investigative act“[9]. Therefore, there would be ” a real obligation on the part of the judge to admit the evidentiary accident aimed at taking the testimony of a vulnerable person under paragraph 1a of Art. 392, being able to reject the request only if the normatively configured conditions that legitimize the anticipation of the investigative act are lacking ” (e.g., in the case of a request made by a person who is not eligible, for offenses other than those stipulated in the rule, or for the examination of a person who is not a minor or not vulnerable).

This would be confirmed by the fact that the rule provides for the taking of evidence “even outside the cases provided for in paragraph 1” of Art. 392, without indicating any further prerequisites. According to this approach, therefore, the legislature would have provided as ordinary (and no longer limited to exceptional and peremptory cases) the taking of evidence in an evidentiary incident for a specific category of crimes, also in order to conform domestic law to the obligations arising from international sources and “toavoid phenomena of secondary victimization, considering said interest to prevail over the general principle according to which evidence is formed in a trial, so that it would not be reasonable to invoke the latter value, of an exquisitely procedural nature, in order to sacrifice the former, of a substantive nature and judged to be pre-eminent.” [10].

According to this approach, moreover, there would be no conflict with the provision of Art. 398 paragraph 1 of the Code of Criminal Procedure, since it would conform to the “vocabulary usually used” by the legislature also in other rules that highlight the trial parties’ potestative right to evidence, so that ” In the case provided for in Articles 392, paragraph 1 – bis and 398, paragraph 1, Code of Criminal Procedure. Penal Code, the general principle applies according to which, in the face of the right to evidence at the request of a party, there is an obligation of admission by the judge who has the possibility of excluding only evidence prohibited by law and that which is manifestly superfluous or irrelevant, a hypothesis, this, which, in the case under consideration, has almost no scope of application “.

On the basis of these arguments, the judge’s order rejecting the request for an evidentiary incident to take the testimony of the minor offender, suffering from “emotional and behavioral disorder,” who was the victim of the crime of sexual assault committed by her support teacher, was deemed abnormal[11], based on the arbitrariness of the reasoning employed. In another case, recalling the principles already expressed by the SS.UU. in Judgment 25957/2009, the judge’s rejection measure to take the testimony of a victim of sexual violence on the basis of the lack of urgency was considered abnormal, given that this assumption would only apply to the cases referred to in paragraph 1 of Art. 392 and not also for the specific ones identified in paragraph 1-bis: “the rejection measure, motivated with reference to reasons that are relevant in the different and specific cases contemplated by the first paragraph, results in the substantial disapplication, in the absence of a power expressly provided for by law, of a general rule of taking evidence provided for in compliance with obligations undertaken by the State in international fora.” [12].

In another pronouncement[13], the rejection of the request for the taking of testimony from victims of persecutory acts was considered abnormal, based on the finding that this crime was absorbed into the additional charged crimes of robbery and extortion, which would not have allowed the anticipation of testimony: in such a case, since the request concerned a “vulnerable” person, the margin of discretion reserved for the judge “does not extend to the assessment of the vulnerability of the witness, presumed ex lege, but is limited, on the basis of the rationale of the institution, to the assessment of the existence of the reasons justifying the anticipation of the evidence as a function of the protection of the victim from the trauma of the trial and/or the genuineness of the evidence itself“. Therefore, whenever the rejection order does not contain adequate reasons (or this is only apparent) for the reasons that prevail over the need to anticipate the taking of evidence, this is to be considered abnormal since it is an expression of an arbitrary exercise of the discretion granted to the judge by the legislature.

The position of the referring judges

Reconstructing the two different orientations, the Court inclines toward the latter on the basis of multiple arguments. First, according to the College, there are ” clear normative indications of the non-existence of a discretionary power to reject the request for “special” evidentiary incident provided by the first sentence of paragraph 1- bis of Art. 392 as opposed to the “ordinary” one typified in the first paragraph “.

The peculiar institution of the evidentiary incident, introduced with the 1988 code, has been subject to multiple amendments since 1996, where paragraph 1a was inserted to regulate a new hypothesis – defined by the Constitutional Court[14] as “atypical” or “special”-because it is freed from the ordinary prerequisite of the non-referral of evidence to the trial and, more generally, from the need for one of the conditions peremptorily provided for in the first paragraph of Art. 392.

The original hypothesis, which was limited to the testimony of the child under 16 in proceedings for crimes of sexual violence even outside the cases of the first paragraph, was already aimed at “protecting the personality of the child, enabling him or her to get out of the court circuit as soon as possible in order to help him or her get rid of the psychological consequences of the lived experience more quickly.”

Subsequent interventions[15], in compliance with Italy’s international obligations, have led to two immediate consequences: on the one hand, they broadened the perimeter of applicability of the case envisaged by the first sentence of paragraph 1 bis, with reference both to the catalog of crimes initially envisaged in 1996, and to the subjective perimeter of the testimonial evidence, extended to the testimony of the minor person (and no longer only of the infra-sixteen year old) and of the adult offended person; on the other hand, a second hypothesis of an “atypical” evidentiary incident was provided for, in which it is allowed, “in any case” and without any reference to the type of crime for which one is proceeding, the taking of the testimony of the offended person, when his or her condition of “particular vulnerability,” as defined by Art. 90 quater c.p.p. [16].

The Constitutional Court itself, which has been called upon several times to rule on the legitimacy of such provisions, has confirmed in the various legislative amendments that have followed one another over time“the desire to prepare a more effective system to support victims, facilitating their involvement in the emergence and investigation of criminally relevant conduct” (see Constitutional Court, Judgment No. 1 of 2021), as well as the “twofold rationale underlying this regulatory provision, one, external to the trial, of protecting the victim’s personality, and the other, endoprocessual in nature, of protecting the genuineness of the evidence” (cf. Constitutional Court, No. 14 of 2021).

The rule in question, therefore, pursues a twofold need, both to protect the witness, whether a minor or an adult offended person, from the so-called secondary victimization associated with the postponement or reiteration of hearings during the course of the trial, and to protect the evidence from risks related to the possible pollution of previous statements or their retraction[17].
Peraltro, sempre secondo i Giudici costituzionali, tale duplice finalità “se da un lato sorregge la disposizione censurata e il sistema normativo in cui essa si inserisce, dall’altro lato non fa tuttavia venir meno la sua già richiamata natura eccezionale, poiché essa, nel momento in cui consente l’ingresso di contenuti testimoniali in una fase antecedente a quella dibattimentale, sulla base, peraltro, di una presunzione di indifferibilità e di non rinviabilità di essi in ragione della natura dei reati contestati e della condizione di vulnerabilità dei soggetti da audire, introduce una deroga al principio fondamentale di immediatezza della prova“.

On the basis of these considerations, the referring panel considers that the first sentence of paragraph 1a of Art. 392 contains a real “presumption of vulnerability” of the victims of the specifically listed crimes, which does not allow for any discretionary assessment of the judge.

Discretion to which, on the other hand, is referred the assessment about the condition of “particular vulnerability” of the offended person, provided for in the second sentence of paragraph 1a, to be carried out in light of the criteria provided for in Art. 90 quater c.p.p..

For both hypotheses introduced by paragraph 1 bis, the additional presumption of non-deferrability of evidence would be in force since – unlike what is provided for the “ordinary” hypotheses of evidentiary accident – no assessment is required regarding the presence of serious impediments, infirmity, threats, etc., being able to expressly request the evidentiary accident “even outside the hypotheses provided for in paragraph 1.” According to the referring judges, “this solution also finds its foundation in reasons of a metagiuridical nature, related to the particular exposure of the vulnerable offended person to the incidence of multiple factors of a temporal, psychological nature (such as, for example, the difficulty of recalling events with a high emotional impact, the sedimentation of psychological patterns of removal or self-defense or, even, of self-blame and, ultimately, of alteration of the distribution of victim-role in the re-enactment of the fact), or relational (think of the high level of conflict with the suspect/defendant), which can result in forms of cognitive distortion (from the full retraction of statements initially made to their modification now “by reduction” now “by addition”)[18].

Ultimately, the special guarantees established for the conduct of the evidentiary incident (the cross-examination of the parties, the forms of the trial, the possibility of the request coming from the suspect himself) would allow full respect for the rights of defense and to a fair trial enshrined in both the Constitution and supranational sources.

The approach defined and argued by the referring judges – should it be accepted by the Supreme Court in United Sections – would, in the opinion of the writer, contribute to defining and consolidating the original objective pursued first by the supranational legislator and then by the national legislator, without, however, affecting the guarantees and rights of the person under investigation. And in fact, through the well-defined mechanism of the evidentiary incident, it would be possible to protect the victim from the now proven risk of secondary victimization caused by the need to relive the trauma suffered several times, through repeated recounting on several occasions, especially when this concerns minors or people who are particularly vulnerable due to the seriousness of the crime perpetrated; at the same time, this would in any case guarantee the suspect the acquisition of genuine declarative evidence, neither altered nor polluted, in full respect of the adversarial process between the parties and due process.

 

Prof. Avv. Roberto De Vita
Avv. Valentina Guerrisi

References

[1] Articles 572, 600, 600a, 600b, 600c even if related to pornographic material referred to in Article 600c.1, 600d, 601, 602, 609a, 609c, 609d, 609g, 609j, and 612a of the Criminal Code. [2] Cf. Ord. 27104 cited above. [3] Cass. SS.UU., 13.07.2023, no. 42603, El Karti. [4] Cf. Ord. 27104 cit. [5] Cass. Sez. VI, 15.07.2020 no. 24996; conf. Cass. Sez. VI, 28.10.2021, no. 46109. [6] Cass. Sez. I, 08.06.2023, no. 46821. [7] Cass. Sez. III, 28.05.2021, no. 29594. [8] Cass. Sez. V, 11.12.2020, no. 2554. [9] Cf. Ord. 27104 cited above. [10] Cf. Ord. 27104 cit. [11] Cass. Sez. III, 10.10.2019, no. 47572. [12] Cass. Sez. III, 05/16/2019, no. 34091. [13] Cass. Sez. II, 24.03.2023, no. 29363. [14] Const. court no. 92 of 2018. [15] Law Oct. 1, 2012, no. 172 of ratification and execution of the Council of Europe Convention for the Protection of Children against Sexual Exploitation and Sexual Abuse, done at Lanzarote on October 25, 2007; Law June 23, 2013, no. 77 of ratification and execution of the Council of Europe Convention on preventing and combating violence against women and domestic violence, signed in Istanbul on May 11, 2011; Legislative Decree. Dec. 15, 2015, no. 212 implementing Directive 2012/29/EU of the European Parliament and of the Council of October 25, 2012 establishing minimum standards on the rights, support and protection of victims of crime and replacing Framework Decision 2001/220/JHA. [16] “For the purposes of the provisions of this code, the condition of special vulnerability of the offended person is inferred, in addition to age and the state of infirmity or mental deficiency, from the type of crime, the manner and circumstances of the act for which proceedings are being taken. In assessing the condition, account shall be taken of whether the act is committed with violence to the person or with racial hatred, whether it is related to areas of organized crime or terrorism, including international terrorism, or human trafficking, whether it is characterized by purposes of discrimination, and whether the offended person is affectively, psychologically or economically dependent on the offender.” [17] Cf. Const. court no. 14 of 2021. [18] Cf. Ord. 27104 cit. [19] Download the text of the ordinance here.

After more than 20 years of criminal trial battles in Italy and abroad, academic commitment and research , attorney Roberto De Vita (LL.M. Cambridge) has been admitted to the List of Counsel before the International Criminal Court (ICC) of The Hague, where the entire DEVITALAW Firm will continue its efforts to protect the fundamental rights of defendants and victims in the most complex cases of genocide, crimes against humanity and war crimes.

The Court

The International Criminal Court (ICC) investigates and tries individuals charged with the gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity and the crime of aggression.

The Court is participating in a global fight to end impunity through international criminal justice and aims to hold those responsible accountable for their crimes, to help prevent these from happening again.

The jurisdiction of the International Criminal Court complements those of national Courts. The Court is governed by an international treaty, the Rome Statute, and it is the world’s first permanent international criminal court.

To read more, click here.

Prof. Avv. Roberto De Vita ‘s speech at the presentation of the Generative Artificial Intelligence Learning and Innovation Hub (GAILIH) Observatory on July 2, 2024, in the session on “The Challenges of Artificial Intelligence and Italian and European Regulation,” moderated by I-com President Dr. Stefano da Empoli.

Stefano da Empoli: I would take advantage of criminal law expertise but not only – you have also been involved in digital for many years – to ask Avv. De Vita what are the profiles of interest of the application of generative artificial intelligence in law enforcement and what risks and problems it poses.

Roberto De Vita: Thank you all. I make first a point, not to attribute to myself an authority that I do not have, lest we precipitate only within the important, but narrow nobility of character I judge in these reflections.

I have been directing Eurispes’ first Italian Cybersecurity Observatory for 13 years, and it has been as many years maybe a few less than that that I have the national chair of security for new technologies for the Guardia di Finanza, at the School of Economic-Financial Police, where what is done is to study the application potential, the application actuality, both bad and good side, as well as the regulatory framework . This introduction to say that the issue of combining the two dimensions is complex, and I’ll answer Stefano da Empoli’s question right away.

The bad guys already make great use of all things digital. Take for example the applications of generative artificial intelligence on the whole world of cryptography. The bad guys use cryptography, actually we all use it, we protect our communications, we keep our storage in confidentiality, so cryptography is part of the relationship tools, of protecting information, whether it’s the bad guys or it’s the good guys.

Good guys have to do what, decryption, that is, we have to make clear what is the content of a bad guy’s message.

Let’s take a trivial example: the Guardia di Finanza, Police or Carabinieri arrive, find a safe, call the Fire Department or the locksmith, open the safe and read the contents of the documents.

The Guardia di Finanza, Police or Carabinieri arrive, find an encryption-protected usb or hard drive, what do they do? Who do they call?

At this point, this trivial example is enough to say that the problem of enforcement of digital innovations is dual, in the area of law enforcement. So the question of “what rule of enforcement?” arises. We know perfectly well that the bad guys do not enforce rules and as a result are more competitive.

Let’s take another example: dynamic child pornography. The creation of child porn content, movies from apparent reality or child porn comics. Through generative artificial intelligence, anything can be created. These are the bad guys. What do the good guys do, they protect themselves and say: but is it better to have animated child porn, which disincentivizes the creation of child porn footage shot in child porn farms, the places of horror, or should this also be punished and sanctioned and consequently place this restriction?

Going further, we plan to regulate the use of artificial intelligence in judicial systems. The new bill[1] has a number of key passages, Articles 14 and 25. Art. 14 clarifies one concept: the use of artificial intelligence systems is possible only for the organization of judicial offices, not for decisions, because they have no room for critical consciousness, nor for the evaluation of evidence.

But is this really happening? Already it is being used, because the trial, especially the criminal trial, has increasingly transformed over time into a digital evidence process. So in an atypical and unregulated way, the formation of digital technical evidence comes in, which is beyond the judge’s control. The judge then what does, a terminal assessment. We would have to have what are the rules about the formation of technical evidence. This may sound like a difficult discussion, but it is very trivial. Let’s take the use of a wiretap, a capturer, any file that contains a voice audio. We have to determine whether it is genuine or not genuine. It goes into the process, how do you determine whether it is genuine? You do a technical consultation and the technical consultants what do they use? Programs. And how are these programs coded? Who is it that says that program is capable of recognizing or not recognizing? So consequently it actually enters not only artificial intelligence but that whole world of unregulated typicality within the criminal process. That we then say that the judge must decide is fine, but the judge decides on the basis of the evidence.

Just imagine, the judge decides however the evaluation of the testimony is an evaluation that can be human is analog, what if the testimony is digital? Keep in mind that even now in courtrooms people think they can make comparisons between images by looking at them, that is, a sensory perception, which is absolutely far, now sidereally, from the criterion of the electronic fingerprint that leaves an image, because if I in a trial bring a photograph where it portrays Roberto De Vita standing in a place or doing a certain thing. They will reason about the origin, they will say “it seems to me,” and so it enters overbearingly, because it is the question of the analog perception of digital evidence and the evidence generated by artificial intelligence that is the problem.

So when we have to imagine that the judge, as well as the trial remains a place where critical consciousness is applied, this must first of all be aware of the limitations of analog culture in relation to technological tools, and this, however, does not come from the normative datum, but from the formative datum.

There is a commitment here and rightly so in the training screenings for younger people. Earlier I heard an important passage from the representative of the Community of Sant’Egidio who talked about the elderly. But we know perfectly well that one is elderly from the moment one leaves the circuit of the working-active-productive-age condition, may be 60-65-70 years old, with a life projection of another 20 years.

We know that training happens in schools in universities or in the workplace, outside there is no more training. Currently older people, 60 years and older, are 80-85 % of the recipients of all the scams that are done through artificial intelligence. You will say and how do they use artificial intelligence. Very simple: the generative dialogue that takes place with a gpt-type chat while you are describing an improbable story that, however, in the hands of those with analog training is absolutely indecipherable.

At the same time, training is about younger people. Who is doing right now in the area of justice, predictive policing, application of artificial intelligence? The older people, we, we are the ones who have to go to school, it’s not the 15-20 year olds. We should take all magistrates, lawyers, policemen, carabinieri, all of them to school, all of them to understand that WhatsApp is not a tool that gives certainty, I show the series of messages, that the content of a cell phone is editable.

We have waged battles to be able to limit the use of trojans, but not to be siding with the bad guys, but because we know that it is a manipulative intrusive capability, like artificial intelligence.

Then the underlying problem is and remains cultural, and the university for digital transformation, for innovation, must first and foremost accommodate those who have power and responsibility in the use and application of even unconscious artificial intelligence right now.

Stefano da Empoli: You referred first to those two articles and dwelt on the first one, tell us something about Art. 25 and what your opinion is on it.

Roberto De Vita: The underlying problem is that you can regulate what then has a quota of compliance with the rule that provides the rule. The underlying problem is unreported abuse, illicit abuse, and in short, what I said before, the use of AI (but digital tools in general) by the bad guys.

The theme of recognizability. Typically a fake does not have a “fake” mark. When I buy a fake product, it doesn’t say “fake” on it. So, I can be protected in foster care when it is a declared result of an artificial intelligence, otherwise it is more difficult. This is as far as direct data is concerned, and I come to Art. 25.

There is the indirect problem. Let’s take an example: you receive a phone call, in which there is a voice, mine, which is very recognizable, telling you bad things. You are convinced that I called. What do you do? Who do you report? A user, with my voice, and you are sure it is Roberto De Vita. The underlying problem was that it was not me, but the AI.

It is not that before the call I declare, “This is the product of AI.” Article 25 addresses this issue, of introducing an aggravating factor to systematize in the substantive criminal system a provision to punish the use of direct or indirect results of AI systems that represent an insidious means with a deceptive capacity that can amplify, make more serious certain crimes, impair public or private defense.

The issue is huge it is not only substantive in nature, I gave the trivial example of the phone call but you can imagine what potential AI has in creating in analog perception the belief that the result is genuine.

There are provisions, now some of them accompany existing regulations. There is a provision regarding the creation of materials, they can typically be videos, movies.

We all know that the theme of nonconsensual pornography-which is the big container of Revenge porn-is the creation of animated movies with likenesses of, indeed exactly with, people in high definition in the act of performing sexual intercourse.

Of course, the rule has a liberal bias: if harm is created or if there is no consent of the person. Let’s remove the consent, look at the harm profile. This is not a harm referable to a single person, here is an issue of timidity of approach that is also used in other jurisdictions.

Anything we fail to recognize as the fruit of generative artificial intelligence is likely to create, especially in analog minds-and they will remain analog minds for a long time, even culturally-a disorientation and difficulty in recognizing what is true from what is not true. The “punitive-sanctions” enthusiasm should be far greater than a phenomenon that is being looked at as a mere forgery. It is not a mere falsification, let us always remember that indirectly the results of manipulation by artificial intelligence enter into an analog decision-making chain made by man who does not recognize and is convinced that he is deciding in an original and first way, but this is not.

Art. 25 tries to give answers, still tentative, we will have to see the disasters that will be generated-and keep in mind that I do not have a Luddite attitude and approach-I am a firm believer in AI. I don’t think regulations are enough-very useful for making businesses or public administration work-as far as protection is concerned an unparalleled cultural investment that we were not able to make even in past years for the first digital revolution. I make a joke, only covid and lockdown made the Courts in Italy equip themselves with a PEC to be able to receive documents. I do not know whether we should expect a plague by image to begin to understand what the consequences of using artificial intelligence are.

References

[1] Bill no. 1146 – Italian Senate. Download the text of the DDL here.

Accepted the Italian position in Case C-352/22 in a landmark judgment[1] of the Court of Justice of the European Union, a pillar protecting the protection of human rights and the binding recognition of refugee status in the judicial space of the Union.

As reconstructed in our previous contributions , by order filed on 1.06.2022, the Superior Court of the Land of Hamm made a reference to the CJEU for a preliminary ruling, asking whether the final recognition of a person’s refugee status under the Geneva Refugee Convention by a member state of the European Union is binding, with regard to the extradition procedure to another member state requested for surrender, due to the obligation of conforming interpretation of national legislation established by Union law, with the consequence that the extradition of such a person to the third country or country of origin is necessarily excluded until the revocation or expiration of the refugee status.

On Oct. 19, 2023, the Advocate General had expressed his position, leaning toward the view that the two procedures were deemed autonomous and non-interfering, hence the non-binding nature of a decision granting refugee status versus a subsequent request for extradition.

In its ruling issued last June 18, the Court resolved the issue before it by affirming the primacy of the rights and guarantees enjoyed by refugees and the obligation of EU member states to ensure the effective protection of those rights.

The premise of the ruling

After a concise reconstruction of the relevant regulatory context (Geneva Convention, European Convention on Extradition, Dir. 2011/95, Dir. 2013/32, German law) and the issue before it, the Court first specifies the perimeter within which the correct solution will be sought.

It is clarified, in fact, that Member States shall grant refugee status, pursuant to Article 2(e)[2] of Directive 2011/95, to a third-country national or stateless person who is eligible to be considered a refugee, without having a discretionary power in this regard; therefore, the recognition by a Member State of refugee status is recognitive and not constitutive of refugee status. This means that the refugee becomes a beneficiary of international protection and has all the rights and benefits under Chapter VII of the aforementioned Directive. Similarly, the member state that initially granted refugee status subsequently may withdraw it if certain preconditions are met.

The Court then goes on to specify that, at the current state of the Common European Asylum System, the Union legislature has not yet fully achieved the objective at which Article 78(2)(a) TFEU is aimed, namely a uniform asylum status for third-country nationals valid throughout the Union. In particular, the Union legislature has not yet established a principle that Member States would be required to automatically recognize refugee status decisions made by another Member State, nor has it specified how such a principle would be implemented. Therefore, at present, member states are free to make the recognition of the totality of refugee status rights in their territory conditional on the adoption by their competent authorities of a new refugee status decision.

In addition, it is necessary to determine whether, under the law of the Union on international protection, a decision granting refugee status taken by one Member State can produce a binding effect with respect to an extradition procedure of the same refugee conducted by another Member State, such that the latter must refuse surrender by reason of the existence of such a decision.

In order to resolve this issue, according to the Justices, it is not sufficient to take into account only the two Directives 2011/95 and 2013/32 but it is necessary to recall all relevant Union legislation, including the provisions of the Charter of Fundamental Rights of the European Union[3], including in particular Articles 18 and 19[4].

Well, Art. 1 of Directive 2013/32 aims to establish common procedures for the purpose of granting and withdrawing international protection status under Directive 2011/95. Art. 9 recognizes the right of the applicant for international protection to remain in the territory of the member state concerned during the procedure for the examination of his or her application, authorizing member states to derogate from this right only in the cases provided for therein (which include that of an extradition of the applicant to a third state). However, as acknowledged by the Advocate General himself in his opinion, this hypothesis concerns only the case of an extradition occurring during the procedure of examination of an application for international protection, while the article does not regulate the case of an extradition requested after the granting of such protection by a member state.

On the other hand, Art. 21 of Directive 2011/95 recalls the duty of all member states to respect the principle of “nonrefoulement” in accordance with international obligations. According to the Court, “That provision thus constitutes a specific expression of the principle of non-refoulement guaranteed, as a fundamental right, by Articles 18 and 19(2) of the Charter, read in conjunction with Article 33 of the Geneva Convention.”

Since a Member State’s decision to grant an extradition request issued by the State of origin against a person who has been granted refugee status in another Member State would have the effect of depriving him or her of the rights and benefits provided for in Directive 2011/95, it follows that the extradition procedure conducted in the first Member State falls within the implementation of Union law, within the meaning of Article 51(1) of the Charter[5]. Consequently, the state in charge of examining the extradition request will be obliged to respect the fundamental rights enshrined in the latter, including those guaranteed by Articles 18 and 19 on asylum.

The decision

In light of these normative premises, it is necessary to determine whether the combined provisions of Art. 21 of Directive 2011/95 and Articles 18 and 19 of the Charter prevents extradition subsequent to the granting of refugee status.

Given that extradition will have to be denied in any case when there is a real risk that the requested person will be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment, it is up to the member state to make this assessment and to ensure that applicants and beneficiaries of international protection enjoy the effective enjoyment of the right enshrined in the Geneva Convention and in the Union’s rules.

And in fact, as also pointed out by the Advocate General, as long as the person requested to be surrendered possesses the status of a refugee, his or her extradition to the third country of origin would have the effect of depriving him or her of the effective enjoyment of the right conferred on him or her by Article 18 of the Charter. Therefore, as long as that person possesses the qualifications to enjoy that status, Article 18 of the Charter prevents his extradition to the third country from which he has fled and in which he risks persecution.

Such appears to be the condition of the citizen who is the subject of the case examined by the Court: and in fact, as long as there is a risk that he will suffer in the territory of his third state of origin, from which the extradition request originates, the political persecution on account of which the Italian authorities have granted him refugee status, his extradition to that third state will be excluded under Article 18 of the Charter.

In this regard, the Justices point out that the mere circumstance (pointed out by the German court) that the prosecution for which the subject’s extradition was requested was based on facts other than such persecution cannot be sufficient to exclude this risk.

In addition, Art. 19 of the Charter prohibits in absolute terms the removal of a person to a state where there is a serious risk of being subjected to the death penalty, torture or other inhuman or degrading treatment or punishment. As a result, where the person concerned by an extradition request invokes a serious risk of inhuman or degrading treatment in the event of extradition, the requested member state will not be able to take into consideration only the declarations of the requesting third state or the latter’s acceptance of international treaties (which only guarantee in principle respect for fundamental rights) but will have to rely on objective, reliable, precise and appropriately updated elements, which may result from international judicial decisions, such as judgments of the European Court of Human Rights, or judicial decisions of the requesting third State as well as decisions, reports and other documents prepared by the bodies of the Council of Europe or belonging to the United Nations system.

This means that the fact that another member state has granted the person complained of refugee status is a particularly serious element that the competent authority of the requested member state must take into account.

Therefore, a decision granting refugee status, provided that this status has not been revoked by the member state that granted it, must lead that authority to refuse extradition, pursuant to these provisions.

According to the European Judges, in fact, “the Common European Asylum System, which includes common criteria for identifying persons genuinely in need of international protection […] is based on the principle of mutual trust, whereby it must be presumed, save in exceptional circumstances, that the treatment of applicants for international protection in each Member State is in conformity with the requirements of Union law, including those of the Charter, the Geneva Convention and the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on November 4, 1950.”

If the requested member state granted the extradition of the refugee status beneficiary, it would effectively circumvent the entire discipline by depriving the person concerned of the effective enjoyment of the rights and protection guaranteed to him or her by the Geneva Convention and Union rules.

In the light of these very clear considerations, therefore, the Court of Justice resolves the question submitted to it by ruling that “where a third-country national who has been granted refugee status in one Member State is the subject, in another Member State in whose territory he resides, of a request for extradition from his country of origin, the requested Member State may not, without having initiated an exchange of information with the authority which granted that status to the person claimed and in the absence of revocation of that status by that authority, authorize extradition“.

A landmark ruling in European Union humanitarian and criminal law. Once again the Court of Justice balances, in terms of guarantees and protection of human rights, the judicial and political sovereignty of individual member states in international judicial cooperation relations and, once again, intervenes in a prosthetic key to fill a serious gap in the European criminal procedural system; a system today entirely projected to a common judicial space with full and effective circulation of judicial measures (from arrest warrants to judgments), but which is still far from establishing with primary legislation the full and effective circulation(rectius protection) of human rights and freedoms.

 

Prof. Avv. Roberto De Vita
Avv. Valentina Guerrisi

 

 

References

[1] Download the text of the judgment here.
[2] And this is by virtue of Art.
13 of Dir. 2011/95. [3] https://www.europarl.europa.eu/charter/pdf/text_it.pdf[4] Art. 18 – Right to asylum; Art. 19 – Protection in the event of removal, expulsion and extradition. [5] Art. 51 – Scope of application.
1.
The provisions of this Charter shall apply to the institutions and bodies of the Union with due regard for the principle of subsidiaritỳ as well as to the Member States exclusively in the implementation of Union law.
Therefore, the aforementioned entities shall respect the rights, observe the principles and promote their implementation in accordance with their respective competences.
[…].

Prof. Avv. Roberto De Vita ‘s essay published within Eurispes‘ 36th Italy Report, which was presented on 05/24/2024 at the Conference Room of the National Central Library in Rome.

The most serious difficulties begin when a man
Is free to do whatever he wants.
T.H. Huxley

Between individual and society

From uncertainty to perceived fragility, the dimension of individual disorientation becomes a systemic horizon in the century of conflict between “future threat” and retrotopic nostalgia.
The acceleration of social transformations brought about by the reversal of the relationship paradigm in the human-machine relationship triggers hardly predictable (but easily postulated) motions of anthropological change, the native manifestations of which are already visible.
And if this is the (dark) perimeter of the process of change, its (in)conscious systems of governance confront each other between severity and permissiveness as antipodes and scales of alchemical hope, between visions of order and discipline and visions of freedom and creativity. Dimensions sometimes in conflict, sometimes in continuity of maturation (embryonic in transformation), and sometimes in enlightened balance. From philosophical reflection to social inquiry, traversing individual introspection to the metasignificant of the normative rule, the apparent dichotomy becomes apparent in the primal and irrepressible chromosomal coexistence of individual and society.

Digital leviathan and “creative energy”

Philosophical research, after wondering with human thought about the form of God, plunges with analogical thought into the depths of Artificial Intelligence. The creativity resulting from the freedom of scientific research is, by some, read as a risk to humankind’s very existence, almost in a dystopian vision of a digital Leviathan (Terminator and his Skynet), while by others it is seen as the only saving projection in the face of an unsustainable ratio of scarce natural resources to world population. And if the relationship between philosophy and technology has always been explored, contemporary themes increasingly radicalize the confrontation: on the one hand, the need for severity and order in the governance of technological transformations (with traits of concealed Luddism) and, on the other hand, the exaltation of the magnificent fates and progressives to which it is thought (with traits of fideistic reliance) that the “creative energy” of these prodigious machines for humanity will be able to lead.
Since it is uncertainty that (should) represent the philosopher’s method of research – the only true explorer in the universe of the superstructure of thought – the dichotomy between severity and permissiveness takes on the kaleidoscopic color of Kantian observation and does not force the assumption of risk from predictive fallibility and error: method prevails over merit, inquiry over result, magma, rather than fluid, in a vaporous state.
And this is despite the fact that the comparison may take on the reassuring classical tension between Plato’s collective ethical rigorism and the relevance of balance among (and of) individuals in Aristotle’s thought, in which a strict regulation of citizens’ lives (severity for order and justice) is preferred to reliance on moderation and individual common sense.
A kind of endless agon that cannot have winner or loser: the latter are concepts of terminal negation that cannot find hospice in post-prehistoric human formations, where the relationship between society and the individual can be rewritten or, rather, described in the epistemology of the relationship between severity and permissiveness.

Efficient mixture

The analysis shifts, then, to the functional, finalistic, moral, utilitarian meaning of the two concepts and no longer on their inevitable coexistence, to the declinations of efficient mixture, political recipe and normative dosimetry, always with an eye on the alchemy of the resulting social and economic.
And while the Saint of Hippo relies on the severity of divine law as the criterion of order and grace as the confirming exception for mortal limitations, Thomas Aquinas, with impetus as a sociologist and psychoanalyst ante litteram, places individual understanding and merciful consideration for those limitations within the fabric of natural moral law (weave rather than warp).
In Christian thought, the pursuit of the aforementioned blend investigates the inscrutable divine plan, seeking to grasp signs of the way, signals of the course, and situating outcomes, even the nefarious ones, as a consequence of God’s inescapable will and atonement for human imperfection. Medieval political society is thus guided by the alchemists of protective and curative poisons: doses of one (severity) or the other (permissiveness) protect, cure, kill or extinguish, progressively, dosimetry in the result collected by historiographers.
With the Enlightenment, the unfathomable and the unpredictable (often considered – and rightly so – legitimations of despotic power) are abandoned (in part), and the individual and his freedom take on value autonomy, albeit to be governed according to social and moral rules: these are no longer unfathomable, but must be sought in man himself and his consociative vocation. Rousseau writes the method for government and rules, while Mill, through the measurement of social welfare, looks at the happiness of individuals in society through the dual dimensions of pandering-efficient and outcome-tending.
Only with Friedrich Nietzsche, however, and then even more so with Sigismund Schlomo Freud, do permissiveness and severity become internalized until they become exaltation of the individual, as well as overcoming the limits of individuality, on the one hand, and categories of being and ought-to-be, on the other. It no longer investigates only the relationship and balance between society and individuals starting from the imperative of order, but seeks the projection–starting from the individual and in the individual–of freedom, creativity and inner conflict.

Reins of government

However, to noble introspections sociologists and political scientists prefer system macroanalysis, partly because the more society becomes structured, the more urgent the study of superstructures becomes. And because severity and permissiveness are reins of government, Michel Foucault analyzes the use of punitive practices to regulate behavior and concessions of spaces of freedom, or tolerance of rebellions to maintain social control. As the contrasting twentieth-century models of individual liberty and social justice gradually emerge, variants of different-intensity blends of one and the other, an inescapable Nozick and an ennobling Rawls.
The dominant question in the diachronic thinking of classical sociology is whether severity is innervated in the system of social rules as such, whether the concept of permissiveness is located outside the rules or within them, whether society is, as such, a manifestation of the inevitable suppression of a share of individual freedom; an analysis, however, that is no longer metalogical, but methodological, interested more in the consequences than in the premises, in the probability of the relationship between rule action and social resultant and even its measurability.

“Mechanical societies” and “organic societies”

Durkheim’s “mechanical societies,” at the foundation of which there is a strong sharing of values and beliefs, have a consequent high level of conformity-severity to social rules. These are contrasted with “organic societies,” where diversity and balance among the diversity of individuals require a greater degree of permissiveness in social rules. Severity and permissiveness thus describe the very nature of consociation, that is, what its root is (identification versus coexistence), exalting the tension between communal cohesion and anomie: the latter concept, in its extreme, can be seen as the very negation of the communal dimension and thus a harbinger of social disintegration and negation of society as such. Again, as in the dimension of philosophical research, for sociologists the declination ultimately comes down to the virtuous dysfunctionality of the relationship between individual and society.
However, with Weber and Adorno, thought quickly turns to what enables (why and how) societies to determine adherence (compulsion) to social rules, seeking in the induced stratification of cultural patterns (even seemingly individualistic ones) the key to social control, an inescapable and necessary evil for some, a desirable viaticum of social justice through collective welfare, for others (Marx). Hence the apparent oxymoron of strict society in the permissive rule: here constraint and punishment are replaced by cultural homogenization and communal “religious” identification, sharing and belonging in Durkheim’s mechanical societies.
Organic society, that of balance and coexistence of diversity, thus appears to be only a passing phase, transeunte chrysalis or antiphrasis of permissiveness.

Declinations of coexistence

Society and individual, severity and permissiveness, social justice and individual freedom, security and liberty, punishment and forgiveness: (dichotomous?) declinations of coexistence. Philosophers, sociologists and economists investigate roots, cause and effect, method and measurement; jurists (dystopian rulers of the superstructure) offer tools. Be they those of inquisitorial torture, those of narcotic tolerance, those of laissez-faire, or those of Orwellian fascination. Ennobling intentions extremes act between the meta-legal (of the half-jurist and half-philosopher or sociologist) and the mechanistic formalism (of the magistrate to apply called), lacking their own foundations but “enlightened” by other reason, to the point of being (self-)servant, at once libertarian and paternalistic, capable of finding in calligraphy the justificatory root of racial laws and non-discrimination (Kiel School).
In contemporary society, jurists, convinced regulators of (co)existence, self-assert their axiom: those who write the norms, those who materially draft them, make themselves absolute exegetes of the first thought (the others, philosophers and sociologists, are beautiful souls); judges, called upon to enforce the form of the exegetical excerpt, are despots of harmony, between wrapping garments and shape-shifting bodies.
And when in the fortunate dimension of modern severities the concept of democracy is established as a merit and not a method, even wars have their basis in law (although reason would say otherwise). Since the philosopher investigates (at least seemingly) without boundaries or territories and the sociologist diffidently perscrutes every superstructure, legal thought is the one that is most apt to be enlisted first in the special wards of democracies, those in which the cultural regime governs coexistence and where cultural homogenization is preferred to severity, which deceives with phony permissiveness (typical Western), or those in which freedom to vote is transparent dress that shows the scars of dissent.
If then, as per the opener, the perimeter becomes murky, the portents project the dichotomy on structure and superstructure, where man and machine and their (inter)acting are the new individuals and society with its rules is yet to be investigated, even before it is vainly to be regulated.
And here, to make a contaminating leap into social pedagogy and with the aid of the parenting metaphor, think of the father’s bewilderment and paroxysm in the face of the digital native and his neurological as well as psychological change, where the plastic brain no longer has the structure of a book but that of a smartphone: what severity and what permissiveness (and what results will they produce), waiting for the terminal connection to the machine? Even more complex appears the educational balancing act in school, where one has by definition the responsibility not to abandon the last and at the same time to promote the whole, where rule education is the forerunner of social education, where the concept of free development of identity is associated, clandestinely, with normalized deviance.

A “frightened society?”

Precisely at the stages of greatest revolutionary, destructive and creative transformation, where the decay of individual anomie leads to social disintegration and, likewise, to the reassertion of an individualism immersing itself in values of fundamentalist extremism, where diversity marks the boundary of belonging and not of the richness of coexistence, where fear makes hostile and forastic, severity must regulate coexistence and not identification, while permissiveness must be incentive of creative force, license for the deserving, consequence of deserved trust.
When inert observation is made of the deepening tolerance for conducts of intolerance to social rules, when unilateral claim for individual rights becomes denial of coexistence, the progressive habituation to irresponsibility is affirmed. Individual deviance becomes systemic, anomie rules in the logic of overwhelm.
Self-referentiality of rights, ideological opposition to duties, irresponsibility justified by individual discomfort or systemic faults.
The family as well as communities, schools as well as institutions, seduced by the prosperity of the post-ideological century, by the absence of organized conflict, gave way to the apparent freedom of primordial individuality, dismantling, because they were deemed archaic, the superstructures of coexistence, perceived as useless scaffolding and trusting (out of ignorant good faith) that regulatory spontaneism was (at all times) the very cement of society.
Consider the drift of parental authority, sharedly extended (in aesthetics and merit) to parental responsibility and dramatically sunk into the perils of youthful dissatisfaction among adults and suffering anarchy among minors. A childhood no longer denied by material need but by the emotional and educational neglect of bewildered and irresponsible parents forbidden to punish but not neglect.
Not different is the fate of the School, where bullying of students and their parents and resignation due to cultural and supportive poverty of teachers is true pedagogical and civic renunciation, where judging, punishing and rewarding have been forbidden because they are considered mortifying manifestations of the esprit de jeunesse.
Families and schools mature increasingly fragile and arrogant children, only to leave them prematurely to an even more agitated and gloomy social living (of which adults grasp very little). The dramatic numbers of new addictions of progressively younger minors, alcohol and narcotics, the numbers of the scars of battered sexuality, the explosion of serious psychological distress and the number of suicides among very young people, the increasing severity of juvenile crime are increasingly manifest symptoms of this.
A society where individuals feel more invisible and lonely and therefore are increasingly scribbled on their skin and accompanied by animated stuffed animals, unable to relate beyond the aesthetic exhibitionism of image posts and fear of relational emotional failure.
Conflict, which once-when it was between society (strictness) and individuals’ quest for freedom (permissiveness)-generated creative force, of civic and moral, economic and political innovation, has become internalized; it is no longer ideological class conflict, but has become individual suffering, lonely frustration. Individuals struggle to recognize each other, maintain mistrusts, belonging is only commercial and consumeristic or animated by hatred of the weak or different other (in fear of the mirror), and being becomes psychopathological because inner conflict breeds frustration and destruction.
Therefore, it should come as no surprise that over the past five years the dramatic number of young people (aged 15 to 34) who are not studying, not working and not in training (although declining slightly in the past year) continues to hover between two and three million.
At the same time, those who are committed see a gradual depletion of achievements in studies and employment level.
The engine of society is resigned and frightened, and, free from material need and the need to gain freedom and rights, it remains unmotivated and unmotivated.
Certainly these are not the only causes (always complex, deep and historical in the alibis of all ruling classes) of the existential drift of generations, but it is hard to doubt that the renunciation of educational severity, value rule, community obligation, and achievement rewards have done children and students any good.
At first it appeared as an ideological, value choice, overcoming patriarchal oppressiveness in the postwar Italian family and school, where severity was axiomatic. It seemed to have freed the educational method (society as a whole) from despotism and grafted (by movement of revolutionary aspiration) vital yeast, creative ferments, destined to combine freedom, spontaneity, individual and collective improvement.
Perhaps it has happened elsewhere, but certainly not in Italy where, the demolition of a superstructure has not been followed by improvement, if anything, abandonment. Abandonment first and foremost affective, parenting is responsibility and educational severity is primarily affective commitment, of presence, of listening, of confrontation, all activities incompatible with the youthfulness of adults in search of their gratification and with little time to be parents; therefore, better to delegate or doubt, better to justify, better to understand, better to forgive, better to let it go wrong and “let’s hope it gets by.” And if School acts stern and reminds us of our commitments to family and society then it is paternalistic and therefore wrong, while if students’ merit results do not satisfy and trigger tensions and depressions then better to reward everyone and “hope they get away with it.”
Severity is commitment; today its “overcoming” is no longer ideological or value-based, but an alibi for inadequate adults engaged in something else.
And it is the same sickness that consumes institutions in the face of a degeneration, not only generational but communal, of abusive and violent conduct, such as that chronicled in the daily chronicle of overwhelm.
But it is certainly not a simplistic appeal to orderly solutions, to old-fashioned severities, to the use of means of correction, to redemptive punishment, that is the saving viaticum. Because after the digital revolution, the “neurological” distance between the generations of young and old has increased sidereally, and an analog retrotopic jolt can hardly regulate freedom and responsibility in the ecosystem of digital humanity.
As we wait for traces of the direction of a new Pestalozzi, in his pedagogical vision for children and adults, for individuals, families and society, where before precepting one must explore the state of nature, the social state and the moral state, we collectively surrender ourselves to a new society, which before the complete digital metamorphosis will be the “frightened society.”

In case no. C-178/22, which originated from a reference for a preliminary ruling by the Court of Bolzano, the Court of Justice issued a significant decision regarding judicial authority access to telephone records of electronic communication service providers.

Under Italian law, this type of access is limited to specific crimes-which includes aggravated theft-provided there is authorization from a judge. The Court reiterated that authorized access must relate only to individuals who are suspected of having committed serious crimes, with the clarification that the definition of what constitutes a “serious crime” must in each case be identified by individual member states.

However, the Court has made it clear that the court responsible for authorization must have the power to deny or restrict such access if it determines that the injury to an individual’s fundamental rights-privacy and personal data protection-is excessive in the face of an offense considered manifestly not serious “in light of the social conditions existing in the member state concerned.”

The main proceedings

After two reports of cell phone thefts, two criminal cases were registered with the Bolzano Public Prosecutor’s Office for aggravated theft under Articles 624 and 625 of the Criminal Code. In order to identify the perpetrators of the thefts, the prosecutor had requested permission from the Judge of Preliminary Investigation in Bolzano to acquire telephone records from telecommunications service providers. The requests included a wide range of data, including utilities, IMEI codes, websites visited, times and durations of communications, cell location data used, and the personal details of the utilities’ holders.

The heart of the issue raised by the Judge for Preliminary Investigation concerns the compliance of Article 132(3) of the Privacy Code[1] (governing the retention of traffic data for the detection and prosecution of crime) with Article 15(1) of Directive 2002/58/EC, as interpreted by the Court of Justice in its March 2, 2021, judgment, Prokuratuur[2].

The Italian legislation, in detail, allows access to phone records to prosecute crimes punishable by imprisonment of at least three years, a criterion that the referring judge feared could also include less serious crimes, such as cell phone theft, certainly not considered serious threats to public safety.

According to the Prokuratuur judgment, such data accesses are justifiable only if they are aimed at combating serious crimes, such as serious threats to state security, and should be proportional to the severity of the interference with fundamental rights, based on Articles 7, 8 and 11 of the Charter of Fundamental Rights of the European Union[3]. The Bolzano judge had thus expressed doubts about the wide discretion left to the Italian legislature and the risk of an overly broad application of this rule, in violation of the principle of proportionality.

Doubts about the issue

Incidentally, the Court ruled on the admissibility of the question, which was contested by the Italian and Irish governments. In particular, they argued that the court’s request took on a hypothetical character, also asking about the compatibility of Article 15(1) of Directive 2002/58 with other less serious offenses other than those in the main proceedings.

However, case law[4] of the European Court has already ruled that requests by national courts for interpretation of EU law are generally considered relevant and admissible unless it is clear that the request has no connection with the facts of the case or the subject matter of the main proceedings, or that the problem is purely hypothetical. In addition, the Court has a duty to respond to questions raised when they concern the interpretation of Union law.

On the contrary, given that the court reproduced in full the wording of Article 132(3) of the Privacy Code in the preliminary ruling question, and given that this encompasses the offenses for which data access authorizations were requested in the present case, the court held that the question was not hypothetical in nature and was therefore admissible.

The preliminary question

The Court considered to clarify in the introduction its power to intervene in preliminary reference cases. And in particular, he reiterated that he could not interpret the national legislation of individual member states or verify its compliance from EU law. In fact, under the Article 267 procedure, the Court can only interpret Union law within the limits of the Court’s jurisdiction.

And even if the question is improperly phrased, the Luxembourg courts can only identify the elements of Union law that require interpretation on the basis of the matter at hand, including by considering rules not considered by the national court.

With respect to the matter under discussion, a critical element in recent case law cited in the ruling is the need for data retention to be both limited and differentiated according to the severity of the crimes. Indeed, access to data should not be generalized or undifferentiated but must be specifically justified by legitimate and serious objectives, such as combating severe forms of crime or preventing serious threats to public safety.

Another relevant aspect, moreover, concerns the prior control of such access. National legislation, in the opinion of the decider, should provide for independent judicial or administrative supervision to ensure that any access to data is justified and limited to cases where it is strictly necessary. This control is essential to ensure that abuse does not occur and that access to data is made only when actually justified by circumstances that make it proportional and necessary.

The Court also made it clear that the seriousness of the interference is not mitigated by the short duration of the data collection period (two months in this case). In fact, the set of data collected is in every case capable of revealing significant details about the private lives of the individuals involved.

The ruling, then, specifies that it is irrelevant to the assessment of the severity of the interference with fundamental rights that the data accessed belonged not to the original owners of the phones but to the people who used them after the thefts. Directive 2002/58, in fact, requires confidentiality of electronic communications and traffic data regardless of the identity of the users; for these purposes, “user” is defined as any natural person who uses such services for private or commercial purposes, regardless of whether or not he or she subscribes to the service.

Finally, the question includes consideration of what crimes can be considered sufficiently serious to warrant interference with fundamental rights guaranteed by the Charter. The definition of “serious crimes” must reflect a balance between the need to combat crime and the need to protect the fundamental rights of individuals. Member states do have some discretion in defining these offenses-due in part to differences in social realities and legal traditions-but they must exercise it in a way that respects the principles of proportionality and necessity, without overextending the scope of access to personal data.

Also in light of the April 5, 2022, judgment, Commissioner of An Garda Síochána and Others,[5] the Court criticizes the Italian legislature’s choice to identify a particularly low edictal threshold for “serious offenses” such as that under Article 132 paragraph 3 Privacy Code.

The identification of such crimes in national law allows for very intrusive access to individuals’ communications; therefore, it should not be so broad as to make access to such data the rule rather than the exception. Consequently, it cannot encompass most of the crimes in the system, which is what happens with a threshold of imprisonment set at an excessively low level-as is the three-year threshold in the present case.

At the same time, a reading of the national legislation leads the Court to believe that even such a low threshold does not necessarily violate the principle of proportionality. Indeed, where the requested data do not allow precise conclusions to be drawn about the lives of the people to whom they belong, access may not constitute a serious interference deserving of protection.

However, at the same time, the national court must be able to deny or limit access whenever it finds that there is indeed serious interference in the face of a manifestly non-serious crime.

The decision

Therefore, in light of this reasoning, the Court established the following principle of law: “Article 15(1) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that it does not preclude a national provision which requires the national court – when intervening in a prior check following a reasoned request for access to a set of traffic data or location data capable of allowing precise conclusions to be drawn as to the privacy of the user of an electronic communications medium, stored by providers of electronic communications services, submitted by a competent national authority in the context of a criminal investigation – to authorize such access if the latter is requested for the purpose of the investigation of offences punishable under national law by a term of imprisonment of not less than a maximum of three years provided that there is sufficient evidence of such offences and that such data are relevant for the establishment of the facts, provided, however, that such court shall have the possibility of denying such access if the latter is requested in the context of an investigation concerning a manifestly non-serious offence, in the light of the social conditions existing in the Member State concerned.”

Avv. Antonio Laudisa
Avv. Marco Della Bruna

 

 

Download the Court’s ruling here.

References

[1] D. Lgs. 196 of June 30, 2003.

[2] Case C-746/18.

[3] Article 7 – Respect for private and family life.
“Everyone has the right to respect for his or her private and family life, home and communications.”

Article 8 – Personal data protection
“1.Everyone has the right to the protection of personal data concerning him or her.
Such data must be processed in accordance with the principle of fairness, for specified purposes, and on the basis of the data subject’s consent or other legitimate basis provided by law. Every person has the right to access and obtain rectification of the data collected about him or her.
Compliance with these rules is subject to monitoring by an independent authority.”

Article 11 – Freedom of Expression and Information
“1. Every person has the right to freedom of expression. This right includes freedom of opinion and freedom to receive or communicate information or ideas without interference by public authorities and without boundary limits.
2. The freedom of the media and their pluralism shall be respected.”

[4] Judgment of March 21, 2023, Mercedes-Benz Group (Liability of manufacturers of vehicles equipped with handling equipment), C-100/21, EU:C:2023:229, para. 52 and case law cited

[5] Case C-140/20.

On Friday, May 24, 2024, at 11 a.m., the Italy 2024 Report of the Eurispes Institute, now in its 36th edition, will be presented at the Conference Room of the National Central Library in Rome.

The 2024 Report will also contain an essay by Prof. Lawyer Roberto De Vita, Director of the Justice Department of Eurispes, on the dichotomy“Severity-Permissiveness, Declines of Coexistence.”

For accreditation and information: ufficiostampa@eurispes.eu

 

“The fact does not constitute a crime.” With this formula, the appellate judges in Rome acquitted, overturning the first-degree verdict, the Carabinieri marshal Fabio Manganaro, who was accused of blindfolding Christian Natale Hjorth, one of the Americans charged with the murder of Deputy Brigadier Mario Cerciello Rega. In the first degree, Manganaro had been sentenced to two months for the accusation of a measure of rigor not allowed by law. The photo of the young American with his eyes blindfolded and his head bowed went around the world. The young man had been stopped and taken to the barracks in Via In Selci in the hours following the tragic attack on Cerciello Rega, who was killed with 11 stab wounds in a street of the Capital in July 2019, along with Finnegan Lee Elder. In the reasons for the first-degree sentence, the single judge stated that the measure adopted by the non-commissioned officer “is not expressly provided for by the law” and therefore represents “an absolute anomaly” on which “there can be no doubt whatsoever”. The court added that it “cannot quite understand the relationship between the blindfolding of an individual and the need to calm him down, considering that, unlike what happens with birds of prey when they are deprived of visual stimuli, a human being just attacked in that way should, on the contrary, become much more agitated not even being able to see if someone is preparing to strike him and from where the threat is coming (and after all, Manganaro also declared that he had covered his eyes… to disorient him).” The second-degree sentence, however, dismantles this accusatory structure. The defendant’s lawyer, Roberto De Vita, commented stating that this decision “restores that trust in justice that had been lost with the conclusions of the public prosecutor in the first degree and with the sentence of the single judge. On April 10th, meanwhile, the public prosecutor of the appellate court of the capital city asked for a sentence of 23 years and 9 months for Finnegan and 23 years for Hjorth, as part of the second appeal trial ordered by the Supreme Court. In particular, the supreme judges had annulled Elder’s sentence to 24 years with a referral on the aggravating circumstances and on the existence of the crime of resisting a public official. For Hjorth, who had been sentenced to 22 years, the annulment with referral concerns the accusation of complicity in murder.

Prof. Avv. Roberto De Vita participated today in the renewal of the memorandum of understanding between the Department of Public Security – Central Directorate of Criminal Police and Eurispes – Institute of Political, Economic and Social Studies, for the promotion of joint initiatives in crime analysis.

The agreement was signed by the Deputy Director General of Public Security Central Director of Criminal Police, Prefect Raffaele Grassi, and Eurispes President Prof. Gian Maria Fara.

The event was introduced by a greeting and presentation of the initiative by the Director of the Criminal Analysis Service, Senior Director of the State Police Dr. Stefano Delfini.

Dr. Claudio Capitini’s interview with Prof. Avv. Roberto De Vita for Vvox’s My Generation column, focusing on the issues of revenge porn and nonconsensual pornography and research “Come on, send me a picture.” Revenge porn and digital scars.

 

“Trial to violence”. With the requisitions of the Public Prosecutor’s students, the arguments of the Defenders students and, finally, the Judges Students Council Chamber, ended today the project of DEVITALAW at the Tasso High School.

40 hours between investigations, debate and discussions in which the younglings simulated two trials, one on a case of sexual assault and the other on a case of revenge porn.

The Firm thanks the Head of the School, the Professors and especially the students for the enthusiasm and the commitment shown throughout the project.

 

The TG Sardegna report on the lecture by Prof. Avv. Roberto De Vita, President of the Cybersecurity Observatory of Eurispes and Titular Professor of the subject “Security in new technologies” at the Guardia di Finanza School of Economic and Financial Police, entitled “Cybersecurity – Cybersecurity in Public Entities and Companies“, sponsored by Eurispes, the Autonomous Region of Sardinia and IISTCG “Don Gavino Pes.”

The lectio magistralis on “Hyperconnected Society: between Analog Vulnerabilities and Digital Innovations” addressed the challenges of cybersecurity in the public and private spheres, with a special focus on the issues of adapting the national and European cyber security system to ward off cyber abuses and threats.