Introduction
With Law No. 149 of 2016, the Italian legislator delegated the government to fully implement the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union, signed in Brussels on May 29, 2000. Italy, along with Croatia, Ireland, and Greece, was among the last countries to implement this Convention. The primary goal of this delegation was to strengthen Italy’s judicial cooperation in Europe, addressing increasingly international criminal phenomena.
The Discipline of Transferring Proceedings
Article 4 of Law 149/2016
Article 4 of Law 149/2016 is crucial for understanding the discipline of transferring criminal proceedings. The legislator, pursuant to Article 76 of the Constitution, delegated the government, which issued Legislative Decree 149/2017, introducing the new Title IV bis of the Code of Criminal Procedure. The main goal was to avoid violating the principle of ne bis in idem, preventing the emergence of parallel proceedings in multiple states.
The New Title IV Bis of the Code of Criminal Procedure: Transfer of Proceedings
Article 746 bis c.p.p. (General Provisions)
Article 746 bis c.p.p. establishes that the discipline regulates the transfer of criminal proceedings within the EU, except as otherwise provided by individual international conventions. The transfer can take place either in favor of Italy (passive transfer) or in favor of the judicial authority of another state (active transfer) with the following temporal requirements:
- The transfer or assumption must occur before the exercise of criminal action (Art. 746, para. 2).
- Territorial jurisdiction is based on several factors, such as the location of the action or omission, the harmful consequences, the number of victims, witnesses, sources of evidence, and the impossibility of extradition.
Article 746 ter c.p.p. (Assumption of Criminal Proceedings from Abroad)
Article 746 ter c.p.p. governs passive transfer. The Minister of Justice, after receiving a request for assumption from a foreign state, transmits the request to the Public Prosecutor’s Office at the competent court. The transmission is equivalent to the Minister’s request to proceed according to Articles 8, 9, 10, and 11 of the Criminal Code.
International conventions may provide for direct relations between judicial authorities. In this case, the Public Prosecutor, upon receiving the request from their foreign counterpart, immediately notifies the Minister of Justice of the assumption.
Notification to the Injured Party
The injured party (PO) is notified of the assumption of the proceeding in Italy, with notice to file a complaint if required. The terms for filing a complaint, pursuant to Art. 124 c.p., begin from the notification of the notice. However, a complaint filed abroad remains effective in the Italian legal system.
Precautionary Measures
The Italian judge must confirm any precautionary measures applied abroad according to Art. 27 c.p.p., assessing the grounds for the measures based on the principles of the Italian legal system.
Guarantees for the Suspect
Evidence obtained abroad remains effective in Italy, provided it does not conflict with the fundamental principles of the Italian legal system. The period of pre-trial detention served abroad is counted according to Articles 303, para. 4, 304, and 657, para. 2 c.p.p.
Article 746 quater c.p.p. (Transfer of Criminal Proceedings Abroad)
Article 746 quater c.p.p. governs active transfer, balancing the constitutional principle of mandatory criminal prosecution (Art. 112 Constitution). Active transfer occurs when Italy renounces the exercise of criminal action.
International Norms and Relations between Authorities
If international norms provide for direct relations between judicial authorities, the Italian authority will communicate the transfer decision within 30 days. If norms provide for relations between central authorities, the Italian judicial authority submits a reasoned request to the Ministry of Justice, which has 30 days to decide.
Powers of the Minister of Justice
The Minister of Justice can:
- Order the transfer of the proceeding.
- Prohibit the execution of the transfer for political reasons or non-compliance with fundamental principles.
Consequences of the Transfer
Following the transfer, the Italian judge will issue a dismissal decree for lack of jurisdiction (Art. 20 c.p.). If the foreign state does not exercise criminal action within the agreed time, the Public Prosecutor can request the reopening of investigations (Art. 414 c.p.p.).
Conclusion
Law 149/2016 and the subsequent Legislative Decree 149/2017 represent an important step in strengthening judicial cooperation between Italy and other EU member states. The introduction of Title IV bis in the Code of Criminal Procedure aims to prevent the duplication of proceedings and ensure more efficient and fair justice.
