On 11 marc 2015, Francesco Legrottaglie presented a denunciation against the defendant, reporting he had stolen some jewels and sold them back to a merchant in Osuna (Italy). Two years later, in 2017, the defendant had admitted the crime, and asked the judge to have an offer, as it is stated on art 444 of Italian Criminal Procedure Code. Problem is as per same article for the crimes as recycling it is foreseen that in order to receive the benefits of a flea bargaining the profit of the crime shall be returned. Now the defendant did not returned the profit, and therefore even if he had admit the crime could not reive a better treatment as per previous agreement with the Accuse. There was so a bad situation: a defendant willing to admit his crime (even because in Italy he would have a lower yearlong sentence), but the agreement could not be accepted until the profit would have been returned (a profit that the defendant does not have). The Judge had therefore decided to ask the Accuse to modify the charge, in theft, avoiding so the necessity of returning the profit. However, the Accuse could not proceed, an s they had proof of the proof, and therefore the judge was appointed by the accuse to decide by the facts shown in the trial if the crime was a theft or a recycling. Now this change is the real problem, as changing the title of the charge would result in not letting the defendant use the flea bargaining (a civil rights recognized in Italian constitution and criminal code)). The Italian judge had therefore escalated a European law questions regarding the regulation 2012/13 and the art 48 TFUE, asking if they are applicable on the case, considering that there would be a different treatment based on the different charge.
The court would start to deliberate Over the prejudicial measure, took by the judge, fist considering the Admissibility. Indeed from a side the Italian government reports the demand di pronuncia pregiudiiziale, cannot be received by the court unde the basis of the 2012/13 regulation, as it concerns transnational crimes, while the crime the court is considering in this case is a crime committed by an Italian national in Italian state limit towards another Italian national, therefore it does not qualified as transitional crime. To this claim the Court will answer reporting that nor the art 1 or any other one present in the regulation quoted is actually defining the regulation itself as binding just transnational crimes. Regarding the matter considered by the Regulation the court goes on explaining how in the regulation at art 10, 14 and then reminded in 3 and 4, the main goal is to create an European pattern of common law of which every sentence shall include in its motivation, in order to facilitate the communication between the European organisation and members state, and members state themselves, creating a web of common law criteria to utilize in criminal trials. Goal of the regulation is therefore harmonization and not any other , therefore the claim could be receivable by the Court OF European Justice e, considering its role of law harmonizing inside the European union , and the fact the question is regarding harmonizing European principles and the member state law ones.
Again, the Italian government replied that it could be a matter of the Eu court but the material fact it is anyway outside the legal framework of the competence of that regulation, as the fact is not foreseen in it. The court again states its role given by the art 267 of TFUE is the one , as reported before , of harmonizer of the Eu law between the member state , and in application of it in member state case , whenever would be asked by the member state judge to check on it. Again the Court askes herself: What this regulation 2012/13 is talking about? Considering the first article of the mentioned regulation is regulating the right to get informed of any suspect during investigations regarding their charges. The art 6 th explains that there are two sides of this information right: from a side there is a long list about the rights the suspected or the felon must be informed, and on the other side form the art 6 of the regulation we have the other side of the right that is lined with the right of the discovery of the accuse acts. As the case central problem is the change of charges and therefore the possibility of opening again even the terms for presenting the request for the agreement between the parts , it is to said that the part that would interest the case is the second one , that means the one regarding the informative of the accuse. The Court therefore link the case to the art 6 of the regulation , reporting that the suspect had not been arrested nor put in jail , and it had been notified with all the accuse charges and descriptions. The court anyways argues that the problem here is grounded in the fact that there is a change not on the title of the crime but on the facts, and it is therefore to analyse under the light of the Art 6 and the right to inform of the charges and the proofs to sustain it the defendant. The court then reports how in art 6 it’s not explain how it should be delivered such information about the accuse , but just that it shall not compete with the process equilibrium ,meaning the possibility of the equality of the judgement and of a right defense. IT is anyway clear that does not means ti is not possible for the accuse to change actually the information linked with the charges , or even the proofs found them , but the only thing to respect in this case is the necessity to the other part to know such changes , in order to be able to defend himself. It is then to add the fact that central on constant jurisprudence from previous cases, had been the title of the charges and their qualification, therefore any changes must been done in consideration of the right to defense of the defendant, that shall know anything that his contested to him. Now in italic just if the modifications are regards fact, and not the fact qualifications, the defendant could ask an agreement by art 444. Now the defendant had been informed about the changes, and as per Italian criminal procedure code, it is given to him the possibility of presenting defensive memoirs. Therefore the change the Italian judge would like to made it is regarding not the facts but instead the judicial qualifications of the fact t, but not the fact themselves s, therefor it would not possible for the defendant to open the Agreement under the prevision of a new charge. This consideration is then corroborated by the analyse of the 12/20163 regulation as a while and particular the art 4 and 6 , and then the ?TFUE : indeed ti is clearly stated that the right of defense means the defendant needs to know everything about his charges , and even about the eventual modification. Now being modified the type of charge it is not so clear if the European law would give to the judge the power of bypass a national law that actually is not colliding in anyway with the European one. Indeed, the defendant had been informed both of the changes and of the possibility of resenting defensive memoirs, and this therefore leads to the conclusion that the art 6 of 12/2013 and 46 of TFUE should be interpreted in a way in which they grant that there is the possibility for a national norm to actually not gigging the possibility not finding or apply a n agreement if the changes regarding the charges are based not on the facts that found the charges themselves s, but on the perception of them , reporting the fact remains the same , and changes just the interpretation of them.
Euro Case Law 