Schriften des Zentrums für Europäische und Internationale Strafrechtsstudien

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2 Schriften des Zentrums für Europäische und Internationale Strafrechtsstudien Band 3 Herausgegeben von Arndt Sinn

3 Stefano Ruggeri (ed.) Liberty and Security in Europe A comparative analysis of pre-trial precautionary measures in criminal proceedings With 3 figures V& R unipress Universitätsverlag Osnabrück

4 Bibliografische Information der Deutschen Nationalbibliothek Die Deutsche Nationalbibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detaillierte bibliografische Daten sind im Internet über abrufbar. ISBN Veröffentlichungen des Universitätsverlags Osnabrück erscheinen im Verlag V&R unipress GmbH. Sponsored by the University of Messina and the University Consortium Megara Ibleo (CUMI). 2012, V&R unipress in Göttingen / Alle Rechte vorbehalten. Das Werk und seine Teile sind urheberrechtlich geschützt. Jede Verwertung in anderen als den gesetzlich zugelassenen Fällen bedarf der vorherigen schriftlichen Einwilligung des Verlages. Printed in Germany. Druck und Bindung: CPI Buch Bücher.de GmbH, Birkach Gedruckt auf alterungsbeständigem Papier.

5 Contents Acknowledgements Renzo Orlandi Introduction. The protection of the right to liberty and security in the field of pre-trial precautionary measures in criminal matters I. The supranational frameworks A) The ECHR system of protection of personal freedom Enrico Marzaduri The application of pre-trial precautionary measures Paola Maggio Judicial reviews against deprivation of liberty B) The harmonization at European Union level Sabela OubiÇa Barbolla The European Arrest Warrant in Law and Practice Tommaso Rafaraci The application of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention II. The perspective of domestic legal systems Richard Vogler England and Wales Arndt Sinn Germany

6 6 Contents Giuseppe Di Chiara Italy Víctor Moreno Catena Spain III. Comparative Analysis Stefano Ruggeri Personal Liberty in Europe. A comparative analysis of pre-trial precautionary measures in criminal proceedings IV. Annex Questionnaire on Pre-trial Precautionary Measures in Criminal Proceedings. A comparison between England and Wales, Germany, Italy and Spain The Authors

7 Acknowledgements This book is the result of comparative research on the right to liberty and security in Europe in relation to pre-trial measures of coercion. This research, which was promoted by my chair of criminal procedure at the Law School of the University of Messina and the University Consortium Megara Ibleo of Priolo Gargallo (Syracuse), has been carried out over more than one year by distinguished scholars of criminal law and procedure from four European countries, whom I sincerely wish to thank for their valuable contributions to this initiative. A special thank goes to Prof. Dr. Arndt Sinn for his generous hospitality in allowing us to publish in the ZEIS-Reihe, for which I feel highly honoured. I am very grateful to Prof. Dr. Richard Vogler for his irreplaceable support in conducting this research. Many people have collaborated, in different fashions, in this research and I would like to thank my entire chair team, especially Simona Arasi, Alessandro Arena, Giusy Laura Candito, Federica Crupi, Irene Giaimi, Letizia Lo Giudice. This book could not be completed without the extraordinary support of my wife Norma and my two daughters, Anna Lucia and Maria Isabel, whose patience and encouragement have compensated my inexperience and constantly accompanied me during the coordination of this research. Stefano Ruggeri

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9 Renzo Orlandi Introduction. The protection of the right to liberty and security in the field of pre-trial precautionary measures in criminal matters Table of Abbreviations CPP Codice di procedura penale (Code of Criminal Procedure) EAW FD Framework Decision on the European Arrest Warrant GC German Constitution IC Italian Constitution StPO Strafprozessordnung (Code of Criminal Procedure) Freedom and security : this topical binomial has become almost fashionable in legal publications of the last decade. Previously, the literature used to contrast individual freedom with the repressive function of the state; private versus public; the individual against authority. Today we prefer to set the value of individual freedom against the value of individual security. Each of us has the right to see his own freedom respected and can demand from the State that this right be made effective against external aggression. At the same time each one of us has the right to security, as citizens demand that the State guarantee protection against attack by third parties. It is a change that marks a turning point, at least in the context of continental European legal culture, worthy of careful consideration in an environment grounded for centuries on the city-state and the contraposition between authority and the individual. Today this antithesis is played out in the rights arena and has been narrowed to the individual sphere (freedom and security), while the State appears in the guise of a neutral guarantor of both these rights. The need to ensure the security of one individual justifies limiting the freedom of another. Since the waning of the great Utopian matrix ideologies of the 19 th and some of the 20 th centuries, where the state was an institution immeasurably superior to individuals, criminal justice has been gradually stripped of its holy, authoritarian aura that garnered assent in the name of usefulness. This has not necessarily led the system to be any less harsh. It continues to seem cruel, and sometimes even unfair. It has, however, led to the current idea that punishment

10 10 Renzo Orlandi is no longer tied to abstract state interests but rather linked to affirmed and contingent individual needs. It has transformed the entire field of security, in the many situations of life where it may be at risk. Security has become a constant requirement, tapped into by every ruling class to increase its political consensus and leverage. This aspect concurs to explain, in my view, the evolution towards prevention of modern criminal systems. An offence against a traditional legal right (property, health or physical integrity) is to be compensated by adequate remuneration. As an alternative, the security good must be ensured by prevention or at least by trying to avoid the many dangers threatening our lives. This transformation has also involved the criminal trial. Its institutions that have been moulded to comply with the increasing demand for security. In this regard, the issue of pre-trial precautionary measures is highly revealing. Starting in the second half of the last century, we have been witnessing a gradual tendency for pre-trial precautionary measures to be increasingly given a preventive role. In England, the first sentence justifying the refusal of bail with the argument of the danger of future crimes dates back to This approach was then codified by the Bail Act of In Germany, the trend started with 1964 legislation that for the first time included the Wiederholungsgefahr as a precautionary requirement in criminal proceedings for sexual offenses. A few years later in 1972, the rule would be extended to the widest range of crimes listed in the 112 StPO, with the choice endorsed by the federal Constitutional Court, broadly equivalent to the presumption of innocence. 2 Similar considerations apply to Italy, where any consideration of a precautionary purpose was for a long time absent from mandatory detention for serious crimes. 3 The preventive purpose began to establish itself in certain preventive measures of real coercion provided for by special laws (e. g. seizure of spoiled food, obscene press). The mid 70s saw explicit recognition of personal pre-trial precautionary measures with the denial of bail to people who endangered the need for community protection. 4 The marked preventive slant of precautionary measures is the most obvious manifestation of that judicial substitution denounced as pathological by the doctrine of the 1970s. 5 Indeed, this may be said to have become common practice. 6 Moreover, the phenomenon has understandably developed with par- 1 Vogler, infra. 2 Sinn, infra. 3 Art. 253 Italian CPP Art. 1 Italian Law 152/ Paradigmatic in this regard is the study of Nobili, pp. 51 ff. 6 Di Chiara, infra.

11 Introduction 11 ticular virulence in countries like Italy, where time-to-trial is exceedingly lengthy. But even in situations where criminal proceedings have an unreasonable duration, the function of the precautionary institutions has gained increasing importance in concomitance with the increasing focus on prevention by anticrime policies. 7 How precautionary proceedings are played out anticipates the trial judgment of the main proceedings. Indeed, it is often the pre-trial precautionary approach that matters most, not least because it entails the swift, effective sacrifice of the very same right threatened by eventual punishment. Furthermore remedies, if any, against personal pre-trial precautionary measures do not have the effect of suspending enforcement. Punishment and pre-trial precautionary measures are of course placed on separate planes on account of the presumption of innocence principle that is widely acknowledged and celebrated in all systems to which the contributions in this volume relate. But formal recognition of the principle does not prevent limitations on freedom or a precautionary measure from acquiring the connotations of punishment. This particularly applies to precautionary measures enacted on the grounds of the likelihood of committing future crimes, a motive now codified in almost all contemporary legal proceedings and one in which it is difficult to distinguish preventive from effective punishment. It must be admitted that personal freedom is now threatened by the process rather than by the execution of the sentence. This deserves careful consideration. Indeed it is difficult to deny that during the pre-trial proceeding the merits of the case are discussed in advance, a fact that is confirmed by the daily bickering we constantly witness over the rules governing the precautionary procedure. The Italian example is very meaningful. No section of the code has developed so copiously and with such detailed case law as personal precautionary measures. Interventions by entire criminal units have been very frequent. The central dataprocessing unit of the Italian Court of Cassation has about three hundred results for the enquiry entry personal precautionary measure! Is this a sign of the feverish vitality of precautionary institutions? This vitality that is also reflected in the frequent positions taken by the Italian Constitutional Court and the ceaseless work of legislative reform on the provisions contained in Book IV of CPP. The studies presented in this volume confirm that other European systems face the same situation. In Spain, Germany, England and Wales, precautionary measures have increased in importance from the very moment in which the value of personal liberty had to square with security concerns in their multiple 7 Enlightening, in this regard, is the essay by Hassemer, pp. 321 ff.

12 12 Renzo Orlandi forms: security in the suburbs, in crowded spaces (airports, stations, stadiums etc.), but also on the streets or in the work place. Comparing the practice of different legal systems provides us with a deeper knowledge of each national legislative framework. Being able to look beyond our own sphere and connect it to the wider world enriches our vision and capacity to comprehend because we are forced to take a step beyond our own juridical origins. In so doing, the similarities between institutes become even more important and gain increasing significance. In addition, the doctrines elaborated on the comparison among the institutes can be unexpectedly useful to improve an understanding of our own normative background. This should be kept in mind when reading and interpreting the present work. However, one should not remain merely on the surface of these similarities. For example, the issue of fumus commissi delicti, (i. e. the circumstantial threshold imposed in order to resort to measures of personal coercion), is referred to in various procedural systems with a standard lexicon whose meaning appears identical: probable cause, gravi indizi di colpevolezza, dringender Verdacht, indicios suficientes de un hecho criminal imputado, all of which seem to allude to the same phenomenon. In reality, as soon as we delve into the meaning of these wordings in the case-law, we note unexpected differences; differences, however, that present to the scholar precious opportunities for growth and refinement. The same holds true for pericula libertatis, which have with time been arranged in a way that reveals curious parallels in the evolution of the different normative statutes. For example, questions of the genuine evidence, the risk of flight, and the risk of repeated offence nearly everywhere justify the restriction of personal liberty within the framework of the presumption of innocence. But are we sure that these terms are understood in the same manner? For example, the Italian pericolo di fuga 8 usually refers to the risk that once sentenced, the defendant might avoid enforcement of the sentence. Fluchtgefahr, on the other hand, as provided by StPO, refers to the risk that the defendant might escape from juridical authorities during trial. Hence the attendant precautionary measure motivated by Fluchtgefahr serves to ensure the presence of the defendant at the hearing. Another superficial similarity is evident in the series of grave crimes for which the limitation of personal liberty is conceded, provided there is a precautionary measure to be observed. 9 Similar rules are found in England and Wales. 10 The difference lies in the 8 Art. 274(b) Italian CPP. 9 See respectively Art Italian CPP and German StPO. 10 Vogler, infra.

13 Introduction 13 series of crimes the measures aim to prevent, whose gravity moreover differs in the different countries. Since 11 th September 2001, however, it can be said that international terrorism has become an obsession shared by all western countries and contrasted with precautionary measures. Also of note is the theory of the principle of proportionality set down by the German federal Constitutional Court at the beginning of the 1950s and gradually developed by European criminal procedural doctrines on the limitation of fundamental rights. It is a principle of practical rationality whose dissemination in European doctrines and jurisprudence has been possible thanks to the common principles underpinning the constitutions of post-world War II continental Europe, built around the fundamental value of human dignity 11 and the inviolable rights of the human person. 12 The principle of proportionality may be broken down into three categories of suitability (Geeignetheit), strict proportionality (Proportionalität im engeren Sinne) and adequacy or necessity (Erforderlichkeit). As a principle it has become an essential criterion used mostly by constitutional judges (also in Italy) and by the Court of Strasburg to balance the need for repression with concerns for individual human rights. 13 It has proved a much more congruent instrument of rational justification than the (exclusively political) criterion of reasonableness used for years by the jurisprudence. Yet a mere comparison of precautionary measures would be a very limited exercise and should entail much more than speculative interest. Looking at foreign solutions serves to better understand one s own situation. In the case of precautionary measures, it can have very real consequences in terms of practice and application. Today, the FD EAW requires that criminal law magistrates of the Member States know the rules governing precautionary measures applied by the states involved in the request. Of importance to these ends are all the details contained in the precautionary measures procedure: from the premises required (serious circumstantial evidence of guilt), and the precautionary requirements (the socalled pericula libertatis), to the series of defence guarantees set down by procedural laws. 14 In a recent case coming before the Italian Court of Cassation, the question arose of the possibility of transferring a suspect to a country (Germany) whose system does not set maximum time limits of detention. 15 An accurate examination of the norms contained in the StPO, particularly , was nec- 11 Art. 1 GC. 12 Art. 2 IC. 13 See respectively Marzaduri and Maggio, infra. 14 Rafarci, infra. 15 Cass. (SU), Decision of , Ramoci, in: Cass. pen. 2007, p. 911.

14 14 Renzo Orlandi essary to establish that the German legal system does provide a limit to the duration of preventive detention even if in a different way to the measures envisaged by Articles 303 ff. of the Italian CPP. Another thorny application problem regards the value to be attributed to preventive detention when other countries are involved. Under Article 33 of Italian Law 69/2005, time is counted according to Articles and 304 CPP. However, according to the Italian Constitutional Court, 16 in addition to the overall time limit set by the mentioned Article CPP, the computation must also include the phases mentioned under the previous paragraphs of the same article and may imply an attentive consideration of any investigation phase entailing a criminal process outside Italy. In conclusion, the EAW constitutes a powerful factor of interaction and harmonization of European procedural systems. It is largely thanks to the EAW that we have been encouraged to broaden our perspective and consider how each of our particular systems deals with the issues of liberty and security against the backdrop of the normative framework of other European countries, their doctrines and jurisprudence. The studies contained in this volume are a precious contribution in this direction. Bibliography Hassemer, Winfried, Sicherheit durch Strafrecht, in: Strafverteidiger (2006), pp. 321 ff. Nobili, Massimo, La procedura penale tra dommatica e sociologia: significato politico d una vecchia polemica, in: La questione criminale (1977), pp. 51 ff. The chapter contributions of this book are quoted with the only reference to the Author s surname, infra. 16 Constitutional Court, Decision 143/ 2008.

15 I. The supranational frameworks A) The ECHR system of protection of personal freedom