Day #19

Prosecution submission on the constitutional complaint. Iuventa defense requests ruling by EU Court of Justice on translation

The preliminary hearing on 26 May 2023 lasted less than two hours. The prosecution presented its arguments for dismissal of the constitutional complaint filed by Iuventa defense lawyers in the previous hearing.

In the complaint, the defense challenged the legitimacy, on several grounds, of Article 12 of Italy’s Consolidated Immigration Act (Testo unico sull’immigrazione (TUI), based on Legislative Decree 286/1998) (see report from 12 May 2023).

In response, the prosecution asked the judge to dismiss all questions of constitutional illegitimacy concerning the “facilitation” offense and related aggravating circumstances on the basis that the challenges are manifestly ill-founded. The prosecutors stressed that these are specific criminal policy choices which fall within the legislator’s discretion. They cited case law from Italy’s Court of Cassation (Corte di Cassazione) interpreting Article 12 TUI and Article 10 bis TUI, which protects the integrity of Italian borders and fines foreigners who cross the border in an irregular manner. Yet, the prosecution did not elaborate further on how the legislator’s choice to criminalise such different conduct was in line with the constitutionally mandated principles of reasonableness and proportionality in law, which constituted the core of the defense’s challenges on the point. The Prosecution also refuted issues of illegitimacy raised by the Iuventa defense regarding the scope of application of the “humanitarian exemption” under Article 12 paragraph 2, which limits criminal accountability to acts that are carried out for the benefit of foreigners who are already on Italy’s territory. They argued that defense’s challenges were irrelevant since this ground for exclusion from the criminal offence is deemed not applicable to the present proceedings.

The lawyer representing the State Legal Service of Palermo (Avvocatura dello Stato) endorsed all of the prosecution’s submissions on behalf of the Ministry of the Interior, who has been admitted by the judge as civil party in this case (see report from 25 February 2023).

Following the presentation of the prosecution’s arguments, the judge gave the floor to Iuventa defense lawyer Nicola Canestrini to submit requests concerning German-language translation of essential documents from the prosecution’s file.

On 17 March 2021, the defense had asked the prosecution to provide translation of investigative documents deemed essential for the Iuventa defendants to exercise their right to effectively understand the charges against them. On 29 March 2021, the Office of the Public Prosecutor had rejected this request by arguing that the documents indicated by the defense were not among those for which Italian law provides for mandatory translation under Article 143 of Italy’s Code of Criminal Procedure (hereinafter “c.p.p.”). Simultaneously, the prosecution had forwarded the defense’s request to the judge for interpretation of the so-called “essential documents” under Article 143 paragraph 3 c.p.p., which provides the option for the judge to order the free translation of “other documents or even only part of them, considered essential for the defendant to understand the charges against him” (unofficial translation). As a result, the judge had decided to partially grant the defense’s request and had ordered the translation of, in particular, a police summary report (but not of its annexes) in the prosecution’s file.

However, to date, the Iuventa defense lawyers claim that they still lack translations of investigative documents essential for the defendants to exercise their rights. Therefore, Canestrini submitted two requests to the judge in Trapani. Firstly, he reiterated the request that the prosecution provide the full translation (traduzione integrale) of 446 investigative documents of various content (audio, video, documentary etc..), which constitute the annexes to the previously translated police summary report. Secondly, Canestrini presented a request for a preliminary ruling by the Court of Justice of the European Union (CJEU) on interpretation of what should constitute so-called “essential documents” under Article 3 of the Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings. Article 3 establishes a duty for EU Member States to ensure that suspected or accused persons who do not understand the language of the proceedings are provided a written translation of all documents that are essential for the proper exercise of their defense. However, the text of the Directive leaves interpretation of what constitutes “essential” content to the discretion of national prosecutors and judges. Therefore, the Iuventa defense raised issues regarding the compatibility of Article 143 c.p.p and the Directive 2010/64/EU, arguing that a pronouncement by the CJEU would be crucial for the meaningful exercise of the defendants’ rights.

The next hearing is scheduled to take place at the Court of Trapani on 23 June 2023. The judge may already decide on both the constitutional complaint and the request for a preliminary ruling by the CJEU brought by the Iuventa defense.