The Italian Court of Cassation, in a series of very interesting decisions, has censured some decisions pronounced by the Italian judicial authorities which had devalued the role of the European Investigation Order (EIO), instead recognising the validity of the instrument.

In an initial decision – no. 8320 of 31 January 2019 – the Sixth Chamber of the Italian Court of Cassation had criticised the delayed communication to the defence of the decree recognising an EIO issued by Germany in tax evasion proceedings[1]. According to the Italian High Court, this should be seen as a clear breach of Article 4(4) of Italian Legislative Decree no. 108 of 21 June 2017, which transposed the European EIO Directive into Italian law. In accordance with that article, when – as in the case of searches – Italian law establishes “only the right of the defender to attend the performance of the act without prior notice“, the recognition should be communicated “at the time when the act is performed” or, at least, “immediately thereafter“.

Subsequently, in a very recent decision of 7 February 2019[2], the Italian Court of Cassation challenged an even more serious transgression concerning a similar EIO, also of German origin, in a similar case. In particular, not only had the recognition decree not been communicated in time, but it had not even been formally adopted. The records of proceedings then only recorded the act of receipt of the EIO, as evidenced, moreover, by the specific form which must be drawn up by the Italian authority pursuant to Article 6 of the Legislative Decree. This was, therefore, an acknowledgement of mere “fact“, rather than of the specific measure that should be issued within thirty days of receipt of the EIO according to Art. 4 §1 of the Legislative Decree.

With these decisions, the Court of Cassation drew attention to the importance and function of recognition as a crucial step for ascertaining the conformity of the EIO with the essential principles of the executing State and the fundamental rights of the persons involved in the investigation. Such recognition must be duly motivated and sent to the defence in good time for a feasible challenge to be made by way of opposition to the Italian Judge for Preliminary Investigations on the basis of Art. 13 of the Legislative Decree. On the contrary, claiming to consider as equivalent to the recognition the mere receipt of the EIO, which is expressed in the “drafting of a document with a pre-established content and with a merely informative purpose concerning the indicative data of the EIO and of the issuing and receiving authority” risks generating a dangerous threat to the rights of the persons involved.

 

Author: Dr. Caroline Peloso, post-doc researcher at UNITO

 

[1] Cass., Sect. VI, sent. 31 January 2019 (dep. 25 February 2019), no. 8320, Pres. Paoloni, Est. De Amicis, in proc. Creo

[2] Cass., Sect. VI, sent. 7 February 2019 (dep. 2 April 2019), no. 14413, Pres. Petruzzellis, Est. De Amicis, ric. Brega