Have you been sentenced in Italy and want to know how to serve your sentence in another EU state? Do you live abroad and want to know how to execute an Italian judgment without leaving your family? Have you received an order of execution of a sentence and want to know how to go to the Supervisory Court for the execution of the alternative measure of probation to social services in another state?
If the answer to these questions is yes, I advise you to continue reading this article carefully in which the H24 Criminal Lawyer in Italy explains in detail how to request the execution of the sentence as an alternative to detention in a foreign state.
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What does the law provide in case of conviction in Italy?
In case you are notified of a suspended execution order of a judgment of an Italian court, you can apply to the Supervisory Court for alternative measures to detention in a foreign state.
You should know, in fact, that the Criminal Procedure Code, in articles from 724 to 746, regulates the execution abroad of Italian sentences, according to the principles enshrined in the Strasbourg Convention on the transfer of sentenced persons, on the basis of which:
“The execution of the sentence is governed by the law of the executing State and only this State is competent to make any decision in this regard”.
With Legislative Decree no. 38/2016, Italy has adapted its system to Framework Decisions no. 909 and 947 of the Council of Europe of November 27, 2008, thus regulating the possibility, in the event of conviction by Italy, of applying alternative measures to imprisonment even in a Member State of the European Union.
This legislation, in effect, specifically regulates the case in which a custodial sentence is applied, or in any case restrictive of individual liberty, with conditional suspension or with the possibility of requesting to the Supervisory Court the application of an alternative measure to the detention, expressly providing that the sentence may also be served as an alternative to detention in another member state of the European Union.
Why was the alternative measure to detention in a foreign state considered applicable?
The main reasons that have led the judges of the Supervisory Court to consider the impossibility of executing the sentence in a foreign State as an alternative to deprivation of liberty are due to the fact that, in this way, the External Criminal Enforcement Office (UEPE) could not have carried out any type of control over the convicted person and over the path of recovery that he took in the foreign state.
Actually, as I already told you, this orientation of the Supervisory Courts is outdated in consideration of the fact that, when a conviction is recognized in a foreign state:
“The execution of the sentence is governed by the law of the executing State and this State is the only competent to make any decision in this regard”.
In this case, therefore, the controls on the execution of the sentence will no longer have to be carried out by the Italian External Criminal Enforcement Office (UEPE), becoming the exclusive competence of the foreign State in which the alternative measure must be applied.
What procedure to follow to request the execution of the sentence in an alternative measure in another state?
In the first place, you should know that the request for the execution of the sentence in a foreign State adhering to the European Union can be made from the first moment, when the Public Prosecutor notifies you of an order for the execution of the suspended sentence, in accordance with article 656 of the criminal procedure code.
In this case, therefore, even before the execution of the sentence, you will have the possibility of requesting to the Supervisory Court, within 30 days following the notification of the order of suspension of the execution, that the sentence imposed may be executed as an alternative to detention. (probationary assignment to social services, house arrest, semi-release, therapeutic probation, etc.).
During this period, therefore, you will also have the possibility to request that the imposed sentence be carried out as an alternative to imprisonment in another Member State of the European Union.
Given the particular complexity of the request, it is always advisable to rely on an Italian lawyer competent in international law, who will be able to advise you on the best solution to obtain acceptance of your request.
To whom should the request be made?
As I said before, the claim must be filed directly with the Supervisory Court upon receipt of the notice of stay of execution, in accordance with article 656 of the Italian Criminal Procedure Code, which must decide whether the sentence can be enforced in the foreign state in which you reside or in the foreign state in which you has decided to serve the sentence (this request, in fact, can be made even in the absence of domicile or legal residence in the foreign state).
You should know, in fact, that the request can be made even if you do not have a registered address in another State, however, you must justify the reasons why you want to execute the sentence imposed by Italy in this state.
Therefore, in accordance with article 5 of Legislative Decree 38/2016, the Public Prosecutor, once the request is received, proceeds to transmit the sentence to the competent authority of the executing State in which the convicted person has his legal or habitual residence.
If, on the contrary, you do not have residence or domicile in another Member State of the European Union, but have decided in any case to serve your sentence in this State, the transfer of the sentence will be subject to the consent of the other State that (in theory) could also deny execution.
What happens after I make the request?
Once the Public Prosecutor and the Ministry of Justice have informed the foreign State of your wish to serve the sentence abroad as an alternative to detention, the foreign State must order recognition of your sentence.
In this case, therefore, once the foreign State has communicated to Italy the recognition of the sentence, its execution will become the strict and exclusive competence of that State, which will be able to decide autonomously the modalities of execution of the sentence.
Therefore, the foreign State will not have to request any authorization from Italy, nor inform anyone about the methods of execution of the sentence.
It is clear that you will have to serve this sentence in an alternative regime to detention according to the specific procedures that will be communicated to you since, as I will tell you later, in the event of a serious violation of the provision, Italy could regain jurisdiction over his sentence and you will therefore again be forced to serve the sentence in Italy.
What are the cases in which Itali can recover the jurisdiction over the sentence?
Article 8 of Legislative Decree 30/2016 expressly provides for the possibility for Italy to regain jurisdiction over the execution of the sentence in the event that the foreign State communicates the termination of its jurisdiction over the execution, determined by the fact that:
- The convicted person has voluntarily avoided the execution of the sentence;
- The convicted person no longer has his or her usual residence or domicile in that state.
Italy can also summarize the jurisdiction to supervise the execution of the sentence when it takes into account, for the purposes of the decision to be adopted:
«the duration and degree of compliance with the requirements and obligations imposed during the period in which the sentenced person is under surveillance abroad».
Therefore, you will understand that in these cases, in order not to lose the possibility of executing your sentence applied by Italy as an alternative to detention abroad, it is of fundamental importance to immediately contact an Italian lawyer competent in matters of conviction in Italy, who can assist you at all stages of the procedure.
What are the judgement of the court of cassation in which the possibility of enforcement of the sentence abroad has been recognized?
As I have already told you, in many cases the Court of Cassation has considered it possible that a sentence imposed by Italy could be carried out as an alternative to detention in another State that is part of the European Union.
Indeed, it should be noted that the Court of Cassation with judgment no. 20977/2020 expressly provided that:
“after the entry into force of Legislative Decree No. 38/2016, the admission of the trial assignment to social service is allowed, even when the execution of the measure have to take place in a foreign Member State of the European Union, where the sentenced have their legal and habitual residence, in accordance with the provisions of the aforementioned Legislative Decree”.
Therefore, you will understand well, also on the basis of what was argued by the Court of Cassation, that it is perfectly possible to request that the sentence applied in Italy be carried out as an alternative to detention in another State belonging to the European Union, however, still, it is recommended, for the formulation of this request, the assistance of a lawyer in Italy with specific experience also in the field of international law.
If you have other more specific questions about how to apply for an alternative measure to detention in a foreign state for an Italian conviction, or if you would like more detailed advice on this matter, please do not hesitate to contact us.
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