Appeal Court of Rome – in English

TRANSLATION FROM ITALIAN INTO ENGLISH

Number 3857/04

REPUBLIC OF ITALY

IN THE NAME OF THE ITALIAN PEOPLE

HIGHEST COURT OF APPEAL

FIRST CRIMINAL SECTION

 

JUDGMENT NUMBER 82/04

GENERAL REGISTER NO. 031949/2003

COURT SESSION HEARD

IN CHAMBERS

ON 09/01/2004

Consisting of the following persons:

(Doctor) TORQUATO GEMELLI                                JUDGE PRESIDENT

1. (Doctor) GIORGIO SANTACROCE                       JUDGE MEMBER

2. (Doctor) ANGELO VANCHERI                                           “

3. (Doctor) GIANCARLO URBAN                                           “

4. (Doctor) PIETRO DUBOLINO                                            “

handed down the following     JUDGMENT / [order – cancelled]

in the appeal submitted by:

1) VITO ROBERTO PALAZZOLO      born on 31/07/1947

opposing the ORDER handed down by the Court of Palermo on 30/06/2003

Having heard the submission made by Judge ANGELO VANCHERI

Having heard the concluding arguments made by (Doctor) LORIS D’AMBROSIO, who asked that the appeal be dismissed,

The Court makes the following observations:

Present as defence counsel, Alfredo Angelucci, substituting counsels Salvatore Traina and Franco Luberti, who have asked that the appeal be granted, observes as follows:

IN FACT AND IN LAW

In terms of judgment handed down on 30/05/2003, the Review Court of Palermo, following the postponement handed down by this Court with judgment dated 18/02/2003, rejected the appeal submitted in terms of article 310 of the Criminal Procedure Code by VITO ROBERTO PALAZZOLO against judgment handed down on 18/3/2002 by the Judge President of the Court of Palermo, who in turn rejected the request to cancel the precautionary custody measures that had been applied in relation to Mr Palazzolo, who was under investigation for the crime of Mafia criminal association (“cosa nostra”) and indicted Mr Palazzolo for the above crime.

The Court notes that:

·         Even though the Court of Rome had handed down an acquittal order on 28/03/1992, in terms of which Mr Palazzolo was acquitted for the same crime because the facts did not exist, the measures taken were adopted in relation to conduct that took place during a period of time subsequent to the above judgment;

·         The evidence of guilt against Mr Palazzolo were drawn from affidavits made by the informants Salvatore Ciulla and Salvatore Palazzolo, who in fact made reference to events both preceding and subsequent to the date of 28/03/1992, and formulated a sufficiently serious framework of evidence, so that even though they referred to events arising from a previous period, they could also indicate that the accused participated in a criminal organization during the period subsequent to the acquittal.

·         On the 1/9/1994, Mr Ciulla again confirmed that Mr Palazzolo was a “man of honour” belonging to the Cinisi “family”, and identified him as a friend [Translator’s note: literally, one man christened the child of the other, and so become “co-parents” of the baptized child] of Antonino Madonia. The references made to events from a previous period could be used to demonstrate the reliability of this informant.(state witness)

·         Mr Palazzolo’s continued involvement in the said criminal association was demonstrated both by his shareholding in PAGEKO, which was proven to be a subsidiary of CRISTEL BIERSACK IMPORT EXPORT GBM, and of which the abovementioned Madonia was managing director; and also by the contact that he had with two members of the mafia (certain, Giovanni Bonomo and Giuseppe Gelardi) who came to see him in South Africa, where Mr Palazzolo had been resident for a number of years and had acquired citizenship. His association was further demonstrated by reason of the well-known permanence and unbreakable nature of any connection to a mafia type association.

·         The contents of a telephone conversation between the accused and his sister, referred to by the defence, did not exclude the continued involvement of Mr Palazzolo in a mafia organisation.

·         The fact that the case documents relating to the murder of Agostino Badalamenti in which Mr Palazzolo was involved, had been filed in the court archives, had no relevance in excluding Mr Palazzolo from belonging to the criminal association. The informant, Salvatore Palazzolo had already spoken of Mr Vito Palazzolo’s involvement in the strategy planning of the organization;

·         The elements acquired subsequently were in no way new, and were not such that they would affect the framework of evidence that had emerged.

Mr Palazzolo’s defence counsel opposed this judgment on his behalf, relying upon:

1)       The invalidity of the contested judgment in that the Court erroneously considered the advice notice of set down for the 8/5/2003 hearing of the appeal to have been carried out correctly in terms of article 165 of the Criminal Procedure Code,  on the simple basis that the question had been covered by judgment handed down in the postponement, and that the accused was therefore to be considered as a fugitive because the processing authority had not revoked this status, even though the defence had timeously pointed out that he could no longer be considered inaccessible as he had elected domicile at his sister’s home in Cinisi, and that the South African authorities had denied the request for the extradition of the accused. Accordingly the requirements of the law regarding a fugitive did not apply, namely that the accused was untraceable and that he had voluntarily evaded the execution of the precautionary measures;

2)       The infringement of articles 273, 192 and 649 of the Criminal Procedure Code, on the following basis:

(a)               As Mr Palazzolo had not returned to Italy since 1982, his belonging to a mafia association appeared to be based essentially on some kind of fictio iuris (legal fiction), based on the mere assumption that his affiliation should be considered indefinitely permanent and universal;

(b)               The co-accusation of informers who had collaborated with the prosecution relating to events in the distant past had no bearing on the current situation;

(c)               His alleged conduct was already considered as being covered by the judgment, since he had been conclusively acquitted on the same charge of mafia association by the Court of Rome with judgment handed down on 28/3/1992 because the fact did not exist, and had been excluded of any involvement in the Badalamenti murder. Accordingly, given the necessity of correlating the seriousness of the evidence upon which the accusations were based to a “novura” (new situation) that related to facts and circumstances that occurred after the acquittal judgement, it would not be possible to use allegations made by informants (state witnesses) relating to events and aspects that happened subsequently to judgment that had been handed down and already concluded the matter.

(d)               The alleged abetting as fugitives in a foreign country of two mafia exponents (Mr Bonomo and Mr Gelardi) was not plausible for the simple reason that the two men had left South Africa already before a warrant had been issued in their names, and a framework of proof could not be formulated on the basis of a casual meeting which took place thousands of kilometres away from Italy.

(e)               The Judge ruling on the postponement could not take refuge behind the principles applicable to the appeal, but should have also examined and resolved the new questions of law that had been presented to him for examination for the first time by the defence.

The plaintiff’s defence counsel subsequently presented new arguments in relation to the alleged infringement of the ne bis in idem principle, and in particular:

1)      That it was necessary to distinguish between the phenomenon of judicial interruption of permanence that allows for an independent evaluation of subsequent facts, from the limiting effect of the principle indicated above, that would prevent new proceedings based on prior conduct;

2)      That the interruptive effect of permanence could only be constituted in the case of a possible conviction, while it could be excluded in the case of acquittal for material non existence of the fact of mafia association, and given the existence of the previous judgement, permanence must be excluded at the outset, and in order to have any criminal relevance the subsequent conduct must be presented as a completely new fact without any connection to the previous conduct;

3)      That the “new sources of evidence” that cropped up after the acquittal judgment, cannot be the same ones already considered by the judge and referring to time periods occurring in the distant past, but must necessarily originate from an action that is totally unconnected to the proceedings that have already been finalised, there being no provision in the law that allows for the re-evaluation of evidence “noviter repertae”or “productae” relating to a fact that was excluded by the judgment itself, nor can a subsequent factual reality be evaluated by means of evidence of facts that occurred after that decision;

4)      That the Review Court totally and unlawfully failed to examine the defence’s observations, regarding among others the evidence given by the informers Ciulla and Salvatore Palazzolo: the first could not testify as for any fact relating to the conduct of the accused after the 28/3/1992, as the accused was absent from Italy from 1982; while the latter testified exclusively on “de relato” facts, and then only in a totally general and incomplete fashion.

The above arguments were then further illustrated in a subsequent memorandum issued by the defence.

On the above premise, the Court notes that the appeal has merit and is to be granted.

It is nevertheless first of all necessary to state that we cannot find the nullity claimed by the plaintiff in respect of the notification advice regarding the hearing on the 8/5/2003 in accordance with article 165 of the Criminal Procedure Code, even though the accused had chosen domicile at his sister’s residence, and even the fact that the extradition request was denied by the South African authorities.

This decision is justified, not by virtue of the reason adopted by the Review Court, which considered the matter to be covered by the judgment following the postponement order handed down by this Court on 18/2/2003, and which had at the time denied a similar exception because the above judgement clearly related to the notification of the previous review judgement hearing and cannot have any relevance in the notice of hearing relating to the subsequent review judgement; but simply because the status of Mr Palazzolo as a person under investigation (now accused) is still formally and legitimately considered that of a fugitive, in terms of judgement handed down at the time by the previous judge.

Besides which, the election of domicile indicated above, related to other proceedings currently under way before the Court of Appeal in Palermo, and not the main case currently pending before the Court of the same city, and therefore would have no effect on such latest matter, and consequently on these interlocutory proceedings.

The fact that the extradition request was denied also has no effect on Mr Palazzolo having been declared a fugitive, in that this negative provision does not in itself change the fact that even though Mr Palazzolo was fully aware of the custody measures that had been issued on his behalf, he still continued to voluntarily evade the execution of the measures by continuing to reside in South Africa.

It cannot be denied that he is exercising his own legitimate (lawful) choice, but he then cannot expect that the situation indicated above implies an automatic revocation of his status as a fugitive. The revocation can only result from a revocation or a declaration of the nullity of these restrictive provisions.

For the rest, we share the plaintiff’s censures.

As was correctly pointed out by the defence, we need to start from the uncontested and undisputable fact that Mr Palazzolo was acquitted on the charge of participation in a mafia association, to which he allegedly was a party until the 28/3/1992, the date on which the acquittal judgment was handed down by the Court of Rome.

From this we must inevitably conclude that the formulation of any possible continued participation in a mafia organisation can only be linked to facts or conduct subsequent to the above date, as we can no longer refer to events and circumstances prior to this date, since they conclusively fall subject to the acquittal judgement, which excluded the possibility that such facts could give rise to the conclusion as a fact that the accused had participated in a criminal association during the period under consideration by the above judgement.

It is true however, as was duly observed by the Court of Review, that in order to formulate a framework of evidence, it is possible to make reference to prior elements of proof should they be indicative of the accused’s participation in a mafia association in a subsequent period.

But, apart from the consideration that the elements of proof must relate to events that have in fact occurred, this formulation would be unassailable if the judgment from which the continued existence of the crime were to be derived, was a judgment that carried a conviction. We are dealing here instead, with an acquittal judgement based furthermore on the non existence of the alleged facts, where any aspect or element of proof arising from a previous period and that has already formed the basis of this previous evaluation, cannot be used again as the basis for a contention relating to the alleged conduct of participation subsequent to the acquittal judgement, which had already excluded Mr Palazzolo’s participation during the previous period and in terms of which these elements have lost any probative value. The only value that can be afforded these elements of proof is that of a simple and generalised point of reference relating to conduct, events and situations that took place in a previous period, and that could, needless to say, be such that they carry the weight and bearing of serious evidence indicating guilt in accordance with, and in terms of provisions 1 and 1-bis of article 273 of the Criminal Procedure Code.

In charges of association, the interruptive effect of permanence of the crime must refer to the judgement (even in cases where it is not irrevocable), ascertaining the guilt of the accused, and consequently that the portion of illegal conduct committed subsequently to the above judgement is still subject to prosecution, as a separate crime. But, when an acquittal judgement has been handed down, it is inconceivable to consider any continued existence of the criminal conduct that has already been excluded by the court and by judgment handed down, and all the effects of exclusion outlined under article 649 of the Criminal Procedure Code would then be effective. So that, once the material elements of the crime have been set aside, an unlawful situation (which was deemed never to have existed) cannot substantiate the legal case against the person being investigated (or the accused).

To cite some examples from the case at hand, we could extrapolate circumstantial elements of proof from the continued personal or business relationship between Mr Palazzolo and Antonino Madonia (and then only if the latter were still alive), or from the fact that during the period subsequent to 28/3/1992, he might have – or could have had a shareholding in companies or businesses that were clearly managed by persons belonging to the “cosa nostra” association, but certainly not from the shareholding that he previously held in a company that at the time was linked to other companies that had been managed by a member of the mafia, nor from the general declaration (that is lacking in any proof) that he was involved in the strategy planning of the organisation.

This is all the more significant in the case in question, where it appears that Mr Palazzolo has not set foot in Italy since 1982.

On checking the elements of proof relating to the judgement being contested, we note that there is only one element that comes to light as being sufficiently specific, this being the incident in 1996, where Mr Palazzolo offered hospitality in South Africa to two member’s of the mafia family that Mr Palazzolo is accused of belonging to, while all other references are completely vague and generalised, as the court limited itself to the statements made by the informants, who recalled events both prior and subsequent to the date of 28/3/1992, without giving any specifics or details, and to the just as generalised observation that the connection to a mafia type association can by its nature be considered to be unbreakable and permanent.

Apart from the fact that the two people indicated above were not subject to any custody measures at the time, it is more than obvious that the above elements of proof as they stand, cannot formulate a sufficiently serious framework of proof to comply with the requirements of the law.

Furthermore, we need to add that the Review Court committed an error in that it did not consider it necessary to examine the defence’s observations regarding facts that subsequently came to light in favour of the accused, on the basis of the devolutionary principle of the appeal.

The abovementioned principle should not in fact be understood to totally preclude the evaluation of subsequent facts that come to light, but should rather prevent the introduction of new and unrelated subject matter to the petitum, so that within the context of the subject matter being contested and the reasons proposed for the contention, the court is recognised as having the power to base its own decision “on different or subsequent elements [of proof] compared to those used by the judgement being contested”, and specifically the elements acquired following any additional integrated investigations carried out by the Public Prosecutor or by the defence, or following the examination of witnesses during trial. (In this regard, refer to Appeal Court, Section VI, judgement number 39750 dated 17/10/2002, Scarpetta; Section VI, judgement number 931 dated 12/3/1998, Schiavone; Section I, judgment number 5504 dated 23/10/1996, Ferro; Section VI, judgement number 1971 dated 17/5/1995, Lucarelli; Section VI, judgment number 617 dated 16/2/1994, Zellino, etc.)

Given the general principle that the conditions which had justified the issuing of the precautionary measures at the time, should still be required and continue to exist, the same court is recognised as having the power to immediately revoke these measures, since the conditions for their application no longer exist. (Refer to Appeal Court, Section III, judgement number 7674 dated 17/1/2002, Federici; Section II, judgement number 1134 dated 22/2/1995, Martucci).

This solution would in fact appear to not only meet the requirements of substantive justice, but would also be in the interests of procedural economy, as it would seem unnecessarily unwieldy and formalistic to suppose that, even in the case of the discovery or acquisition of incontrovertible proof in relation to the innocence of the person being investigated or the accused, the latter could not formulate an application within the context of an appeal under article 310 of the Criminal Procedure Code, founded on these new elements of proof, and would be compelled to submit a different application to revoke the precautionary measures imposed on him.

On the basis of the considerations outlined above, the judgement being contested is to be set aside as being flawed, since it contravenes the law, and is lacking in foundation. It is consequently referred back to the same Court of Review, which should consist of a different panel of judges, for a new judgement to be handed down, that would take into consideration the concepts and principles outlined above.

FOR THIS REASON

The judgement being contested is annulled and referred to the Court of Palermo for review.

Thus decided in Rome, 9 January 2004.

SIGNED: JUDGE                                            JUDGE PRESIDENT

[Stamp: filed in the Registrar’s Office 30 January 2004. Signed: the Registrar]