L'evoluzione dell'ordine europeo di indagine penale nella lotta alla criminalità organizzata

The topic of European judicial cooperation in criminal matters represents a precious opportunity for reflection and study both on profiles strictly pertinent to the forms of collaboration and on the repercussions, it has on national procedural systems. This, above all, if contextualized in reference to the development of the European Union in its dimension of "Rechtsgemeineschaft", i.e. of community of law in whose territorial space experiences of transnational organized crime are increasingly manifest. This "community of law", as Hallstein defines it, arises precisely to achieve an ever-closer union between the European peoples, through a sphere of action comparable to that of national states, extended to various sectors of the social and cultural sphere between including international relations, internal affairs and justice. The methodological approach of this work bases its raison d'être on the analysis of the birth and evolution of forms of judicial cooperation within the European dimension to orient, then, towards the precise anamnesis of some instruments of judicial and police assistance and cooperation. Specifically, emphasis will be placed on the analysis of tools for preventing and combating transnational crime physiologically placed in the research and evidentiary acquisition phase or connected to intelligence activities for preventive purposes. The choice is certainly not attributable to the desire to draw up a ranking of importance of the institutes, but, instead, to a particular interest in terms of investigative investigations and methods of acquiring evidence. The stages that have made the development of the Union as an effective global space of justice possible will be analysed, thanks to the awareness of these profiles carried out by the Council of Europe and, in particular, by the European Commission for Criminal Problems (CDPC) responsible for carrying out in-depth and research tasks in the field of issues concerning crime. In this sense, the evolution of the Union proceeds from the attribution to it of functions in relation to the control over the movement of people, goods and capital, consolidated with the Schengen Agreement of 1985 concluded, precisely, with the aim of establishing connections between national administrations. This Agreement which, although to a merely instrumental extent with respect to the heart of this work, will be the subject of in-depth analysis by introducing a computerized system, useful both with regard to the circulation of news between the police forces and, both to monitor, directly or jointly to the corresponding authorities, suspicious persons within the territory of another Member State, restricting, if necessary, the personal freedom of the suspect even if present within the other State. The evolutionary path of cooperation is justified by the notable increase in forms of organized crime and, consequently, founded on the will of the States to fight it in collaboration, as they are aware that this method of combating it is the only form capable of obtaining concrete results. Most of the innovations introduced in this sense concern the investigative and evidentiary acquisition phase. We will focus on the results obtained regarding the introduction of new investigative cooperation tools in the procedural systems of the individual member states, in particular analyzing the Italian and Spanish ones. The evolutionary path that has taken place in the aforementioned systems will be examined above all in relation to its significant impact on the most relevant phases of criminal proceedings; that of preliminary investigations and that of judgment. This is because, since the origin of collaborative methods, the problems that have emerged regarding transnational evidentiary acquisition have always been connected to the potential divergences between the lex loci and the lex fori, which is the main obstacle to effective cooperation. As regards preliminary investigations, the new tools of judicial and police cooperation in criminal matters offer a significant contribution, to the extent that they allow a more rapid and punctual circulation of information and documents, as well as real investigative collaboration in the field. Precisely from this point of view, it can be said that a significant progression of judicial cooperation tools has been achieved thanks to the birth of the European Judicial Network, aimed at offering points of contact between judicial bodies, also through the establishment of bodies such as Europol ( European Police Office responsible for improving the police services of the Member States and their cooperation in various areas related to crime thanks to the management of an electronic information system) and Eurojust (a supranational body independent from other community institutions of political level or administrative and competent in matters of serious forms of crime for which Europol is competent or serious forms of crime, including individual ones, and participation in criminal organizations). In particular, the Judicial Network assumes significant relevance for the purposes of collaboration, both because it affects the precise reconstruction of the actual geographical extension of the criminal phenomenon, and because it offers the various judicial bodies the possibility of exchanging information with particularly timely feedback. Furthermore, the institution of Europol and Eurojust assumes an important role in the evolving context of judicial cooperation as, by offering the possibility of directly requesting the intervention of competent authorities located on site, it guarantees the timeliness necessary for a profitable activity of collection of evidence (especially when it is necessary to follow flows of money or trafficking of substances intended to leave no trace). The very organizational dimension of these bodies highlights how they were conceived and designed based on the efficiency and cost-effectiveness of collaborative action. Think, for example, of the importance of the presence of a manager for each Member State and the significant consequences regarding the profile of the use of the results achieved through these forms of collaboration. The national representative, in fact, being an expert in 'domestic' procedural and investigative rules, knows the activities and forms that the requested documents must take in order to be used within the ongoing criminal trial, taking care to promptly communicate the aforementioned to his colleagues. needs of the requesting State. The logical consequence is saving in terms of time and resources. The European Public Prosecutor's Office undoubtedly also takes on central importance. This new judicial collaboration body of the European Union, in fact, operational since 1 June 2021, was configured, in its recent establishment, as an Office responsible for investigating and prosecuting the perpetrators of crimes with serious transnational crimes that harm the financial interests of the Union (and further serious crimes, as will be seen in the remainder of the work) before the national jurisdictions of the participating States, in accordance with their procedural rules. Therefore, the potential of the European Public Prosecutor's Office is evident and, over the years, it has been believed that it can make an important contribution in the fight against transnational crime, even in its most serious forms, such as terrorism, in the face of the possible expansion of competence pursuant to the 'art. 85 TFEU. The judgment phase, however, although not the recipient of targeted in-depth analysis within the work, assumes importance as it is influenced by forms of cooperation due to the issues connected to the taking of real evidence, destined to become part of the file for and of the hearing and, therefore, to base the judge's decision regarding criminal liability. Among the tools for acquiring evidence, in the methodological approach noted above, priority will be given to the judicial assistance tool of the international letter rogatory and the cooperation tool, based, therefore, on the principle of mutual recognition of the European investigation order. As regards the rogatory letter, we wanted to analyze the perplexities deriving from the fact that the regulations envisaged for this institution - despite the progress that has been made with the recent reforms introduced in Italy regarding relations with foreign authorities for the purposes of judicial collaboration and police - still consists, in part, of conventional regulation, with that dictated by the criminal procedure code only remaining in force in residual terms. Even in this area, the aspiration for a space of global justice required that cooperation tools be innovated. For example, the regulations expressly provided for in the text of the Brussels Convention of 2000 regarding the instrument of international videoconference, which has allowed the direct and reciprocal connection between the hearing room and the place where the person whose personal appearance at the hearing is impossible is located which, following the latest reform, today also finds specific regulation within the criminal procedure code. We also wanted to give space to atypical rogatory instruments which differ, concretely, from the "classic" letter rogatory but which take on a preponderant role in the fight against transnational crime. In particular, reference is made to the concelebration of the letter rogatory and the direct acquisition of evidence by the Italian judicial authority. The latter is a topic which stimulates many reflections on the subject of defensive investigations abroad, an instrument now frequently used within the Italian legal system, in light of the need to give a balance to the powers of the parties in the process, but which does not has never found space in the context of transnational investigations. Since 5 August 2016, after a tortuous and obstacle-filled path, the law of 21 July 2016, n. has been in force in Italy. 149, which pursues the objective of strengthening and simplifying international judicial cooperation, in order to make the fight against organized crime more effective. By virtue of the enabling law, Legislative Decree no. 5 April 2017 was then adopted. 52, aimed at achieving a progressive homogenization of penal systems national on the subject of obtaining evidence, with which Italy has finally, after almost eighteen years, implemented the Convention just mentioned. In reference to this aspect, we cannot ignore highlighting those doubts that arise regarding the opportunity that this provision adopted by the national legislator can concretely provide. In fact, the legislation which has only recently been implemented is destined to be almost completely replaced by the internal transposition of Directive 2014/41/EU concerning the European Criminal Investigation Order, thus remaining, for the discipline in question, a “geographically” limited operating space. On the topic, Spanish legislation also deserves careful reflection due to the issuing of Ley 23/2014 on the mutual recognition of criminal decisions in the European Union, which represented the regulatory unification in Spanish law, in a single text, of all the decisions and framework directives regarding the instruments and measures that were awaiting timely transposition. The law - which came into force immediately on 1 December 2014 and which innovated the transposition technique, moving from an "act by act" model to a multiple transposition ("transposición en conjunto"), according to a model not dissimilar to our community law – therefore implements a wide series of community regulations, including the European directive: the detailed regulations are contained, in particular, in Title VI of the law which bears the rubric “orden europea de protección” and which consists of articles 130 to 142. Arriving, therefore, at the European Investigation Order, this instrument is characterized today as the only means of acquiring and circulating evidence at a European level and consists of a judicial decision issued or validated by a competent authority of a Member State, so that one or more specific investigative measures in another State of the Union, as well as in order to obtain evidence already in possession of the competent authorities of the executing State and be able to acquire the relevant results in a trial pending in the issuing State. The Union, as believed, has demonstrated its desire to improve and make more efficient judicial and police cooperation procedures in criminal matters, in light of the current alarm caused by the crime looming over European territory. The objective pursued with the introduction of the European Investigation Order is, in fact, to replace the current instruments of cooperation and judicial assistance in the field of research and the acquisition of evidence, with a new and more agile horizontal model, applicable to any act of criminal investigation. Despite the evident centrality that the European Investigation Order is destined to play in the context of judicial cooperation, one cannot fail to take into consideration the perplexities linked, in particular, to the balancing of the fundamental rights and interests at stake, as well as of the effectiveness of cooperation in light of the still numerous divergences between the procedural and substantive systems of the Member States of the European Union. Not marginal in this paper is also the analysis of a specific manifestation of transnational crime which has always had absolute centrality in the policies of the European Union: terrorism. What is certain is that terrorism does not constitute a new reality within the international and European scenario but, like any historical and anthropological phenomenon, it adapts, evolves and changes over time. Precisely for this reason, given the diversity of forms of international crime recorded in history, and the motivations that led to the commission of terrorist acts, although the phenomenon has been known since ancient times, today the crime of "terror" takes on new connotations , which require to be countered with equally current tools. Hand in hand with the evolution of the terrorist phenomenon and its manifestations, therefore, over the decades, there has also been a change in anti-terrorism strategies. Among the programmatic instruments, which take on a clear relevance in the evolving context of the Union's policy, it is necessary to remember, first and foremost, the "Action Plan" against terrorism launched by the Heads of State and Government during the extraordinary European Council of 20 September 2001 meeting in the aftermath of the attacks in New York and Washington, in which a series of measures were envisaged in the field of the Union's external relations and transport safety, as well as concerning the fight against the sources of terrorist financing and, above all , legislative harmonization aimed at judicial and police cooperation in this matter. The following year, Framework Decisions no. 475 of 2002 and n. 584 of 2002 concerning, respectively, the fight against terrorism and the European arrest warrant, constituted the first concrete responses offered by the European Union (at the time the European Community) in the context of anti-terrorism policy. Still within the framework of the strengthening of police and judicial cooperation in criminal matters in the prevention and fight against terrorist acts, it is essential to also place Decision 2003/48/GAI relating to the application of specific police and judicial cooperation measures whose relevance lies, in particular, in the importance given to information exchanges with preventive, investigative and evidentiary purposes, on the basis of which Decision 2005/671/GAI was issued, specifically aimed at the terrorist phenomenon, which introduced investigative coordination through a information flow on terrorist crimes both between member countries and between them and Eurojust or Europol, which enjoyed absolute priority over other requests. The issue of information exchanges is, by far, the one most affected by the reforms that have taken place over the years, by virtue of the central importance that this instrument has held, since ancient times, in the fight against terrorism (as well as, in general, against crime transnational). Still on the subject of information exchange, it is also important to take into account Framework Decision 2006/960/JHA "relating to the simplification of the exchange of information and intelligence between the authorities of the Member States of the European Union responsible for law enforcement", the Treaty of Prüm which establishes, for the first time, the exchange of biometric data. Equally important is Framework Decision 2009/315/JHA, which aims to define the methods through which a Member State in which a conviction has been pronounced against a citizen of another State of the Union, transmits information on such sentence to the State of citizenship of the convicted person. As well as, lastly, Directives no. 680 and n. 681 in 2016, concerning the collection and circulation of PNR (Passenger Name Records) and the confidentiality of data relating to criminal proceedings. Finally, among other European instruments and provisions, Directive no. certainly assumes relevance. 541 of 2017, which aims to fill the gaps present in the Framework Decision 2002/475/JHA on the fight against terrorism in light of what emerged in Resolution 2178 (2014) of the United Nations Security Council and the Additional Protocol to the 2006 Framework Decision /960/JHA Council of Europe Convention for the Prevention of Terrorism, signed in Riga on 22 May 2015, through the introduction of four new prosecution obligations and related procedural requirements. All the tools and institutions mentioned contribute to the evolution of the collaborative policy of the European Union which is traveling, ever more quickly, the road to arriving at a real common space of justice in which the States, faced with the most significant need of fight the fight against crime give up, in small steps, a portion of their sovereignty, however give space to a solidarity that is expressed with the creation of a single model of justice and a broader "territory" in which this justice is pursued together.