ITALIA – Paradisul pierdut (și regăsit) al condamnaților definitiv
Italy: Paradise Lost and Found for Convicted Offenders

Summary/Abstract: If long time ago fleeing on the territory of other States of convicted offenders who wanted to avoid the enforcement of sentences was an optimal solution, the development of legal instruments for international judicial cooperation and especially the simplification and harmonization of surrender procedures between the member States of the European Union led to the result that the spaces where convicted persons could consider themselves sheltered became more and more restricted. This led to the need for the convicted offenders to identify, mainly with the help of lawyers, gaps or imperfections in the legislation of other states, which would allow either the refusal of extradition to the issuing State, or the enforcement of sentences in alternative ways to the one in deprivation of liberty regime. In the article, two well-known cases are analyzed, in which the convicted persons managed to avoid the enforcement of the sentences, fleeing Romania and arriving in Italy, a country where the harmonization of the national legislation with the provisions of the Decision - framework 2008/909/JAI and with the principles deriving from the jurisprudence of the Court of Justice of the European Union was realized late and overlapped with a great flexibility of the judicial authorities in the interpretation of the European law. A first problem analyzed refers to the possibility of the judicial authorities of the executing State to proceed, following the recognition of the sentence, to a re-individualization of the way of enforcement of punishment, replacing it practically with one that does not involve deprivation of liberty, aspect which is considered to be contrary to the purpose of the principle of trust and mutual recognition, which is the basis of international judicial cooperation. A second issue concerns the fact that the judicial authorities of the executing State are using the prerogatives of interpreting and applying the domestic law of the issuing State, a matter that goes against the principle of territoriality of the application of criminal law. Finally, the last issue analyzed refers to the impossibility of the coexistence of a warrant for the enforcement of a custodial sentence, issued by the issuing state and on the basis of which a European arrest warrant was also issued, with another warrant for enforcement, issued by the judicial authorities of the State that proceeded to the recognition of the judgment of conviction and which was thus integrated into the internal legal order of the latter State.

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