2 February 2023 – The Italian Council of Ministers, on the proposal of the Minister for European Affairs, the South, Cohesion Policies and the PNRR Raffaele Fitto and the Minister of Justice Carlo Nordio, approved, in preliminary examination, a legislative Decree which introduces supplementary and corrective provisions of the legislative Decree 2 February 2021, n. 9, laying down provisions for the adaptation of national legislation to the provisions of Council Regulation (EU) 2017/1939 of 12 October 2017 on the implementation of enhanced cooperation on the establishment of the European Public Prosecutor’s Office. The legislative Decree will be published in Gazzetta Ufficiale (Official Journal) in an expeditious manner.
This draft legislative Decree is prepared pursuant to article 31, paragraph 5, of the Law of 24 December 2012, n. 234, containing general rules on the participation of Italy in the formation and implementation of the legislation and policies of the European Union.
In this regard, it should also be recalled that clause r) of the original delegation rule (Article 4, Law of 4 October 2019, No. 117 – European Delegation Law 2018) legitimised the Government to “make any appropriate changes to the procedural rules and legal provisions in order to fully implement the provisions of regulation (EU) 2017/1939, with particular regard to the provisions that are not directly applicable, and to coordinate the internal regulations in force with what is provided for therein, also providing for the repeal of the provisions incompatible with those contained in the aforementioned regulation (EU) 2017/1939”.
Given the above, it should be noted that the draft legislative decree consists of only two articles, the corrective action being motivated by the need to deal with a very limited problem.
And indeed, in order to ensure that the EPPO’s investigative action can be carried out in conditions of absolute autonomy and independence and, on the other hand, to prevent the public prosecutors from continuing to answer for the custody (also) of investigative material -and, in particular, of documentation relating to the interception activity – pertaining to the European Public Prosecutor’s Office, it is necessary to provide for the creation of a “confidential archive” separate from that provided for by articles 269, paragraph 1, of the Code of Criminal Procedure and by Article 89 -bis, paragraph 1, of the implementation, coordination and transitional provisions of the criminal procedure code.
In Article 1 it was therefore envisaged to introduce a new Article 17-bis to the legislative Decree n. 9 of 2021, concerning the conservation of documentation relating to interceptions ordered in proceedings within the competence of the European Public Prosecutor’s Office, establishing:
- that the minutes and recordings of interceptions carried out in proceedings in which the European Public Prosecutor’s Office has exercised its competence, as well as any other deed relating to them, are kept in a special archive kept “under the exclusive direction and supervision of the European Public Prosecutor or, in the cases envisaged by Article 16, paragraph 7, of the regulation, by the European Delegated Prosecutor appointed as deputy of the European Public Prosecutor by the College of the European Public Prosecutor” (in this archive, of course, both the materials relating to interceptions ordered by the EPPO, and those concerning interceptions arranged in investigation files managed by national prosecutors and, subsequently, for the most varied reasons, transferred to the EPPO).
- that, within six months from the date of entry into force of this provision, having consulted the European Chief Prosecutor, the Minister of Justice shall establish, with his own decree, the new archive referred to in paragraph 1 at the Public Prosecutor’s Office of Rome;
- that, where necessary, further archives on a territorial basis can be established – also with subsequent decrees – at the prosecutor’s offices indicated in article 10 of legislative decree n. 9 of 2021.
Article 2 of the decree contains the financial invariance clause.
The objective of this legislative decree, which is made up of two articles, is to make the investigative action of the European Public Prosecutor’s Office (EPPO) completely autonomous and independent while avoiding that the public prosecutors continue to answer for the custody (also) of investigative material – in particular, of documentation relating to the interception activity – pertaining to the European Public Prosecutor’s Office, providing for the creation of a “confidential archive” separate from that provided for by articles 269, paragraph 1, of the Criminal Procedure Code and by article 89- bis, paragraph 1, of the implementation, coordination and transitional provisions of the Criminal Procedure Code.
The establishment of the archive, which will be kept at the Public Prosecutor’s Office of Rome, will be governed by a decree specifically adopted by the Minister of Justice, having consulted the European Chief Prosecutor, within six months from the date of entry into force of this provision. Furthermore, it is envisaged that the Minister of Justice, if the need arises, can establish with the same decree or other decrees, other archives on a territorial basis in the offices indicated in article 10 of legislative decree n. 9 of 2021.
It should therefore be noted that the management of the specific archive at the Public Prosecutor’s Office of Rome and of the additional territorial archives envisaged in paragraphs 1 and 2 of the introduction of article 17-bis, is part of the technical and organisational rationalisation activities connected to the process of digitisation of the justice sector, thus not generating new or greater charges for the State budget.
Author: Antonio Leo Tarasco
Co chair National Institutions Subcommittee