The European arrest warrant ("EAW") is a simplified cross-border judicial surrender procedure which applies in the European Union for the purpose of prosecution or executing a custodial sentence or detention order; it the flagship instrument of mutual recognition in European criminal law.
The aim of the EAW is to ensure that open borders and free movement in the European Union are not exploited by those seeking to evade justice: it is considered the most successful instrument of judicial cooperation in criminal matters in the Union, even if there are many concerns about its not proportionate use (see Fair Trials 2021 report) and the protection of fundamental rights of the requested person.
In Italy, European arrest warrant cases are handled by one of the 26 appeal Courts, "Corte di Appello", acting as first instance courts. If you are interested in retaining a defense attorney for an EAW case, don't forget to check specific competence of the defense lawyer, because specialization European criminal cooperation is not requested under Italian law.
Read more about how to choose an extradition lawyer.
Please note that outside the European Union the European Arrest Warrant does not apply, since surrender to a third State is regulated by international extradition rules; an EU citizen arrested in a member state which is not his state of nationality has the right to benefit form the so called "Petruhin" doctrine (see Nicola Canestrini's comment on CJUE's last BY decision BY, Italian).
Italian implementation of the EU arrest warrant
The Framework Decision on EAW has been in force since 1 January 2004 in all Member States; Italy implemented it in 2005 with law n. 69; on February 2, 2021, Italy issued Legislative Decree No. 10 amending law n. 69 of 2005.
Under the amended Italian legislation, on top of specific conditions set out by the EU Framework decision, the implementation of EU provisions for EU arrest warrants must comply with the fundamental principles of Italy’s Constitution concerning essential rights, as well as the rights to freedom and due process of law.
Under the existing law, "the execution of the European arrest warrant may not, in under no circumstances lead to a violation of the supreme principles of the Constitutional order of the State or of the inalienable rights of the person recognised by the Constitution, of the fundamental rights and fundamental legal principles enshrined by Article 6 of the Treaty on European Union or of the fundamental rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms and its protocols".
The Italian law allows one of the most controversially discussed but unresolved issues in extradition law, which is the question of whether – and, if so, to what extent – an extradition request can be denied by the authorities of the requested State if certain fundamental rights standards are not upheld in the requesting State. In legal doctrine, this issue is dealt with under the catchphrases “human rights exception/clause” or “public policy/order reservation” or “ordre public.” (see Thomas Wahl's article about Refusal of European Arrest Warrants Due to Fair Trial Infringements on EUCRIM''s website).
How to choose an Extradition lawyer in Italy
Execution Procedure of an EUROPEAN ARREST WARRANT in ITALY
Usually, Italian police arrests the requested person due to an alert in the Schengen Information System (SIS), giving proper notice to to relatives, consulate and (usually court appointed) defense attorney.
Fair trial rights, such as access to the case file and proper translation / interpretation are granted both by EU and Italian law (see Fair trials International toolkit about EAW defence).
Family members can appoint a defense attorney for the arrested relative as well.
Self defense is not allowed and in case no defense attorney has been appointed from family or defendant the court will appoint a court appointed lawyer; visiting rights for relatives may take some time. Legal aid is granted on a means test (only of income is lower than 11.500 euros / year approx).
Within 96 hours from the arrest the President of the competent first instance court, which is the Court of Appeal, or a delegated magistrate shall proceed to schedule a hearing in order to interrogate the arrested person and asking for consent to surrender; in this hearing, release from pretrial detention can be requested, including home detention (which requires a domicile in Italy; Italy does not have a bail system).
Usually, a second hearing follows in order to decide about the surrender; other hearings may be scheduled in order to obtain supplementary information on the points (hopefully) raised by the defense.
Mandatory Refusal of Execution of an EU Arrest Warrant
The Italian judicial authority must refuse the execution of an EU arrest warrant if
- the crime identified in the warrant is extinguished by amnesty per Italian legislation, provided that the Italian state has jurisdiction
- based on the same facts as are in the warrant, an irrevocable criminal decision or order or otherwise final decision has been issued in Italy, or a final sentence has been issued in another EU member state, provided that, in the event of a conviction, the sentence has already been executed or is in the process of being executed, or can no longer be executed under the laws of the state that issued it, or
- the person subject to the warrant was younger than 14 years of age at the time of the crime.
Discretionary Refusal of Execution of an EU Arrest Warrant
The Italian judicial authority may refuse the execution of an EU arrest warrant
- if the warrant concerns crimes that, under Italian law, are considered to have been wholly or partially committed in Italian territory, or concerns crimes committed outside the national territory of the requesting state when Italian legislation does not allow prosecution for the same crimes committed outside Italian territory or
when there is a pending criminal procedure in Italy for the same facts as are included in the warrant.
The court may refuse execution when the warrant affects an Italian citizen or a foreign EU citizen who has been a lawful resident of Italy for at least five years, and it can order that Italian criminal procedure be used instead.
Convicted in absentia?
Italy has a (shameful) tradition fo so called "in absentia convictions", in which trials and judgments are conducted without effective knowledge by the defendant.
Such convictions do not respect European Convention of Human Rights prescriptions regarding a "fair trial" and can be fought in EAW proceedings as well (here the 2015 decision of the German federal Constitutional Court declaring that Italian in absentia conviction do infringe human dignity).
Please note that even under Italian law such trials and convictions can be annulled and a re-trial ordered under specific conditions (one of which is a 30 days term from knowledge of the conviction; see Italian Supreme Court 2021 ruling).
In any case, the execution of an EU arrest warrant for a person who has not appeared personally in the criminal procedure ("in absentia conviction") must contain an indication of at least one of the following conditions:
- the person has been timely summoned by personal service or another method that guarantees unequivocally that the person knew about the date and place of the procedure in which the arrest warrant was issued, and the order could have been issued even in the person’s absence
- the person has been represented by a defense attorney in the proceedings
- the person, after being informed of the right to begin a new procedure or to file an appeal, has expressly waived such right , or
- the person has not personally received the warrant, but will receive it personally after having been extradited to the requesting state and will be informed of his or her rights.
See Nicola Canestrini's analysis "Italian in absentia trial violates the right to a fair trial".
Italian "fundamental rights defense" in European Arrest warrants proceedings
Following the so called Aranyosi and Caldararu case law, a 2016 judgment where the EU Court of Justice stated that an EAW has to respect fundamental rights of the person, in the EAW proceedings the so called "fundamental rights defense" is possibile.
In any case, refraining from executing the EAW requires two steps: determining the risk of breach of fundamental rights in general and the exposition of the individual in the specific case to that risk.
Inhuman detention conditions and lack of fair trial rights (independence of the judiciary) are recognised refusal grounds; Nicola Canestrini litigated right to health as new refusal ground, including the Italian Constitutional Court and before the EU Court of Luxembourg.
Criteria for the Execution of an EU Arrest Warrant in Italy
Italian judicial authorities must ensure that the following additional criteria are complied with before authorizing the execution of an EU arrest warrant in Italian territory:
- if the crime that is the subject of the warrant carries a life sentence, the requesting state must provide a mechanism allowing for the review of the penalty within 20 years of its imposition and
- if the warrant was issued against an Italian citizen or a foreign EU citizen who has been a lawful resident of Italy for at least five years, after being subject to the respective procedure, that person must be returned to Italy to serve the sentence given in the requesting state.
Within 5 days form the first instance decision about surrender, the defense counsel or the prosecution may appeal the appellate court’s authorization of the execution of an EU arrest warrant to Italy’s Supreme Court ("Corte di Cassazione"). Appeal stops surrender and Italy's Supreme Court decision may take a couple of months; Supreme Court can annull, confirm or send the case back to the lower court.
How to choose an Extradition lawyer in Italy
A person extradited to a foreign state in compliance with an EU arrest warrant may not be extradited to another EU state or to a third state for a crime that occurred before the extradition of the person, provided that the consent of the requesting state is also obtained.
Here a Fair trials guide about How to defend in an EAW proceeding.