Verification of proportionality is, in principle, the exclusive responsibility of the State issuing the EAW, not the executing State: the principle of proportionality, although codified in the legislation on the EIO (Legislative Decree 108/2017), does not modify the conditions of legitimacy of the EAW, nor does it give the executing State the power to question the reasons justifying its issue, except in very limited and well-defined cases (e.g. warrants for exclusively investigative purposes without criminal prosecution.
Once a comprehensive assurance has been received regarding prison conditions from the authorities of the issuing State, the critics on the content of the response provided to the requests of the first instance extradition court effectively results in a censure of the motivation of the sentence that orders the surrender, a censure that, as such, is no longer permitted under the Italian implementation law of DQ 584/2002.
(unoffical machine translation)
SUPREME COURT OF APPEAL
VI CRIMINAL SECTION
Judgement no. 42987/24
Hearing date 21/11/24 – filed 26 November 2025
on the appeal brought by TS, no. **/1962 against judgement no. 57/24 of the Venice Court of Appeal dated 27/09/2024
having read the documents, the appeal and the contested judgement; having heard the report of Justice Orlando Villoni;
having heard the public prosecutor in the person of the Deputy Attorney General Roberto Aniello, who concluded for the annulment with referral in relation to the purposes of the European arrest warrant
CONSIDERING THE FACTS
1. With the contested sentence, the Court of Appeal of Venice declared that the conditions for granting the surrender of ST to the judicial authorities of the Kingdom of Belgium, which had requested it under a European arrest warrant issued on 18 July 2024 for procedural reasons, were met, an internal warrant having been issued against him on 19 June 2024 by the investigating judge at the Court of First Instance in Antwerp in relation to proceedings brought in connection with multiple offences (participation in a criminal organisation, human trafficking, laundering of the proceeds of theft, facilitation of illegal entry and residence, fraud, falsification of administrative documents and trafficking in false documents) committed in Belgium and elsewhere between December 2020 and September 2022.
2. The person concerned lodged an appeal against the sentence with the Court of Cassation, which, through his defence counsel, formulated three grounds for appeal.2.1. Violation of criminal law in relation to articles 6 and 18-ter of law no. 69 of 2005 for the Court of Appeal having considered the European arrest warrant complete with all the elements required by law, despite the failure to indicate the reasons for the issuance of the Belgian domestic coercive measure.2.2. Violation of criminal law in relation to articles 5 TEU and 6, 7, 52 of the CDFEU in relation to articles 5 and 8 Conv. ECHR regarding the lack of proportionality in the issuing of the warrant and the lack of indication of the reasons for which the surrender is requested.2.3. Violation of criminal law in relation to art. 2 law no. 69 of 2005 for
the Court of Appeal having deemed non-existent the risk of inhuman and degrading treatment resulting from the restriction of the interested party, once the delivery to a Belgian penitentiary institution has been ordered.
CONSIDERED IN LAW
1. The appeal is unfounded and must be rejected.
2. With reference to the first ground for appeal, it should be noted that the Court of Appeal has adequately argued that, quite clearly, under Article 6, paragraph 1, letter e), of the aforementioned law, recourse to the procedure of surrender by arrest warrant is also provided for on procedural grounds and with reference to any coercive measure issued by the judicial authority of the issuing State, whatever the reasons may be, provided that they are inherent to it, for this purpose quoting almost in full the sentence of this Sixth Criminal Section no. 14887 of 09/04/2024, re. Magazzini, not mass., but in turn containing extensive references to the copious jurisprudence of this Court of Cassation on the subject, which for this reason seems superfluous to recall.
Moreover, the defence complaint essentially focuses on the fact that the Belgian authority did not sufficiently explain the reason for the request for delivery and the aforementioned case law precedent, to which the same defence counsel shows he agrees, explains how the explanation of those reasons (for example: submission to questioning, confrontation, fulfilment of cautionary requirements) is required either by framework decision 2002/584/JHA of 13 June 2002 or by the national implementing law.
Nor does the inclusion in the catalogue of instruments of judicial cooperation between the Member States of the European Union of the European Investigation Order (EIO) - even though it deals with the issue of the proportional use of the European arrest warrant in theory and in some limited cases in practice, allowing for the use of non-coercive methods of cooperation of personal freedom in the same way as Directive 2014/41/EU - has not changed the conditions of legitimacy for issuing a European arrest warrant.
In general, it is not up to the executing State to verify whether or not the presence of the requested person is necessary at the trial being held against him/her before the judicial authority of the issuing State, because, if this were the case, the principle of mutual recognition of judicial decisions would be undermined.
Rather, there remains a limited scope of assessment when the European arrest warrant is issued expressly for exclusively investigative purposes, unrelated to the exercise of criminal proceedings (Section 6, No. 7861 of 21/02/2023, Arciszewski, Rv. 284251), a circumstance that, however, does not occur when - as in the case in question - it has been issued on the basis of an internal coercive order adopted by the judicial authority in relation to the formulation of precise accusations, albeit of a provisional nature, typical of the preliminary investigation phase.
The principle of proportionality is, moreover, codified by art. 7 of Legislative Decree no. 108 of 21 June 2017 implementing in the national legal system Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 on the European Investigation Order and, although its coordinated application with the other European judicial cooperation instruments may have so-called ‘systemic’ repercussions, such as the one mentioned above, it has not changed the reasons or purposes of the European arrest warrant regulation. ‘system’, such as the one mentioned above, it has not changed the reasons or the aims of the regulation on the European arrest warrant.
Finally, the further clarifications that the defendant deems necessary are those provided for in paragraph 1-bis of the same art. 6, which concerns the different case of the European warrant issued for executive purposes.
Therefore, as no violation of the law has been found, the appeal must be rejected.
3. The same can be said of the second ground for appeal.
With this complaint, the appellant's defence urges this Court of Cassation to examine the reasons why the requesting judicial authority issued the European arrest warrant and, even before that, those that justified the issuance of the arrest warrant in the context of the proceedings underway in Belgium against T.
However, these are questions that are simply inadmissible before the judge of the State executing the European arrest warrant and which will have to be raised in the appropriate procedural forum, i.e. before the Belgian judge in charge of the case, who is the only one able to provide answers to these questions.
4. The third ground of appeal, on the other hand, is intrinsically inadmissible.
As can be inferred from the contested sentence, the Court of Appeal of Venice asked the Belgian authorities for supplementary information, as per art. 16 of the aforementioned law, regarding the danger of inhuman and/or degrading treatment to which the subject requested for delivery could be subjected due to his placement in the penitentiary structures of that country.
The Belgian authorities replied promptly, so much so that the sentence includes a large section dedicated to the conditions of the Nieuw Dendermonde penitentiary, where the claimant will be held.
That said, with the formulation of the aforementioned complaint, the appellant's defence actually intends to question the merits of this choice, albeit by referring to those decisions of legitimacy or of the Court of Justice of the European Union which in the not too distant past had effectively highlighted some critical issues of the Belgian penitentiary structures.
However, once a comprehensive assurance had been received in this regard from the authorities of the issuing State, the request from a trade union regarding the content of the response provided to the requests of the Court of Appeal resulted in a censure of the motivation of the sentence that ordered the extradition, a censure that, as such, is no longer permitted in accordance with art. 22, paragraph 1, I. cit., as amended by Legislative Decree no. 10 of 2 February 2021.
5. The rejection of the appeal is followed by the appellant's conviction to pay the legal costs.
P. Q. M.
The appeal is rejected and the appellant is ordered to pay the legal costs. Sent to the Registry for the fulfilments referred to in art. 22, paragraph 5, law no. 69 of 2005.
So decided, 21 November 2024 / filed nOv 26th