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Does EAW respect right to health? Italian Constitutional Court will rule (Court Appeal Milan, Jan 2021)

13 January 2021

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health nurse rescue hospital
I diritti delle immagini appartengono ai rispettivi proprietari (che saremo lieti di indicare in caso di richiesta).

An Italian Court questions the constitutionality of Italian national EAW transposition law, since nor the Framework Decision neither the implementation Law 69/2005 set out a specific ground for refusal based on the lack of compliance with fundamental rights, in particular with regard to an infringement of the fundamental right to human health and right to be given appropriate therapies, particularly in the area of mental diseases.

English unofficial automatic translation, official Italian text here https://www.gazzettaufficiale.it/eli/id/2021/01/13/20C00313/s1

Related articles:

 EN

Paola De Franceschi, European Arrest Warrant: A new referral to the Italian Constitutional Court, Agenfor International, 2021.

ITA
Nicola Canestrini, IL DIRITTO ALLA SALUTE QUALE DIRITTO FONDAMENTALE PUÒ IMPEDIRE LA CONSEGNA DI UN RICERCATO NEL PROCEDIMENTO PER MANDATO DI ARRESTO EUROPEO?, Diritto di difesa, settembre 2020

Nicola Canestrini, Questione di legittimità costituzione della legge di recepimento del MAE in relazione alla tutela della salute del consegnando: una vittoria per la human rights defense (anche) nella cooperazione penale europea, Giurisprudenza penale, settembre 2020.

 No. 194 ORDER (Promotional Act) September 17, 2020
Order of 17 September 2020 of the Court of Appeal of Milan in the criminal proceedings against D. L. E.. Criminal execution - European Arrest Warrant - Grounds for refusal to surrender - Failure to provide, as a ground for refusal, chronic health reasons of interminable duration entailing the risk of consequences of exceptional gravity for the requested person. - Law no. 69 of 22 April 2005 (Provisions to bring domestic law into line with Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States), articles 18 and 18-bis. (20C00313) (OJ 1st Special Series - Constitutional Court n.2 of 13-1-2021)

COURT OF APPEAL OF MILAN
V Criminal Section

 

pronounced, at the outcome of the hearing of September 17, 2020,
concerning the request for delivery of D. L. E. , born in **, res.  ** ,
free, defended in confidence by attorney Nicola Canestrini (and by attorney Nathalie d'Apuzzo, ed.), against whom the European arrest warrant was issued by the Municipal Court of on September 9, 2019 the following order.

The Court of Appeal of Milan submits to the opinion of this Court a
question of the constitutional legitimacy of articles 18 and 18-bis of law 69/2005 insofar as they do not provide for the following
as a reason for refusing to surrender the existence of chronic health reasons and indefinite chronic health and indefinable duration that involve the risk of consequences of exceptional gravity for the person requested, for contrast with Articles 2, 3, 32, 110 of the (Italian, ed) Constitution.

The question is relevant: the present judgment can not 'be
defined independently of the resolution of the question of
legitimacy 'constitutional raised: the univocity' textual of the rules contained in law 69/2005 norms contained in Law 69/2005 require the adoption of a the adoption of a favorable pronouncement to the delivery of the requested to the, with consequent, if any, indefinite suspension of delivery: the decision in favour of delivery implies the concrete risk of serious harm to the risk of serious damage to the subject's psychological health.

Facts

The Municipal Court of *** issued on 9 September 2019 a
European arrest warrant against D. L. E. for the crime of
possession for the purpose of distribution and transfer of narcotic substances committed in ** on ** (Croatia, ed).

The Attorney General's Office requested on 11 October 2019.
the application of the precautionary measure of house arrest.

Preliminary investigations activated by the President of the Chamber of of this court allowed to ascertain that the subject requested in cohabited with his parents and was a carrier of "psychiatric pathologies" not better specified (Cfr. note Carabinieri  of 15 October 2019).

D. L.., to whom no measure was applied, was heard during the identification hearing on November 12, 2019 and on that occasion he did not consent to the surrender (and did not waive the principle of specialty).

The defense of the requested person produced in the record medical documentation certifying that the same is affected by psychiatric pathologies.

In particular, after having reported a suicide attempt in 2013 in Germany, the defense has produced the following documentation:

  • October 10, 2013 - hospital emergency room report : D.
    L. "presents for state of anguish of delusional type and suicidal ideation
    suicidal ideation"; he is discharged and sent to the attending physician with the
    diagnosis of acute schizophrenic episode, unspecified;
    unspecified anxiety state";
  • October 2, 2014 - hospital emergency room report bearing
    diagnosis of "unspecified psychosis; abuse of amphetamine or
    sympathomimetics of similar action";
  • from October 5 to 14, 2014 - hospitalization at the Hospital in
    compulsory (TSO) and restraint; D. L. is discharged
    with the diagnosis of "Axis I Psychotic Episode. Cannabis abuse
    continuous, mixed abuse";
  • psychiatric report of the psychiatrist of the , Facility " ", dated August 25, 2017, from which it appears that D. L. was been transferred there "on the orders of the judicial authority (1) directly from the SPDC where he had been hospitalized since 15 October 2016, for a diagnosis of "paranoid psychosis induced by the continuous and prolonged use of various prolonged use of various substances in particular cannabis and methamphetamine (MDMA)." Recently ...the diagnosis was changed to Syndrome schizoaffective syndrome...";
  • letter of discharge dated December 7, 2017 from the which confirms the above diagnosis;
  • psychiatric report dated May 7, 2019 from the confirming
    the diagnosis of "schizoaffective disorder";
  • medical certificate hospital of which certifies "state of chronic decompensation
    chronic decompensation characterized by disorders of ideation of a delusional
    delusional character, episodic dispersive phenomena, serious abnormalities of behavior";
  • certification of September 18, 2019 of the Medical Commission
    of INPS of disability with permanent reduction of the capacity 'to work
    working capacity of 75% for "schizoaffective syndrome with previous
    substance dependence - paranoid psychosis induced by the use of
    narcotics."
  • report on November 6, 2019 of the psychiatrist Dr.. dell' that after having retraced the history of the illness of D. L. pointed out how the activation of this procedure had "considerably distressed and decompensated the patient" so much so as to induce to evaluate a possible hospitalization in the psychiatric department to "contain the worries "contain the worries"; the doctor continues highlighting that
    "the young man needs ... the continuation of therapy
    pharmacological therapy, the psychological support of which he benefits by attending every 15 days the proximity to the family that after so many
    contrasts and' returned to acquire for him positive value and
    support", concluding that "in the event that Mr. D. L. was delivered
    to the Croatian State for the completion of the process and punishment ... the
    young man would risk in addition to the nullification of the positive path in which in which he has committed himself, the loss of psychological balance and the serious return to the previous negative situation with a serious risk for the
    the person";
  • report dated March 2, 2020 by the same Dr.. which
    attests that in the case of interruption of the therapeutic path, D.
    L. could experience a "psychotic break down".

In the light of the documentation indicated, this court, in order to
have a complete and current picture on the health status of the
delivery, ordered psychiatric expertise on the person of D. S.
appointing Dr. MCV as expert witness, who, at the outcome of
of her analysis, concluded in the sense that "The capacity of E.
capacity to understand and want to understand of E. D. L. bearer of psychiatric pathology, was at the time of the facts absent due to acute decompensation; in the actuality' he and' person that conserve sufficient capacities' to participate in the judgment.

The subject is in need of treatment, the interruption of which would represent a possible harm to his health and
for the four-year course undertaken".

The expert in his report, after having analyzed the documentary
documentary results and commented on the results of interviews with the expert the expert witness, has decided to depart from the last diagnosis made by the health professionals who had treated the young man (diagnosis of Schizoaffective Disorder) orienting instead for a diagnosis of Psychotic Disorder Not Otherwise Specified" (2) , evolved "on a a vulnerable ground, of which in the moments of relative compensation as the present one the aspects are recognized, and on which it appears reasonable that a cure not (only) pharmacological, but rather psychotherapeutic must be foreseen".

The expert also evidenced a strong suicidal risk, underlining in particular how the mechanism of denial led D. L. to face the problems related to the pendency of this procedure with "resignation in the face of the awareness that being confined in a prison means for him death or suicide and false feeling of acceptance. It seems very probable that in front of the realization of this eventuality, understood as a temporal aspect, the patient would have no other possibility but to pass to the act, in this way becoming suicide not possible but probable" (3) .


Dr. V, at the outcome of her analysis, considered D. L. to be the most likely suicide. L. capable of standing trial; however, she added that "he is an individual who needs pharmacological an individual who needs pharmacological and psychotherapeutic therapy being a carrier of psychiatric pathology of Axis I; in the absence of
drug therapy or in case of drug therapy in inadequate dosage or inadequate therapy inadequate dosage or inadequate therapy, the possibility that the applicant to meet a new episode of psychic decompensation appears significant.

It should also be remembered that not only from the psychological point of view but also from the neurocognitive and neurological point of view the succession of episodes of decompensation and specifically the organic alterations that correspond to represent traumatic events for the brain organ, understood in an anatomical sense, as they can lead to a general worsening of the subject's condition; the same require moreover the increase, even if temporary, of the pharmacological therapy, with the obvious increase in the potential for side effects.

That said, it is clear that E. D. L. is not a person, that in our
our system, could be restricted in a common prison,
prevailing in him not only the incapacity 'at the time of the facts but
but also the need for care. He is not 'individual suitable for life
prison life, needing to be able to maintain the path started and
that we can 'say it is today started but certainly far
from being concluded.

As for the possibility 'of recovery, the expert has
clarified that "the possibility 'to express itself in relation to the
prognosis in general and/or to a possible "recovery" and' in
psychiatrist a complex concept, where not necessarily the
healing corresponds to what is understood for other specialties
(restitutio ad integrum) but corresponds to the achievement of an acceptable acceptable balance and a good quality 'of life in the face of the possible need 'to take drug therapy for the most part of life, and especially when it comes to pathology psychiatric pathology of grade I serious and important as that of the person".

In law

D. L. E. was requested to be surrendered by virtue of m.a.e.
trial issued on September 9, 2019 for the crime of possession for the purpose of distribution and transfer of drugs committed in the **.

The court observes that the formal and substantive conditions exist
substantial for the issuance of a measure favorable to the
delivery.

Since D. L. is an Italian citizen, and it is a procedural m.a.e.
procedural, the mechanism of conditional execution provided by art. 19 mechanism of conditional execution referred to in art. 19, letter c) law 69/2005 ("the delivery is subordinate to the condition that the person, after being be sent back to the executing Member State to serve the sentence or measure serve the sentence or security measure depriving him of personal freedom
which may have been pronounced against him in the issuing

The Supreme Court of Cassation has clarified that the expression "after being heard", contained in art. 19, letter c) of Law no. 69 of April 22, 2005, is to be understood in the sense that
the person surrendered must be returned once the
process against him with the issuing of an enforceable sentence,
according to the specific discipline provided by the law of the issuing State" (cf. of issue" (cf. Court of Cassation, section 6, sentence no. 938 of 7 January 2010 Cc. 2010 Cc. (dep. January 12, 2010) Rv. 245803-01).

The transfer in of D. L., in execution of the m.a.e., in addition to
interrupting the possibility of treatment, with consequent aggravation of the general state of the interested party, constitutes a concrete risk for the health of the subject that could have effects of
exceptional gravity ', given the ascertained suicide risk highlighted by the expert appointed by the court.

The question of constitutional legitimacy is not manifestly unfounded for a number of considerations.

Reconstruction of the legal framework

The Framework Decision on the EAW 2002/584/JHA of the Council of 13 June 2002 implements the principle of the integration of a common judicial area and is based on the principle of mutual recognition: Article 1(2) rules that Member States "shall execute every European arrest warrant" on the basis of that principle.

Mutual recognition is in turn based on the high level of trust achieved between the member states.

Recital 10 of the Framework Decision refers to fundamental rights and specifies that the mechanism of the arrest warrant may be suspended in the event of serious and persistent persistent breach by Member States of the principles set out in Article 6 (1) of the Treaty on European Union.

Furthermore, the twelfth recital states that the Framework Decision respects the fundamental rights fundamental rights as laid down in Article 6 of the Treaty on European Union and the Charter.

The reference in that recital to Article 6 of the Treaty on European Union constitutes a reference to the rights guaranteed by the
rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and to those
the constitutional traditions common to the Member States.

Moreover, Article 1(3) of the Framework Decision states that the Framework Decision that it cannot modify the obligation to respect fundamental rights and fundamental fundamental rights and fundamental legal principles enshrined in Article 6(1) of the Treaty on European Union.

3. The framework decision then provides for mandatory grounds for refusal (art. 3) and optional grounds for refusal (art. 4); and 'finally, the possibility is provided for, in exceptional cases, to suspend the execution of the EEW for "humanitarian reasons". In particular art.
23, par. 4 of the framework decision provides: "The delivery may, on
exceptionally, may be temporarily deferred for serious humanitarian reasons, for example if there are substantial grounds for believing that it would manifestly endanger the life or health of the requested person. The European arrest warrant shall be executed as soon as these grounds have ceased to exist. The executing judicial authority
The executing judicial authority shall immediately inform the issuing judicial authority and agree on a new date. The executing judicial authority shall immediately inform the issuing judicial authority and agree on a new surrender date. In this case, the delivery shall take place within ten days of the new agreed date.".

The adaptation of the Italian legal system to the framework decision
decision establishing the European arrest warrant is due to law no. 69 of 22 April 2005, which in 2005, no. 69, which specifies in art. 1 that the implementation of the provisions of the aforementioned framework of the provisions of the above-mentioned framework decision takes place within the limits insofar as such provisions are not incompatible with the supreme principle of the constitutional order supreme principles of the constitutional system in terms of fundamental fundamental rights, as well as in terms of rights of liberty and fair trial.

In accordance with art. 2 cited law is specified that Italy will execute the European arrest warrant with respect for the rights and principles rights and principles established in the European Convention for the Protection of Human Rights and Fundamental Freedoms, in particular Articles 5 and 6 in particular in articles 5 and 6 and in the Italian Constitution with reference to the right to a fair trial, to personal liberty to the right of defense, to the criminal responsibility and to the quality of criminal sanctions, as well as the principle of equality.

The executing judicial authority has a general obligation to
to execute every European arrest warrant on the basis of the
principle of mutual recognition.

The procedure of surrender provides, however, that the execution
the execution of the surrender must necessarily take place with the person surrendered in vinculis: according to Article 12 of the Framework Decision, the executing executing judicial authority can decide whether to keep the requested person in custody or whether to release him or her, but only until the final decision on the
only until the final decision on the execution of the EAW; in the case
the final decision is in favor of the surrender, it will have to
In the event that the final decision is in favor of the surrender, a detention measure must be issued which can ensure the material surrender to the requesting country.

The general obligation to execute the EAW is limited by
limitation in the grounds for refusal, mandatory or optional, of the
The general obligation to execute the EAW is limited by the mandatory or optional grounds for refusal of the EAW, provided for by articles 18 and 18-bis of Law 69/2005: this is an exhaustive list.

This is an exhaustive list, since it is not possible for the
for the judicial authority of execution to base a decision of refusal on reasons reasons other than those expressly listed in the national legislation.

It should be noted that neither the framework law nor law 69/2005
include among the mandatory cases of refusal, not even optional, the non-compliance with fundamental rights, and in particular the violation of a fundamental right such as the right to health, with the necessary corollary of the right to adequate care for the "person", necessarily individualized, especially in the field, such as the one we are dealing with, of psychiatric diseases.

The possible existence of serious reasons that may endanger the health of the subject danger to the health of the subject requested in delivery and 'governed by by art. 23 of Law 69/2005 (which repeats in an almost textual way the corresponding rule in art. 23 of the framework law), which framework), which allows, if there are serious reasons to believe that that the surrender would endanger the life or health of the person, the the person, to the President of the Court to suspend the execution of the EAW by reasoned decree.

The violation of articles 2 and 32 of the Constitution


The right to health of the person, declined in the various meanings of the right to inviolability 'physical, and the right to have
adequate care, is fully within the scope of the rights guaranteed in every democratic order and, in particular, of those
in particular, of those recognized unanimously by the systems
of the countries of the European Union, all committed to the respect of the Convention on Human Rights of Rome of 1950. Article 32 of our our Constitutional Charter and art. 35 of the Nice Charter
recognize it as a fundamental right.

The right to the fruition of the best therapeutic treatments
to ensure mental health then certainly falls within the group of
inviolable rights of the individual under Art. 2 of the Constitution.
Constitution.


However, as seen, the national system does not provide for the
injury of the right to health as a reason for refusal, not even optional, to optional, to delivery under an EAW.

 In fact, pursuant to art. 23 of Law 69/2005, the relevance of health reasons concerns the executive phase executive phase; only in the terminal phase of the procedural iter, subsequent to the decision on delivery, it will be possible to assess the subsistence of serious reasons of danger for the health of the surrendered.

The Supreme Court of Cassation has recently clarified that "the
health conditions of the consignee are not, however, counted by Article 18 of Law No. 69 of 2005 among the causes of refusal of delivery (Sec. 6, No. 108 of December 30, 2013, Di Giuseppe, Rv. 258460; Sec. 6, No. 42041 of October 4, 2016). Article 23, paragraph 3 of the law provides, in fact, that in the presence of serious reasons that lead to believe that the delivery would endanger the life or health of the person, the president of the Court of Appeal or the magistrate delegated by him, may, by reasoned decree, suspend the execution of the delivery order, giving immediate notice to the Ministry of Justice. In the design of the legislature, therefore, the state of health and 'a personal condition subject to change, even sudden, over time and, therefore, not usefully represented in the procedural stages prior to the execution of the measure of delivery because, in this last segment of the procedure, health conditions previously not hostile could worsen and become such or vice versa (Sec. 6, n. 108 of December 30, 2013). The health conditions, therefore, do not preclude the acceptance of the request for surrender, but may, according to assessments made rebus sic stantibus and deliberating an adequate documentary support, determine the suspension of the execution of delivery. See Cassation Sec. 6, sentence no. 7489 of February 15, 2017.

The court wondered whether the protection of health, in the specific
case in question, may fall within the scope of operativeness' of the
reason for refusal referred to in art. 18, letter h) and i) of the law
69/2005 - moreover, the subject of precise grounds for complaint put forward by the by the defense.

The examination allowed to exclude the possibility of refusing the
delivery of D.L. pursuant to the above-mentioned regulations.

In the case in question, apart from the possible "inhuman or degrading" conditions to which D. L. could be subjected -
conditions, however, that would require a specific investigation -
the protection of the psychological health of the surrendered would be harmed or seriously endangered by the very activation of the procedure of delivery the peculiarity of D. L.'s illness - psychiatric illness -, the psychiatric illness -, the interruption of the therapeutic relationship with the doctor doctor who is treating him, the uprooting, even if only temporary, from the family
family (in this moment moreover "place of care"), are all
elements that, as attested by the expertise carried out on behalf of
this court would make very concrete the suicidal danger.

Neither can' help the reason of refusal sub letter i) that
concerns the inability 'of the subject requested for reasons of age'.

Excluded therefore the chance to refer the present case in the paradigm of the refusal grounds ex 18 letter h) and i), it is necessary to verify whether the protection of the right to health - as seen absolute fundamental principle - receives adequate protection from the mechanism of the suspension of delivery provided by art. 23, paragraph 3 of law 69/2005.

The system outlined seems to this court unreasonable in many ways: the possible multiple profiles: the possibility 'of a suspension of the delivery subsequent to the pronouncement in favor of the delivery itself, subtracts from the jurisdictional phase the assessment about the analysis of a possible injury to the fundamental right of health as a reason that allows to refuse the delivery; refers to the executive phase executive phase (if any) to verify - by means of a non-appealable act (4) -, of the existence of serious health reasons allowing the suspension of the procedure; suspension of the procedure which however, would have, in the case at hand, an indeterminable duration.

But, the suspension and 'assimilable to a parenthesis, which once
once opened, must also close (5) .

And yet the protection of the fundamental rights of the individual permeates the entire structure of Law 69/2005 and, even before, of the framework decision on the EAW (6) .

And, in fact, the protection of the right to health is underlying the
grounds for compulsory refusal provided for by art. 18, letter h) (if
there is a serious danger that the wanted person will be subjected
the death penalty, torture or other inhuman or degrading treatment or punishment) and inhuman or degrading treatment or punishment) and art. 18, letter s) of the law 69/2005
concerning the case that the person requested to be surrendered is a
pregnant woman or mother of children less than three years of age with her cohabiting.

It is also necessary to consider how to pay more attention to the fundamental rights of the individual can be seen in the
Directive 2014/41/EU on the European order of criminal investigation (o.e.i.), which provides (art. 11, § 1, letter f)) that the authority of executing authority may refuse to recognize or execute an o.e.i. if "there are serious grounds for believing that the execution
the execution of the investigative measure requested" is "incompatible with the obligations obligations of the executing State" under Article 6 of the Treaty on European Union and the Charter.
Furthermore, it should be recalled that art. 696-ter
of the Code of Criminal Procedure (7) , which specifies that "The judicial authority judicial authority provides for the recognition and execution if there are no there are well-founded reasons to believe that the defendant or the convicted will be subjected to acts that constitute a serious violation of the fundamental principles of the legal system of the State, of the fundamental rights of the person recognized by art. 6 of the Treaty on European Union or of the rights, liberties and principles enshrined in the Charter of Fundamental Rights of the European Union".


In the present case the requested subject is
suffering from a psychiatric pathology; the expert appointed by the court has used, quote to the expert, the
category of vulnerability: well, the very concept of "vulnerability" is an acquired concept at European level.

Not by chance the Resolution of the Council of the European Union of 30 November 2009 "on a roadmap for strengthening the procedural rights of suspected or accused persons
procedural rights of suspected or accused persons in criminal proceedings" has approved the "roadmap or strengthening procedural rights of suspected or accused persons in criminal proceedings". (..) " with the specification
that "The rights mentioned in this roadmap, which may
be supplemented by other rights, are considered fundamental
fundamental procedural rights, and the action related to these rights should be given priority at this stage".

Well, the annex to the aforementioned Resolution provides for the measure sub E) "special guarantees for suspected or accused persons who are vulnerable": "in order to to guarantee the fairness of the proceedings, it is important to pay special attention to suspected or accused persons who are not able to understand or follow the content or the meaning of the proceedings for reasons such as age, mental or physical condition".

Finally, it is worth pointing out that in the case in question there is no violation of the principle of presumption of respect for fundamental fundamental rights by the other Member States - which underlies the system outlined by the MFA framework law - since the violation of the of the fundamental right to health of the surrendered person is independent of an an analysis of the legal system of the requesting state and is found exclusively in the peculiarity of the psychiatric illness (and the of the correlated needs of treatment) that has affected D. L.


Violation of Articles 3 and 110 of the Constitution


The failure to provide a reason for refusal related to the
potentially irreversible health conditions and the need 'to have
to have adequate care is also contrary to art. 3 of the Constitution.
Constitution.

The court notes that in the extradition procedure, art.
705, paragraph 2, letter c-bis) of the Code of Criminal Procedure provides that that the court pronounces judgment against extradition "if reasons of health or age 'involve the risk of consequences of exceptional exceptional gravity for the person requested."

While it is clear that the different treatment of the protection of the right to health in the two different procedures extradition finds its main rationale in the trust between states of the Union that permeates the system of the Euro-Mandate, and in the principle
of presumption of the respect of fundamental rights by the
other Member States, however, can not 'not fail to note that this foundation finds its limitation when basis finds its limit when the right to health is declined as a right to have adequate right to health as a right to have adequate individualized care: the psychiatric illness of D. psychiatric illness of D. L. in fact provides for the need 'to continue the therapeutic treatment in a protected context, such as the that of the family.

The failure to provide a reason for refusal related to the
health conditions of the surrenderer - in the case of mental illness
potentially chronic and irreversible mental illness - is in contrast with the principle of reasonable duration of the trial, in the double meaning of "objective guarantee", relating to the proper functioning of the of the administration of justice and the need to avoid the continuation of continuation of judgments dilated in time, as well as 'of "guarantee subjective guarantee", as the right of the accused to be judged - or in any case to see the conclusion of the procedural phase to which it is subjected - in a reasonable time, also sanctioned by art. 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Yet, in the case of chronic mental illnesses lasting in time and potentially intended to last for years, which require constant treatment for the purpose of compensation and containment, and
the establishment of a therapeutic relationship of fundamental importance with their health care professional, the system imposes an indefinite suspension, in the event that, with the passage of time, the mental state of the accused does not improve, it produces a procedural paralysis destined to last an indefinite time.
indefinite; this determines a stasis of the proceedings.

Such a procedural situation, paradoxically, jeopardizes even the
even the defendant, who, in case of completion of the process in his
process against him in absentia (possible in case of refusal of surrender in absentia (possible in case of refusal to surrender under Croatian procedural rules (8), could also defend himself from the point of view of imputability.

The rationale of Article 23 of Law 69/2005, as correctly
interpreted by the Supreme Court of Cassation in the above-mentioned sentence ruling requires identification of the ratio of the rule in the possibility possibility 'to suspend the execution of a procedural mae in the presence of a state of illness that has
presence of a state of illness that has a diagnosis and a foreseeable
foreseeable duration: a temporary and transitory state intended to
resolve in a well-defined time. The circumstance that in such cases
it is possible to suspend the execution of the mae presupposes the
awareness on the part of the legislator (first European and then Italian) of the right of the surrendered person to obtain adequate treatment in the country of residence; but quid iuris when the disease affects the psyche of the subject, in case of mental illness destined to last indefinitely?

The refusal to surrender instead, in concluding a phase
procedural phase, allows the issuing AG to proceed against the
subject - certainly not in vinculis but at large - and to
to come to a final pronouncement against him with the possibility
then to activate, at the end of the process, an enforceable EAW.

(1) D. L. was arrested on October 15, 2016 for the crime of
ill-treatment in the family; he was convicted for the crime of which
art. 572 of the penal code aggravated ex art. 94 of the penal code
criminal code because the act was committed in a state of intoxication
habitual intoxication by drugs, to the penalty of 3 years 5 months of
imprisonment; he served the sentence at first under house arrest and, after the conviction
house arrest and, following the conviction, in home detention, always in the form of
home detention, always in the form of hospitalization in psychiatric care
psychiatric care facilities, and precisely from 15 October
2016 to November 23, 2016 at the SPDC of ; from November 23, 2016
to December 14, 2017 at the ; from December 15, 2017 to August 8
2019 at the Community .

(2) "...do not fully concur with respect to the diagnosis of Schizoaffective Disorder
Schizoaffective Disorder (indicating the presence of both symptomatology
attributable to a thought disorder and one attributable
to a mood disorder), considering that mood alterations seem to have been
seem to have been prevalent in the years of chronic intoxication, to then become
intoxication, for then to become minor later on, leaving the greater space to the
greater space to the aspects more overtly psychotic. From
reports of the communities where the D. L. and 'was hosted emerges a
residual picture with symptoms dispersive, sometimes delusional or interpretive
or interpretative and not particular alterations of mood.
of the mood. (...) It appears to delineate a picture of vulnerability 'character and
character and personality' evolved in a disharmonious way with
vulnerability' to the psychosis, further complicated
by the assumption of substances ..." See expert report page 16.

(3) The expert further specified at the bottom of his report that
that "recent studies indicate how the first incarceration, the
the first weeks of incarceration, previous suicide attempts
and often young age represent factors of increased
risk factors for the possibility of a suicidal event. In the case
we are dealing not only with a subject who corresponds to the criteria
criteria just listed, but that presents also vulnerability 'further
further consequent to being carrier of pathology
psychiatric pathology, and that it would come moreover not only inserted in a
inadequate environment, restrictive, unknown but also in a place
of which he doesn't know the language further aggravating the
conditions and depriving him of an important tool for his balance, the possibility
equilibrium, the possibility of communicating, which already
in the actuality' appears deficient and needs support".

(4) See Cassation Sec. 6, judgment no. 20849 of April 26, 2018 Cc.
(dep. May 10, 2018) Rv. 272935-01.

(5) Cf. Constitutional Court, judgment no. 45 of 2015, within which
which this Court has stressed the difference between the different
situations of suspension, even for inability 'to participate
consciously in the process, intended for a limited duration in time
time and the suspension resulting from an irreversible incapacity,
which is destined to have no end, giving rise for the accused
the condition of "eternal judiciary". The difference is
fundamental and renders unreasonable the identity of the discipline.

(6) It seems appropriate to quote the conclusions of July 6, 2010,
delivered in the case of I. B. v. Belgium,
by the Advocate General (point 41): "If it is true that mutual recognition is an instrument
recognition is an instrument which strengthens the area of
area of freedom, security and justice, it is equally true that the
safeguarding of fundamental rights and freedoms
constitutes a prius that legitimizes the existence and the development of such an area.
of this area. The Framework Decision expresses itself repeatedly in this
in recitals 10, 12, 13 and 14 and in Article 1(3).
3».

(7) Inserted in the Code of Procedure by Article 3, paragraph 1, letter a) of the
Legislative Decree No. 149 of October 3, 2017.

(8) See article 402, paragraph 3 Law of Criminal Proceeding.

(OJ 1st Special Series - Constitutional Court No. 2 of 13-1-2021).