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EAW cannot be used for investigative purposes (Cass. 7861/23)

22 February 2023, Italian Supreme Court


In European Union law, the European Arrest Warrant may not be issued exclusively for investigative purposes, which are detached from the prosecution in the requesting state, since alternative instruments of European cooperation in the common legal space - like European investigation order - are provided for the pursuit of legitimate investigative purposes.



Judgment, (date of hearing 21/02/2023) 22/02/2023, No. 7861

Composed of the Honorable Messrs:

Dr. VILLONI Orlando - President -

Dr. GIORDANO Emilia A. - rel. Councilor -

Dott. DE AMICIS Gaetano - Councilor -

Dott. TRIPICCIONE Debora - Councilor -

Dr. DI GIOVINE Ombretta - Councilor -

pronounced the following:


On the appeal brought by:

A.A., born in (Omissis);

against the judgment of 20/01/2023 of the Court of Appeal of Bari;

Having regard to the acts, the contested order and the appeal;

Hearing the report delivered by Councilor Dr. GIORDANO Emilia Anna;

heard the conclusions of the Public Prosecutor, in the person of Deputy Attorney General Dr. LETTIERI Nicola, who concluded by requesting the dismissal of the appeal;

heard the conclusions of the appellant's counsel, lawyer CASTRONOVI Andrea, who referred to the grounds of appeal and asked that they be granted.
Conduct of the trial.
1. The Court of Appeal of Bari ordered the execution of the procedural arrest warrant issued against A.A. by surrender to the judicial authority of Poland, for crimes against property committed in the locality of (Omissis). The appellant is under house arrest.

2. With the grounds of appeal, summarized below in accordance with Article 173 disp. att. c.p.p. within the limits strictly necessary for the purposes of motivation, A.A. complains, with a single and composite ground of appeal, violation of the law, also for lack of motivation, in relation to Art. 5 TEU and Articles 6, 7 and 52 of the CDFUE as well as Articles 5 and 8of the ECHR with regard to the lack of proportionality in the issuance of the warrant, relating to acts committed in the year 2005 and lacking in the indication of the reasons for which the surrender is requested. The warrant does not indicate that it was issued for the purpose of prosecution but appears to have been issued for mere investigative needs, which are not better specified. The impossibility of issuing arrest warrants for investigative purposes is confirmed by Directive 2014/41/EU. The ordered surrender, in execution of the warrant, has an extremely serious impact on the family relations of the applicant, who has lived permanently in Italy since 2008, in the face of the principle of proportionality, enshrined in the Charters and defined as a fundamental right of the person, and which requires that each action must be pursued in the manner that compromises the fundamental rights of the person concerned to the least extent possible. In the meantime, the appellant has also compensated damages to the offended persons, as attested by the payments made to them in correspondence with the amounts indicated in the correlative fraud charges underlying the warrant.
Reasons for the decision
1. The appeal is well-founded and the appealed judgment must be annulled with reference, for the reasons set out below in line with the precedent of this Court, referred to extensively in the appeal, and consisting of Judgment No. 14937 of April 14, 2022 (n. m.).

The Court of Appeals considered irrelevant, in light of the changes made as a result of Legislative Decree No. 10 of 2021, the possible commencement of the statute of limitations of the crimes for the Italian legal system; the indication of the crimes contained in the arrest warrant was sufficient since the requirement of dual criminality is relevant "regardless of the legal qualification and the individual constituent elements," and likewise irrelevant was A.A.'s residence in Italy, excluding that there are conditions for mandatory or optional refusal.

It notes, moreover, that the European arrest warrant was issued on the basis of an enforceable provisional arrest order of the Bialograd District Court dated February 18, 2019. The warrant and the concise accompanying documentation do not specify the reasons justifying its issuance, which could refer either to the exercise of criminal prosecution, thus functional to ensure the presence of the defendant in the trial against him, or be instrumental exclusively to investigative or inquiry needs, in any case unspecified in content and time. The appellant, among other things, attached documentation attesting to the payment of the sums indicated in the charge as the basis of the warrant on the assumption that the offended persons could remit the complaint and attached, as well, documentation proving that he is rooted in Italy, a country in which he has been permanently residing since 2008, where he cohabits with an Italian woman and where he has a regular employment contract.

Article 1(1) of Framework Decision 2002/584/JHA, as is well known, defines a European arrest warrant as "a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a person wanted for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order."

This definition does not contemplate a European Arrest Warrant instrumental to merely investigative needs, since the same must still be for the purpose of prosecution.

This Court has, moreover, affirmed that a European arrest warrant issued exclusively for the purpose of subjecting the person requested to surrender to acts of investigation (in this case, interrogations and confrontations) cannot be executed, because in this way the coercive instrument would be used for investigative purposes, which are not provided for by the Framework Decision of June 13, 2002 and its implementing law of April 22, 2005 No. 69 (Sez. 6, No. 15970 of 17/04/2007, Piras, Rv. 236378).

It is true that the jurisprudence of this Court of legitimacy has, on other occasions, deemed legitimate the surrender in execution of a European arrest warrant for the purpose of prosecution in relation to the measure aimed at allowing the taking of an interrogation (Sez. 6, no. 43386 of 11/10/2016, Berdzik, Rv. 268305), confrontation (Sect. 6, no. 51511 of 18/12/2013, Lampugnani, Rv. 58510) and accompaniment for investigative purposes for the performance of interrogation and formal reconnaissance (Sect. 6, no. 45043 of 20/12/2010, Velardi, Rv. 249219).

In these pronouncements, however, the Court decided cases in which the investigative acts to be performed were specifically identified, determined ab origine, and not absolutely indeterminate, as in the present case.

The recalled pronouncements, insofar as they refer to the legitimacy of the European Arrest Warrant both for the taking of evidence in criminal proceedings and for exclusively investigative reasons, must, moreover, be actualized through the comparison of the older principles with the instruments that realize the purpose of cooperation between states, in the manner of Directive 2014/41/EU of the European Parliament and of the Council of April 3, 2014, on the European Investigation Order in criminal matters.

Recital No. 25 of the latter directive states that "This Directive lays down rules on the performance at all stages of criminal proceedings, including trial proceedings, of an investigative measure, if necessary with the participation of the person concerned for the purposes of gathering evidence.

For example, a European Investigation Order may be issued for the temporary transfer of such a person to the issuing state or for the conduct of a hearing by videoconference. However, where such a person is to be transferred to another member state for the purposes of criminal proceedings, including for the purpose of appearing before a court for trial, a European Arrest Warrant (EAW) should be issued in accordance with Council Framework Decision 2002/584/JHA." Recital 26 adds that "To ensure proportionate use of the EAW, the issuing authority should examine whether an EIO is an effective and proportionate means of conducting criminal proceedings. The issuing authority should examine, in particular, whether the issuance of an EIO for the purpose of hearing a person under investigation or an accused person by videoconference may be a viable alternative."

These predictions demonstrate how, in European Union law, the European Arrest Warrant cannot be issued solely for investigative purposes, detached from the prosecution in the requesting state, as alternative means of European cooperation in the Common Legal Space are provided for the pursuit of legitimate investigative purposes.

The objective uncertainty as to the reasons that were given for the adoption of the European Arrest Warrant at issue, also in light of the documentation produced by the defense and which, it is claimed, was also transmitted to the Bialograd Tribunal, requires clarification, through the request for additional information to the issuing authority, pursuant to L. No. 69 of 2005, Art. 16, which procedural and/or investigative acts are to be carried out with the presence of the person requested to be surrendered, and whether his presence, also in light of the restitutions made, is indispensable for the continuation of the proceedings or for the purposes of the prosecution and the impossibility of ensuring, according to the rules of the Polish trial, its celebration without the physical presence of the defendant in Poland. Indeed, only such an assessment will make it possible to clarify whether the European Arrest Warrant conforms to the paradigm outlined in Article 1(1) of Framework Decision 2002/584/JHA and to examine fully the complaint made by the applicant.

On the basis of these findings, the appeal must be upheld and the judgment under appeal must be set aside with referral to another section of the Bari Court of Appeal for it to acquire the additional information indicated above.
Annuls the appealed judgment and remands for new judgment to another section of the Court of Appeal of Bari. Sends to the Clerk's Office for the fulfilments of Law No. 69 of 2005, Article 22, Paragraph 5.
Thus decided in Rome, February 21, 2022.

Filed in the Registry on February 22, 2023.