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Is right to health a new EAW refusal ground? (Corte Costituzionale, 216/21)

18 November 2021, Italian Constitutional Court

Tag

lego salute
I diritti delle immagini appartengono ai rispettivi proprietari (che saremo lieti di indicare in caso di richiesta).

It's up to the Court of Justice in Luxembourg to decide whether Article 1/3 Framework Decision 2002/584/JHA on the European Arrest Warrant which rules to respect the fundamental rights and fundamental legal principles enshrined in Article 6 of the Treaty on European Union, read in the light of Art. 3, 4 and 35 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that, where the executing judicial authority considers that the surrender of a person suffering from a serious, chronic and potentially irreversible disease could place him in danger of suffering serious harm to his health, it must request from the issuing judicial authority information enabling it to rule out the existence of such a risk and must refuse to surrender the person if it does not obtain such assurances within a reasonable period of time.

(automatic unofficial  translation)


Constitutional Court
ORDINANCE NO. 216
YEAR 2021

 composed of Messrs: President : Giancarlo CORAGGIO; Judges : Giuliano AMATO, Silvana SCIARRA, Daria de PRETIS, Nicolò ZANON, Franco MODUGNO, Augusto Antonio BARBERA, Giulio PROSPERETTI, Giovanni AMOROSO, Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO,

has pronounced the following

ORDER

in the judgment on the constitutional legitimacy of Articles 18 and 18-bis of Law no. 69 of April 22, 2005 (Provisions to bring domestic law into line with Framework Decision 2002/584/JHA of the Council of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States), promoted by the Court of Appeal of Milan, Fifth Criminal Section, in the criminal proceedings against E. D.L, by order of 17 September 2020, registered under no. 194 of the register of orders 2020 and published in the Official Gazette of the Republic no. 2, first special series, of the year 2021.

Having regard to the act of constitution of E. D.L., as well as the act of intervention of the President of the Council of Ministers;

Hearing at the public hearing of 22 September 2021, the Judge-Rapporteur, Francesco Viganò;

having heard the lawyers Vittorio Manes and Nicola Canestrini on behalf of E. D.L. and the lawyer for the State, Maurizio Greco, on behalf of the President of the Council of Ministers;

deliberated in the council chamber of September 23, 2021.

Facts of the case

By order of September 17, 2020, the Court of Appeal of Milan, Fifth Criminal Section, raised questions of constitutional legitimacy of articles 18 and 18-bis of Law no. 69 of April 22, 2005 (Provisions to bring domestic law into line with Council Framework Decision 2002/584/JHA of June 13, 2002 on the European arrest warrant and the surrender procedures between Member States), with reference to articles. 2, 3, 32 and 110 (recte: 111, as clarified by the referring court in the subsequent order of correction of material error of February 2, 2021) of the Constitution, insofar as they do not provide for as a ground for refusing surrender, in the context of European arrest warrant procedures, "chronic health reasons of indefinite duration entailing the risk of exceptionally serious consequences for the requested person".

1.1.- The Referring Court sets out that the Municipal Court of Zadar (Croatia) issued on 9 September 2019 a European Arrest Warrant for the purpose of prosecution of E. D.L., accused of the crime of possession for the purpose of dealing and transfer of drugs, committed in Croatian territory in 2014.

The Court of Appeal of Milan, the judge competent for the passive procedure of surrender, having taken note of the medical documentation produced by the defense, which attested important psychiatric disorders also related to the past abuse of drugs, in particular cannabis and methamphetamine, submitted E. D.L. to a psychiatric expertise, from which emerged, among other things, the presence of a "psychotic disorder not otherwise specified", which requires the continuation of pharmacological and psychotherapeutic therapy to avoid probable episodes of psychic decompensation. The report also pointed out a "strong suicidal risk" related to possible incarceration, concluding that the person concerned "is not an individual suitable for prison life, needing to be able to maintain the [therapeutic] course started and that can be said to be today started but certainly far from being concluded".

On the basis of this expert opinion, the referring court considers that "[t]he transfer to Croatia [of the person concerned], in execution of the court order, in addition to interrupting the possibility of treatment, with a consequent worsening of the general state of the person concerned, constitutes a concrete risk to the health of the subject that could have effects of exceptional gravity, given the clear risk of suicide highlighted by the expert".

1.2.- The Court of Appeal of Milan, however, notes that the obligation to execute a European arrest warrant is limited only to the mandatory or optional grounds for refusal peremptorily provided for by articles 18 and 18-bis of law no. 69 of 2005, since there is no general ground for refusal based on the need to avoid violations of the fundamental rights of the person requested to be surrendered, such as in particular the right to his/her health.

He observes, on the other hand, that once the Court of Appeal has ordered the surrender of the person concerned, the President of the Court or his delegate could suspend its execution pursuant to article 23, paragraph 3, of the law itself. However, in the opinion of the referring judge this solution would not be suitable to ensure full protection of the rights of the person concerned. In fact, it would end up removing from the judicial phase of the procedure the assessment of the state of health of the person concerned, which would be postponed to a phase of executive nature destined to end with a non-appealable act. Moreover, the suspension of the proceedings would have, in cases such as the one at issue, an indeterminable duration, given the chronic nature of the disease from which the person requested suffers; while the rationale of the remedy of art. 23, paragraph 3, of Law no. 69 of 2005 should be identified in the possibility to suspend the arrest warrant aimed at the exercise of criminal prosecution "in the presence of a state of illness that has a diagnosis and a foreseeable duration".

Finally, the referring judge points out that the case under examination does not concern structural or systemic deficiencies of the issuing State, such as to undermine the presumption of respect for fundamental rights by the State itself, but only the peculiarity of the psychiatric illness (and related treatment needs) of the person concerned.

1.3.- In these conditions, concludes the Court of Milan, the decision to order the surrender of the person concerned would result in the violation of his right to health, "interpreted in the various meanings of the right to physical inviolability, and the right to adequate treatment", and protected as such by both Articles 2 and 32 of the Italian Constitution, as well as - at the level of European Union law - by Article 35 of the Charter of Fundamental Rights.

Moreover, the current legislation violates the principle of equality under Article 3 of the Italian Constitution, by treating persons affected by a European arrest warrant less favourably than those whose extradition is requested, for whom Article 705, paragraph 2, letter c-bis) of the Code of Criminal Procedure provides that the Court of Appeal pronounces a judgment against extradition "if reasons of health or age entail the risk of exceptionally serious consequences for the requested person".

Finally, the failure to provide for a ground for refusal related to the health conditions of the person concerned, in case of chronic and potentially irreversible illness, would be in contrast with the principle of reasonable duration of the trial as set forth in art. 111 Cost. (and art. 6 of the European Convention on Human Rights), since in such cases the current discipline would produce - as a result of the measure of suspension of execution following the pronouncement that provides for the delivery, pursuant to art. 23, paragraph 3, of Law no. 69 of 2005 - "a procedural paralysis destined to last indefinitely". This would be in contrast, in fact, with the twofold ratio, objective and subjective, underlying the principle of reasonable duration: related, on the one hand, the "good functioning of the administration of justice and the need to avoid the continuation of judgments extended in time", and, on the other hand, the "right of the accused to be judged - or at least to see the conclusion of the procedural phase to which it is subject - in a reasonable time. If, on the other hand, the court of appeal were allowed to refuse the surrender in the hypotheses under examination, the issuing judicial authority would be able to proceed in absentia against the person in question and thus reach a final sentence against him, with the possibility of activating an executive arrest warrant once the trial is over.

2.- The President of the Council of Ministers, represented and defended by the Attorney General's Office, has intervened, requesting that the questions be declared inadmissible or, in any case, unfounded.

The intervener points out, first of all, that the possibility of suspension of delivery guaranteed by art. 23, paragraph 3, of Law no. 69 of 2005 would avoid any violation of the right to health of the person requested.

He then observes that the results of the expert's report ordered by the Court of Appeal, as summarized in the order of referral, would not show the irreversibility of psychiatric illnesses from which the person concerned would be affected, nor specific elements able to corroborate the hypothesized suicide risk, which would determine an insufficient description of the case in question.

In any event, the Court of Appeal could - in the opinion of the Advocate General of the State - have followed, in the specific case, the procedure indicated by the Court of Justice of the European Union in a number of recent cases concerning conditions of prison overcrowding or systemic or generalised deficiencies concerning the independence of the judiciary of the issuing State (the judgments of 5 April 2016, in Joined Cases C-404/15 and C-659/15 PPU, Aranyosi and Căldăraru are cited; 25 July 2018, in Case C-216/18 PPU, LM; 25 July 2018, in Case C-220/18 PPU, ML; 15 October 2019, in Case C-128/18, Dorobantu), there being no reason to consider that such a mechanism does not operate when "the possible impairment of a fundamental right of the person (in the present case, even the right to life) depends on situations not attributable to the issuing State". According to the Advocate General of the State, it follows that "the judge should have first of all provided for the integration of the knowledge framework at his disposal (especially [.... ] with reference to the forms of therapeutic and psychological assistance and surveillance that can be activated, in case of surrender, by the issuing State) and, only at the end, determine accordingly, possibly [...] also "...terminating..." the EAW procedure where the hypothesized problem did not appear to be solvable "...in a reasonable time..."".

The activation of the procedure introduced by the judgments of the Court of Justice, starting from the Aranyosi judgment, would also deprive of foundation - in the opinion of the Attorney General's Office - the complaints relating to the alleged violation of the principle of equality with respect to the discipline of the extradition procedure, "substantially identical appearing, all things being equal, the possible negative unblocking of the two different procedures", as well as that relating to the reasonable duration of the surrender procedure, which would itself be incorporated in the "Aranyosi test".

3.- E. D.L. appeared before the court through his lawyers, who in their briefs insisted on the acceptance of the questions raised, subject to possible referral to the Court of Justice for a preliminary ruling, stressing in particular how the execution of the European arrest warrant can never be to the detriment, in the European Union system as well as in the Italian system, of the protection of fundamental human rights, including the right to health, directly connected to the inalienable value of human dignity.

4.- The Union of Italian Criminal Chambers (UCPI), as well as the European Criminal Bar Association and Fair Trials have filed written opinions as amici curiae.

By decree of the President of this Court of July 12, 2021, the opinions of the UCPI and the European Criminal Bar Association were admitted, both of which put forward arguments in favor of the validity of the questions raised, subject to possible referral to the Court of Justice of the European Union for a preliminary ruling. The opinion of Fair Trials was not admitted as it was written in a language other than Italian, which is the language of proceedings before this Court.

5.- During the hearing held before this Court, the counsel for E. D.L. requested that the acts be returned to the referring judge, arguing that the entry into force, in the medium term, of Legislative Decree No. 10 of 2 February 2021 (Provisions for the full adaptation of national legislation to the provisions of Framework Decision 2002/584/JHA, on the European arrest warrant and the procedures for delivery between member states, in implementation of the delegation referred to in Article 6 of Law No. 117 of 4 October 2019) would require a new assessment of the case. 117) would require a new assessment of the relevance and not manifest groundlessness of the questions, in relation - in particular - to the new wording of Article 2 of Law No. 69 of 2005, which, in the opinion of the defenders themselves, would require the Italian judicial authority not to order the surrender when it entails a risk of violation of the inalienable rights of the human person recognized by the Italian Constitution, the ECHR and the same Article 6 of the Treaty on European Union (TEU).

Considered in law

1.- The Court of Appeal of Milan, Fifth Criminal Section, has raised questions on the constitutional legitimacy of Articles 18 and 18-bis of Law 22 April 2005, n. 69 (Provisions to bring domestic law into line with Framework Decision 2002/584/JHA of the Council of 13 June 2002 on the European Arrest Warrant and the surrender procedures between Member States), insofar as these provisions do not provide as a reason for refusing the surrender "chronic health reasons of indefinite duration involving the risk of consequences of exceptional gravity for the person requested".

According to the referring judge, the failure to provide for this reason for refusal would harm the right to health of the person concerned, protected by Articles 2 and 32 of the Constitution.

Moreover, the referring judge complains about a difference in treatment, which is detrimental to art. 3 of the Constitution, between the discipline under examination and the one provided for extradition procedures, in which art. 705, second paragraph, letter c-bis) of the Code of Criminal Procedure expressly provides that extradition is denied "if health or age reasons entail the risk of exceptionally serious consequences for the requested person".

Finally, the legislation violates the principle of reasonable duration of the trial, enshrined in art. 111, second paragraph, of the Italian Constitution, determining a procedural stasis for an indefinite period of time, which could be avoided if the Italian judge were allowed to conclude the proceedings with the refusal of surrender.

In essence, the referring judge complains that he cannot refuse to execute an arrest warrant - unlike what happens in extradition procedures - when the surrender of the person concerned would expose him to an exceptionally serious risk to his health in relation to chronic pathologies of indefinite duration.

It is not up to this Court to assess the actual existence of such risk in the case examined by the referring judge. Contrary to what the Avvocatura Generale dello Stato maintains, it must in fact be observed that the order of referral gives reasons in a not implausible manner - on the basis of a psychiatric expert's report ordered in the course of the surrender proceedings - as to the existence of a serious risk to the health of the person concerned, including a significant risk of suicide, which could result from his surrender to the judicial authority of the issuing State and from his placement in prison during the proceedings. This is sufficient for the purposes of verifying the relevance of the questions of constitutional legitimacy raised in the case in question.

3.- It is also necessary to specify that, after the referral order, both art. 18 of law no. 69 of 2005, concerning the grounds for compulsory refusal of surrender, and art. 18-bis of the same law, concerning the grounds for optional refusal of surrender, have been modified by the legislative decree no. 10 of February 2, 2021 (Dispositions for the full implementation of the constitutional law). 10 (Provisions for the full adaptation of national legislation to the provisions of Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between member states, in implementation of the delegation referred to in Article 6 of Law No. 117 of 4 October 2019).

Moreover, not even in the text in force today, Articles 18 and 18-bis of Law No. 69 of 2005 provide that the surrender of a person must or may be refused if this would expose him or her to an exceptionally serious risk to his or her health; therefore, the questions raised by the referring judge could be formulated in an identical manner also with respect to the new discipline.

In any event, pursuant to art. 28, paragraph 1, of Legislative Decree no. 10 of 2021, the amendments made to Law no. 69 of 2005 do not apply to proceedings for the execution of arrest warrants already in progress, such as the one pending before the referring judge. On the contrary, the provisions previously in force, with respect to which the questions of constitutional legitimacy being examined here are formulated, continue to apply to such proceedings.

For these reasons, the need for a return of the acts for a new examination of the relevance and not manifest groundlessness of the question in the light of the new regulations concerning articles 18 and 18-bis of Law no. 69 of 2005 must be excluded.

At the hearing the counsel for the interested party requested that the acts be returned to the referring judge, for a new assessment of the relevance and not manifest groundlessness of the questions of constitutional legitimacy raised in the light of the amendments made by Legislative Decree no. 10 of 2021 to art. 2 of Law no. 69 of 2005.

According to the defendants, the new wording of art. 2 of Law no. 69 of 2005, modifying the systemic framework of reference, would require the referring judge not to order the delivery of the person concerned even in cases other than those governed by art. 18 and 18-bis of the same law, when the surrender entails the risk of violating the inalienable rights of the person recognized by the Italian Constitution, or the fundamental rights enshrined in Art. 6 of the Treaty on European Union (TEU) and the European Convention on Human Rights (ECHR), including in particular the right to health of the person concerned.

This request cannot be granted.

In fact, the amendments to art. 2 of Law no. 69 of 2005 introduced by the Legislative Decree no. 10 of 2021 do not apply to the surrender procedures already pending at the time of the entry into force of such legislative decree, by virtue of its art. 28, paragraph 1, mentioned above; therefore, the referring Court of Appeal should in any case apply the rules previously in force. Nor, as will be discussed in greater detail (point 7 below), are these amendments capable of altering the systemic framework within which the questions of constitutional legitimacy are set.

5.- On the merits, the questions that this Court is called upon to decide do not concern only the compatibility of the provisions censured with the Italian Constitution, but first and foremost involve the interpretation of the law of the European Union, of which the national law censured constitutes specific implementation.

In fact, Articles 3, 4 and 4-bis of Framework Decision 2002/584/JHA on the European Arrest Warrant, which regulate the mandatory and optional grounds for refusal of surrender, do not expressly include among them the situation of serious danger to the health of the person concerned resulting from the surrender itself, connected to a chronic disease and of potentially indefinite duration. Therefore, the doubts - raised by the referring judge - about the compatibility of art. 18 and 18-bis of Law no. 69 of 2005 with the Italian Constitution cannot but affect also the discipline of art. 3, 4 and 4-bis of the Framework Decision, in relation to the corresponding fundamental rights recognized by the Charter and art. 6 TEU.

6.- For the purpose of deciding the questions raised, it is necessary first of all to ask whether the danger of serious damage to the health of the person concerned as a result of his or her surrender to the judicial authority of the issuing state can be adequately dealt with by suspending the surrender pursuant to art. 23, paragraph 3, of Law no. 69 of 2005, which implements in Italian law the provision of art. 23, paragraph 4, of Framework Decision 2002/584/JHA.

The Court of Appeal of Milan believes that such a suspension does not constitute an adequate remedy to ensure the protection of the health of the interested party in cases such as the one under examination, characterized by the presence of chronic pathologies of indefinite duration.

This assumption, shared by the defense of the interested party, is instead contested by the Attorney General's Office, which in its intervention has pointed out that in the case under examination the suspension of delivery could well be ordered.

This Court agrees with the assessment of the referring judge, for the following reasons.

6.1. - Art. 23, paragraph 3, of law no. 69 of 2005 provides: "When there are humanitarian reasons or serious reasons 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 measure of delivery, giving immediate notice to the Minister of Justice".

6.2.- As anticipated, this provision constitutes a specific implementation in national law of the provision of art. 23, paragraph 4, of framework decision 2002/584/JHA, which in turn provides: "Surrender may, exceptionally, be temporarily deferred on serious humanitarian grounds, for example if there are compelling reasons to believe 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 shall immediately inform the issuing judicial authority and agree on a new surrender date. In that case, the surrender shall take place within ten days of the new date agreed upon".

In the Framework Decision, in the light of which the Italian provision must be interpreted, the "exceptional" postponement of surrender therefore seems to be provided for in relation to situations that are merely "temporary" in nature, which would make immediate surrender of the person concerned contrary to the sense of humanity.

This remedy seems, instead, incongruous in relation to chronic pathologies of indefinite duration such as those afflicting the person concerned. In such cases, the postponement of the execution of the European arrest warrant, even if already authorized by the court of appeal, would risk lasting indefinitely. This would ultimately deprive the surrender order itself of any useful effect, thus risking preventing the issuing State, depending on the case, from prosecuting or executing the sentence against the person concerned.

Moreover, such a remedy would not guarantee full protection even to the person concerned, who - as the referring judge rightly points out - does not have today the possibility to assert his chronic pathologies within the surrender proceedings, in which his defence guarantees are fully deployed, and therefore finds himself having to allege them at a subsequent procedural stage, destined to result in a measure of the president of the court or his delegate (in the sense of the non-revocability of the health problems of the person concerned in the surrender proceedings, see, most recently, Corte di cassazione, sezione sesta penale, sentences 25-26 June 2020, no. 19389 and February 12-14, 2020, no. 5933).

Finally, the prolongation of postponements based on chronic health reasons hindering the surrender would keep the person concerned in a situation of continuous uncertainty about his or her fate, in contrast with the need to guarantee a reasonable term of duration in any proceedings that may affect his or her personal freedom.

6.4.- From this it follows that, in the opinion of this Court, the remedy of the suspension of delivery in art. 23, paragraph 3, of Law No. 69 of 2005 can not be considered appropriate remedy in case of serious chronic diseases and indefinite duration that prevent the execution of delivery.

7.- At this point, it is necessary to ask whether the general clauses contained in articles 1 and 2 of law no. 69 of 2005, in the text - applicable in the main proceedings - prior to the amendments made by legislative decree no. 10 of 2021, authorize the Italian judicial authority not to order the surrender also in cases other than those mentioned in articles 18 and 18-bis of the law, when the surrender itself may expose the person concerned to the risk of violation of a fundamental right recognized by the Italian Constitution or by the law of the European Union.

As mentioned above, this interpretation was upheld at the hearing by the counsel for the interested party in relation to the new wording of art. 2 of Law no. 69 of 2005, introduced by Legislative Decree no. 10 of 2021, which is not applicable in the main proceedings. However, it could also be put forward on the basis of the same arguments in relation to the old wording of articles 1 and 2 of the same law, which remain applicable there. The interpretation in question deserves, therefore, to be examined here in full, since - if it were to be considered correct - the referring judge would have the possibility of refusing to hand over the person concerned already on the basis of the law in force, without the need for any pronouncement of constitutional illegitimacy.

In the opinion of this Court, however, such an interpretation cannot be shared, for the following reasons.

7.1.- Prior to the amendments most recently made by Legislative Decree no. 10 of 2021, art. 1, paragraph 1, of Law no. 69 of 2005 provided: "This law implements, in the internal system, the provisions of the framework decision 2002/584/JHA of the Council of 13 June 2002, hereinafter referred to as "framework decision", on the European arrest warrant and the surrender procedures between Member States of the European Union to the extent that these provisions are not incompatible with the supreme principles of the constitutional system in terms of fundamental rights, as well as in terms of freedom and due process". The final clause starting with the words "within the limits in which" has now been repealed by Legislative Decree no. 10 of 2021.

Article 2 of Law no. 69 of 2005, in the text prior to the amendments made by Legislative Decree no. 10 of 2021, provided that Italy would execute the European arrest warrant in compliance with the fundamental rights guaranteed by the ECHR, in particular articles 5 and 6 thereof, and its protocols. 5 and 6, and its additional protocols, as well as the "principles and [del]rules contained in the Constitution of the Republic, pertaining to due process", with particular reference to the principles on the protection of personal freedom, the right of defense, criminal responsibility and the quality of criminal sanctions. This provision has been fully reformulated by Legislative Decree no. 10 of 2021, and now provides that "[t]he execution of the European arrest warrant may not, in any case, entail a violation of the supreme principles of the constitutional order of the State or of the inalienable rights of the person recognized by the Constitution, of the fundamental rights and fundamental legal principles enshrined in Article 6 of the Treaty on European Union or of the fundamental rights guaranteed by the [ECHR] and the Additional Protocols thereto". The wording in force today, therefore, restricts the scope of the clause foreseen by the original text, no longer mentioning the entire range of constitutional principles and rules, but only the "supreme principles of the constitutional order of the State" and the "inalienable rights of the person" recognized by the Constitution.

7.2.- Moreover, neither the previous text of articles 1 and 2 of law no. 69 of 2005, nor the text in force today of art. 2 of the same law expressly clarify whether the single judicial authority competent for the procedure of surrender - in the Italian system, the court of appeal identified according to art. 5 - must verify, in each concrete case, whether the execution of a European arrest warrant issued by the judicial authority of another Member State may result in the violation of one of the rights or principles (national and European) to which Law no. 69 of 2005, both in the previous text and in the current one, states to be bound.

These provisions must, therefore, be interpreted in the light of the overall discipline of the Framework Decision 2002/584/JHA, of which the entire Law no. 69 of 2005 is implemented in national law.

7.3.- The general principle according to which the Framework Decision on the European Arrest Warrant, and consequently its implementation at the level of each Member State, must respect the fundamental rights enshrined in Article 6 TEU is explicitly affirmed, both by recital 12 and by Article 1(3) of the Framework Decision. Moreover, this principle underlies the entire legal order of the Union, in which - as is clear, inter alia, from Article 51(1) of the Charter of Fundamental Rights of the European Union (CFREU) - fundamental rights are binding both on the institutions, bodies, offices and agencies of the Union, first and foremost in their legislative output, and on the Member States when they implement Union law.

As stated by the Court of Justice, however, Member States are precluded from making the implementation of Union law, in areas subject to full harmonisation, conditional on compliance with purely national standards of protection of fundamental rights, where this might undermine the primacy, unity and effectiveness of Union law (Court of Justice of the European Union, judgment of 26 February 2013, in case C-617/10, Fransson, paragraph 29; judgment of 26 February 2013, in case C-399/11, Melloni, paragraph 60). Rather, the fundamental rights to which the Framework Decision is bound by Article 1(3) are those recognized by European Union law, and consequently by all the Member States when they implement Union law: fundamental rights that are defined, moreover, by the very constitutional traditions common to the Member States (Article 6(3) TEU and Article 52(4) CDFU).

7.4.- From this it follows that it is primarily up to EU law to establish the standards of protection of fundamental rights to which the legitimacy of the European arrest warrant, and its concrete execution at national level, are subject, since this is a matter subject to full harmonisation.

The precise provision, in articles 3, 4 and 4-bis of the framework decision 2002/584/JHA, of the possible grounds for refusal of surrender, mandatory or optional, aims precisely to ensure that the concrete implementation of the discipline on the European arrest warrant respects the fundamental rights of the person - in the extension recognized by the Charter, in the light of the ECHR and the common constitutional traditions - in accordance with the principle set out in recital 12 and art. 1, paragraph 3, of the framework decision.

At the same time, this precise discipline is functional to ensure the uniform and effective application of the legislation on the European Arrest Warrant, which is based on the assumption of mutual trust between the Member States on the respect of fundamental rights by each. These requirements of uniformity and effectiveness mean that it is, as a rule, precluded for the judicial authorities of the executing State to refuse surrender outside the cases imposed or permitted by the Framework Decision, on the basis of purely national standards of protection, not shared at European level, of the fundamental rights of the person concerned (Court of Justice of the European Union, judgment of 5 April 2016, in Joined Cases C-404/15 and C-659/15 PPU, Aranyosi and Căldăraru, paragraph 80).

7.5.- Consequently, it would be manifestly contrary to this principle to interpret national law to grant the executing judicial authority the power to refuse to surrender the person concerned outside the mandatory cases provided for by law in accordance with the provisions of the Framework Decision, on the basis of provisions of a general nature such as those contained in the text of Articles 1 and 2 of Law No. 69 of 2005 prior to the amendments made by Legislative Decree No. 10 of 2021, or such as Article 2 of the same law in the wording in force today.

And this also in the event that, in the opinion of the competent judge, the execution of the European arrest warrant would lead in the specific case to a result in contrast with the supreme principles of the constitutional order or with the inviolable rights of the person, since only this Court is reserved the verification of the compatibility of EU law, or of the national law implementing EU law, with such supreme principles and inviolable rights (Order No. 24 of 2017, point 6).

8.- Moreover, Union law itself could not tolerate that the execution of the European Arrest Warrant results in a violation of the fundamental rights of the person concerned recognized by the Charter and Article 6(3) TEU.

8.1.- Precisely in order to prevent the implementation of the Framework Decision on the European Arrest Warrant from leading in a concrete case to violations of the fundamental rights of the person concerned, in situations in which the Framework Decision does not expressly provide for grounds for refusing surrender, the case law of the Court of Justice has recently intervened on several occasions to define, by way of interpretation, procedures suitable for reconciling the requirements of mutual recognition and execution of judicial decisions in criminal matters with respect for the fundamental rights of the person concerned.

This has been the case, in particular, in relation to the danger that the execution of a European Arrest Warrant may expose the person concerned to inhuman and degrading conditions of detention in the issuing State as a result of systemic and generalized deficiencies or otherwise affecting certain groups of persons or certain detention centers (Court of Justice of the European Union, Aranyosi judgments, cit. ; 25 July 2018, in Case C-220/18 PPU, ML; 15 October 2019, in Case C-128/18, Dorobantu), as well as to the danger of being subjected to a trial not respecting the guarantees set out in Article 47 CDFUE, as a consequence of systemic and generalized deficiencies concerning the independence of the judiciary in the issuing State (judgments of 25 July 2018, in Case C-216/18 PPU, LM; 17 December 2020, in Joined Cases C-354/20 PPU and C-412/20 PPU, L and P).

These procedures, based on direct dialogue between the judicial authorities of the executing State and those of the issuing State pursuant to Article 15(2) of the Framework Decision, are precisely intended to enable the executing judicial authorities to ensure, in the specific case, that the surrender of the person concerned does not expose him or her to possible infringements of his or her fundamental rights. Only if such an assurance cannot be obtained as a result of the discussion will the executing judicial authority be allowed to refrain from proceeding with the European arrest warrant and thus refuse surrender beyond the cases expressly authorized by Articles 3, 4 and 4a of the Framework Decision.

The aforementioned judgments of the Court of Justice have thus introduced into Union law mechanisms that make it possible to ensure the protection of the fundamental rights of the persons concerned by a European arrest warrant, within the framework of a system of common rules that are binding on all the Member States.

8.2.- The Avvocatura Generale dello Stato has argued that the Court of Appeal of Milan could already, on the basis of these judgments of the Court of Justice, have initiated the necessary dialogue with the judicial authorities of the issuing State, in order to ascertain whether the person concerned could be guaranteed suitable treatment in that State, during the trial, in order to avoid serious damage to his health, and - in the event that the dialogue proves negative - refrain from proceeding with his surrender.

This Court is not persuaded by this argument.

In fact, the above-mentioned rulings of the Court of Justice all concern dangers of violation of the fundamental rights of the person concerned linked to systemic and generalised deficiencies of the issuing State, or in any case to situations involving certain groups of persons or entire detention centers. The questions raised by the Court of Appeal of Milan, which this Court is called to decide, concern instead the different hypothesis in which the pathological conditions, of a chronic nature and of indefinite duration, of the individual requested are likely to worsen significantly in the event of surrender, in particular where the issuing State should order his/her detention in prison.

It is therefore necessary to ask whether the principles already set out by the Court of Justice in the above-mentioned judgments should be extended to this hypothesis, by analogy, with particular reference to the obligation for direct dialogue between the judicial authorities of the issuing State and those of the requested State, as well as the possibility for the latter to terminate the surrender procedure if the existence of a risk of violation of the fundamental rights of the person concerned cannot be excluded within a reasonable time.

The requirements of uniformity and effectiveness in the application of the European Arrest Warrant in the legal area of the Union require that the answer to this question be reserved to the Court of Justice, in its role of eminent interpreter of Union law (Art. 19(1) TEU).

9. - Moreover, "in a framework of constructive and loyal cooperation between the different guarantee systems" (Ordinances No. 182 of 2020 and No. 117 of 2019; Judgment No. 269 of 2017), this Court considers it appropriate to point out the arguments in favor of the extension to the case under consideration today of the principles enshrined by the Court of Justice in the judgments just mentioned.

9.1.- In the Italian legal system, art. 32, first paragraph, of the Constitution protects health as a "fundamental right of the individual", as well as an interest of the community; and there is no doubt, in the constitutional jurisprudence, that this right also belongs to the group of "inviolable human rights" recognized by art. 2 of the Constitution. From the right in question descend, for the public authorities, not only the duty to refrain from harmful conduct, but also the positive obligation to ensure health treatments essential for the protection of personal health. In the Italian legal system, this right is also recognized in its fullness to persons in detention, both if sentenced definitively (most recently, sentence no. 245 of 2020), and if in a state of pre-trial detention.

Precisely in order to protect this right, Italian criminal procedural law excludes, in principle, that the pre-trial detention in prison of a person suffering from a "particularly serious illness, as a result of which his or her health conditions are incompatible with the state of detention and in any case such as not to allow adequate treatment in cases of detention in prison" may be ordered or maintained (art. 275, paragraph 4-bis, code of criminal procedure). This principle is further and more specific in the discipline relative to defendants who are drug or alcohol addicts and who are undergoing therapeutic programs established by art. 89 of Presidential Decree no. 309 of October 9, 1990 (Consolidated Law on Drugs and Alcohol). 309 (Testo unico delle leggi in materia di disciplina degli stupefacenti e sostanze psicotrope, prevenzione, cura e riabilitazione dei relativi stati di tossodipendenza), which also foresees, in principle, the substitution of pre-trial detention with the less afflictive measure of house arrest for those who are undergoing, or intend to undergo, a rehabilitation programme.

9.2.- There is no doubt, moreover, that health is a fundamental human right also from the point of view of EU law.

If art. 3 CDFUE appears to protect health mainly in its dimension of (negative) right not to suffer injury to one's physical integrity, art. 35 CDFUE sanctions the right to obtain medical treatment and commits member states to guarantee a "high level of human health protection". These rights cannot but be recognized in their fullness also with respect to those accused of having committed a crime, as in the case at issue in the main proceedings.

Moreover, if the surrender of the person concerned to the State issuing a European arrest warrant were to expose him or her to a serious risk of serious prejudicial consequences for his or her health, there would also be an infringement of Article 4 of the Charter of Fundamental Rights of the European Union, which enshrines the right of the person - which cannot be balanced against any other interest, given its absolute nature (Aranyosi, paragraph 85) - not to be subjected to inhuman or degrading treatment, in terms that coincide with those deriving from Article 3 ECHR. In this regard, it is worth noting that according to the EDU Court the extradition of a person suffering from serious mental illness to a State in which he or she will likely be held in pre-trial detention, without access to appropriate therapy in relation to his or her condition, would constitute a violation of Article 3 ECHR (judgment of 16 April 2013, Aswat v. United Kingdom; see also - for the statement that it would constitute a violation of Art. 3 ECHR would constitute a violation of Article 3 ECHR, see also - for the assertion that the deportation of an applicant suffering from serious illness, in the absence of adequate assurances by the State of origin on the availability of the necessary treatment on site - Court of Human Rights, judgment of 1 October 2019, Savran v. Denmark, in relation to a person suffering from psychiatric problems, as well as Court of Human Rights, Grand Chamber, judgment of 13 December 2016, Paposhvili v. Belgium, concerning instead a person suffering from serious physical diseases).

The same principle was, moreover, affirmed by the same Court of Justice in a judgment concerning the European asylum discipline, where it was excluded, on the basis of art. The same principle was also affirmed by the Court of Justice in a judgment on the European asylum system, where it ruled out, on the basis of art. 4 CDFUE, that an applicant for international protection suffering, inter alia, from "periodic suicidal tendencies" can be transferred to the State of entry, if the transfer involves "a real and established risk that the person concerned will be subjected to inhuman or degrading treatment" arising not from any systemic deficiencies of the Member State responsible for examining the asylum application, but from the asylum seeker's own individual condition of suffering, which is likely to be "exacerbated by treatment resulting from detention conditions" (judgment of 16 February 2017 in Case C-578/16 PPU, C. K. and Others v. Republika Slovenija, paragraphs 37 and 68).

9.3.- On the other hand, the need to protect the fundamental rights of the requested person must be reconciled with the interest in prosecuting suspected offenders, ascertaining their responsibility and, if found guilty, ensuring the execution of the sentence against them. This interest cannot, on the contrary, be regarded as belonging solely to the State issuing the European arrest warrant, since Framework Decision 2002/584/JHA presupposes a common commitment on the part of the Member States to "combat the impunity of a requested person who is in a territory other than that in which he is suspected of having committed an offence" (Court of Justice, judgment L and P, paragraph 62, and other precedents cited therein).

In this regard, it should also be recalled that, in a recent case in which a Member State had refused to execute a European arrest warrant issued by another Member State in connection with a criminal trial for murder, the ECtHR - finding such refusal unjustified - found that the executing State had violated its procedural obligations under Art. 2 ECHR, to ensure that persons suspected of having committed a murder are tried and, if found guilty, sentenced in the State where the crime was committed (EDU Court, judgment of 9 July 2019, Romeo Castaño v. Belgium).

The albeit indispensable protection of the fundamental right to health of the person requested cannot, in short, lead to solutions involving the systematic impunity of serious crimes.

9.4.- On the other hand, it would not be possible to leave the issuing State with the sole option of proceeding in absentia against the person concerned, as the referring judge seems to suggest. On the one hand, in fact, not all member states allow trials in absentia; on the other hand, even if legally possible, such a solution would end up prejudicing the person concerned, who would be deprived of the possibility of defending himself effectively in a trial potentially destined to result in a sentence enforceable against him.

9.5.- On the other hand, it seems to this Court that, by analogy with what was established by the Court of Justice in the aforementioned judgments (point 8.1. 9.5.- However, it seems to this Court that, by analogy with what was established by the Court of Justice in the aforementioned judgments (point 8.1.), direct dialogue between the judicial authorities of the issuing and executing States could make it possible to find solutions that would make it possible, in the specific case, to put the person concerned on trial in the issuing State, guaranteeing him the full rights of defence, while at the same time avoiding exposing him to the risk of serious damage to his health, for example by placing him in a suitable facility in the issuing State during the trial. Only if, at the end of this discussion, no suitable solution is found within a reasonable period of time should the executing judicial authority be allowed to refuse surrender.

10.- In light of the above, this Court considers it appropriate to suspend the current proceedings and to refer to the Court of Justice of the European Union, pursuant to Article 267 of the Treaty on the Functioning of the European Union (TFEU), the question of whether Article 1(3) of Framework Decision 2002/584/JHA on the European Arrest Warrant, read in the light of Articles 3, 4 and 35 of the Charter of Fundamental Rights of the European Union, should be interpreted in the light of Articles 3, 4 and 35 of the Charter of Fundamental Rights of the European Union. 3, 4 and 35 of the Charter of Fundamental Rights of the European Union (Charter of Fundamental Rights of the European Union), must be interpreted as meaning that, where the executing judicial authority considers that the surrender of a person suffering from a serious, chronic and potentially irreversible disease could expose him to the risk of serious damage to his health, it must ask the issuing judicial authority for information enabling it to rule out the existence of that risk and must refuse to surrender the person if it does not obtain such assurances within a reasonable period of time?

Finally, given that the present case - although it originates in proceedings concerning a person who is not currently subject to any supervision measure - raises questions of interpretation relating to central aspects of the operation of the European arrest warrant, and that the interpretation requested is likely to have general consequences, both for the authorities called upon to cooperate under the European arrest warrant and for the rights of the persons sought, it is requested that this reference for a preliminary ruling be decided under an expedited procedure, in accordance with Article 105 of the Rules of Procedure of the Court of Justice.

on these grounds

THE CONSTITUTIONAL COURT

1. directs that a reference be made to the Court of Justice of the European Union for a preliminary ruling pursuant to Article 267 of the Treaty on the Functioning of the European Union (TFEU):

Whether Article 1(3) of Framework Decision 2002/584/JHA on the European Arrest Warrant, read in the light of Arts. 3, 4 and 35 of the Charter of Fundamental Rights of the European Union (Charter of Fundamental Rights of the European Union), to be interpreted as meaning that, if the executing judicial authority considers that the surrender of a person suffering from a serious, chronic and potentially irreversible illness could place him at risk of serious harm to his health, it must request from the issuing judicial authority information enabling it to rule out the existence of that risk and must refuse to surrender the person if it does not obtain such assurances within a reasonable period of time?

2) requests that the question be decided under an expedited procedure;

3) suspends the present proceedings until the above-mentioned preliminary question has been decided;

4) orders the transmission of a copy of this order, together with the documents relating to the case, to the Registry of the Court of Justice of the European Union.

Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on September 23, 2021.

F.to:

Giancarlo CORAGGIO, President

Francesco VIGANÒ, Editor

Filomena PERRONE, Registrar

Deposited in the Registry on November 18, 2021.

The Registrar

F.to: Filomena PERRONE