Austria

In matters concerning a European Arrest Warrant, the concept of “issuing judicial authority” also includes authorities of a Member State which, although not qualifying as judicial bodies, participate in the administration of criminal justice in that State and act independently in the exercise of their functions, provided that judicial review of the decision to issue the warrant is guaranteed. (Case concerning a prosecution European Arrest Warrant issued by the Austrian Public Prosecutor’s Office and validated, prior to its transmission, by a court). The requested person’s health conditions justify refusal of surrender only in exceptional circumstances, where there are serious and substantiated grounds capable of demonstrating that surrender would expose the person concerned to a real risk of a rapid, significant and irreversible deterioration in his or her health condition, or to a reduction in life expectancy; merely hypothetical allegations or the need for further diagnostic investigations are insufficient.

In the context of a European Arrest Warrant, the requirement of double criminality is satisfied where the conduct is classified as an offence in both legal systems; any differences in the provisions concerning aggravating circumstances are irrelevant, provided that the nature and content of such circumstances do not alter the underlying facts, as are any discretionary assessments relating to possible grounds of non-punishability under domestic law.

In matters concerning the European Arrest Warrant, the requirement of double criminality is satisfied where the underlying conduct constitutes an offence in both legal systems. Any differences relating to aggravating circumstances are irrelevant, provided that the nature and content of such circumstances do not alter the essential elements of the offence. Likewise, discretionary assessments concerning possible grounds of non-punishability under domestic law are immaterial. In line with this principle, the Court held that the conduct of counterfeiting currency is also criminalised under Italian law and punishable by a maximum sentence of no less than twelve months. It therefore correctly excluded that the alleged “grossly crude forgery” could be assessed within its jurisdiction, as such evaluation pertains to the merits of the case and falls within the competence of the Austrian judicial authorities.

From the judgment under appeal it appears that the surrender request of the Austrian judicial authority concerns the same facts, in their historical dimension, as those underlying the previous extradition request submitted by the same authority against the same person. It is unclear whether the renewed surrender request is based on new or different elements compared to those relating to the earlier request already examined by the Italian judicial authority. In such a situation, it is therefore necessary to determine whether the new surrender request is founded on new elements; this assessment must be carried out by the court of merits, which may, where appropriate, also seek additional information and conduct further inquiries from the requesting authority pursuant to Article 16 of Law No. 69/2005.