France

EAW must contain only the minimum formal information necessary to allow the executing judicial authority to decide promptly on surrender. The description of the offence and of the requested person’s role, including the “degree of participation”, need only be sufficient to enable the executing State to carry out the checks required by law, such as judicial origin, double criminality, ne bis in idem and territoriality. The warrant is not required to provide a detailed evidentiary account of the requested person’s conduct, nor may the executing authority review the evidential basis relied upon by the issuing authority. The expression “degree of participation” does not refer to the intensity of the person’s involvement, but to the different ways in which European legal systems classify participation in criminal associations, complicity, inchoate offences, incitement, attempt or conspiracy. Those distinctions are not decisive under Italian law, which is based on the equal liability of all participants in the offence. Therefore, where the warrant makes clear that the requested person provided essential assistance to the material perpetrator, the information is sufficient for surrender.

The case concerned a prosecution European Arrest Warrant issued by the Judicial Court of Grasse, France, for the execution of a custodial measure in criminal proceedings concerning attempted robbery with violence committed by an organised group and participation in a criminal association. The requested person challenged the surrender order, arguing that the French investigative phase did not sufficiently protect the rights of defence, that the EAW did not adequately describe her role in the alleged offences, and that the Italian court should have assessed the evidential basis of the accusation, including an alibi document produced by the defence. The Italian Supreme Court rejected those arguments, holding that generic allegations about the secrecy of French investigative proceedings did not establish systemic or individualised deficiencies capable of justifying refusal. It further held that, after Legislative Decree No. 10/2021, the executing judicial authority is not required to review the seriousness of the evidence underlying a prosecution EAW, and that the information concerning the facts and the requested person’s degree of participation need only be sufficient to allow the statutory checks and a prompt surrender decision. The Court also rejected the constitutional challenge to Article 17(4) of Law No. 69/2005 and refused to make a preliminary reference to the CJEU, dismissing the appeal and leaving the surrender order in force.

In matters concerning a European Arrest Warrant, for the purposes of the optional ground for refusal of surrender under Article 18-bis(2-bis) of Law No. 69/2005, the concept of stable integration within the national territory requires proof of a genuine, continuous and at least five-year residence or stay in Italy, to be assessed on the basis of the specific indicators set out by the provision, including the lawfulness of the person’s presence, its temporal continuity, the stability of professional, family and personal ties, and the fulfilment of tax and social security obligations. The Court of Appeal is required, on pain of nullity, expressly to assess such indicators. However, where the documentation produced by the defence is insufficient to establish such integration, the Court is under no obligation to carry out ex officio further investigative measures of a merely exploratory nature.

In the context of a European Arrest Warrant concerning offences committed across multiple States, priority must be given to the requirements of judicial cooperation, which serve not only to ensure the effective prosecution of transnational criminal conduct, but also to safeguard the ne bis in idem principle as a fundamental guarantee within the European legal area, as recognised by the Convention implementing the Schengen Agreement of 19 June 1990 and Article 50 of the Charter of Fundamental Rights of the European Union. Accordingly, the execution of the surrender cannot be regarded as contrary to the principle of international lis pendens in the absence of pending criminal proceedings for the same facts in another State, capable of demonstrating a genuine exercise of concurrent jurisdiction. In this context, the executing judicial authority is not required to undertake further inquiries into investigative aspects not apparent from the European Arrest Warrant, given its procedural nature and the fact that investigations in the issuing State may still be ongoing.

The case concerned a European Arrest Warrant issued by the Public Prosecutor at the Paris Judicial Court for the surrender of a Dutch national sought for prosecution in France. The requested person relied on the return guarantee under Article 6 OLW, which the Amsterdam District Court accepted, finding that his social and family ties with the Netherlands were sufficient to require that any future custodial sentence be served in the Netherlands. The main issue concerned detention conditions in Fresnes prison, where the requested person was likely to be held after surrender. Relying on recent CPT findings, the Court held that detainees in Fresnes faced a general real risk of inhuman or degrading treatment due to overcrowding, poor material conditions, a non-functioning intercom system, and inadequate healthcare. Since the information provided by the French authorities did not dispel the individual risk for the requested person, the Court stayed the surrender decision and set a 60-day period for further information or changed circumstances.

European Arrest Warrant (EAW): the notion 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 of that State and act independently in the exercise of their functions, provided that judicial review of the decision to issue the warrant is ensured. Moreover, the Court of Justice has clarified that French public prosecutors have the power to assess independently—particularly vis-à-vis the executive—the necessity and proportionality of issuing a European Arrest Warrant, and that they exercise that power objectively, taking into account both incriminating and exculpatory evidence.

Martial law remains in force throughout the territory of Ukraine, and the Ukrainian Government has notified the Council of Europe and the United Nations that it continues to derogate from Ukraine’s obligations under Article 2(3), Articles 9, 14 and 17 of the International Covenant on Civil and Political Rights and Articles 5, 6, 8 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, without prejudice to the fundamental principles of a fair trial and legal protection, including the ne bis in idem principle.The Court found that said derogations were not limited to areas of active conflict. It also highlighted that the Ukrainian government cannot predict which areas might be targeted next and, as a result, might become affected by the derogations. Further, because of the martial law in force, itself dependent on the duration of the war, the temporary detention of the person concerned will depend on an "authorized agent" and its extension will depend on the prosecuting authority, except by decision of a judge or a court. There is no guarantee that the requested individual would benefit from a fair trial within a reasonable time.

The case concerned an extradition request submitted by the French Republic against a person sought for multiple offences connected with:- international drug trafficking;- money laundering;- organized criminal activity;- cross-border financial transfers.French judicial authorities alleged that the requested person participated between 2017 and 2021 in a transnational narcotics and financial-crime organization involving cocaine trafficking and laundering of criminal proceeds between France and foreign jurisdictions.The Kırklareli 2nd Heavy Penal Court found the extradition request admissible under Law No. 6706.The defence appealed, arguing inter alia that:- no sufficiently convincing evidence linked the requested person to the alleged offences;- extradition would disproportionately affect the requested person’s family life and social integration in Türkiye under Article 11(4) of Law No. 6706.The Turkish Court of Cassation partially accepted the appeal. The Court held that:- the extradition request failed to adequately explain the underlying criminal investigations;- the factual allegations concerning where, when, and how the offences were allegedly committed were insufficiently specified;- certified translated evidentiary materials demonstrating the requested person’s connection to the offences had not been provided.The Court further emphasized that extradition admissibility must be separately assessed for each offence forming the basis of the extradition request.Because the lower court failed to individually analyze the extradition conditions for each alleged offence, the judgment was quashed.

On 18 April 2022, the Permanent Representation of Ukraine informed the Secretariat General of the Council of Europe of the impossibility of guaranteeing the full implementation by the Ukrainian side of its obligations under the international treaties concerning international cooperation within the Council of Europe during the period of armed aggression by the Russian Federation against Ukraine and the imposition of martial law on the territory of Ukraine. The list of aforementioned treaties included: the European Convention on Extradition (ETS No. 24), the Additional Protocol to the European Convention on Extradition (ETS No. 86), the Second Additional Protocol to the European Convention on Extradition (ETS No. 209), the Third Additional Protocol to the European Convention on Extradition (ETS No. 212) and the Fourth Additional Protocol to the European Convention on Extradition (ETS No. 212). As a result, the Requesting State was found unable to guarantee that the requested individual would be judged by a court able to ensure a fair trial and the respect of the rights of the defence. Further, the requested individual could face a denial of justice, as a result of the application of the martial law and the ongoing armed conflict, which could profoundly disrupt the judicial system and prevent the progress of proceedings.

Extradition to a State bound by the ECHR cannot be refused on health grounds where: the requesting State provides adequate assurances regarding medical care; and there is no concrete evidence of a real risk of treatment contrary to Articles 2 or 3 ECHR. Mutual trust applies to “first circle” States (such as France), and no specific guarantees are required, even in the presence of serious health conditions, unless a concrete and individualised risk is demonstrated.

European Arrest Warrant (EAW): the provision refers the condition of “lawful” and “effective” residence only to a person who has resided continuously in Italy for at least five years, and not to an Italian citizen. It follows that the optional ground for refusal available in respect of an Italian citizen is not dependent on a positive factual assessment of the existence of his or her “integration” (ties) in the national territory, based on lawful and effective residence or domicile in Italy. This does not, however, exclude that the Court of Appeal—taking into account all the objective and subjective circumstances of the case before it—must assess, on a case-by-case basis, whether or not to invoke the ground for refusal linked to the possession of Italian citizenship by the requested person. In doing so, the Court must consider multiple factors, including: the seriousness of the offence and its sanctioning consequences; its relevance and concrete impact within the framework of inter-jurisdictional cooperation at the European level; the possible transnational nature of the conduct and the involvement of victims; the nature and strength of the person’s personal, family, professional or other ties supporting the request for execution of the sentence in Italy; as well as any other relevant circumstances capable of assessment.

Summary:The Court of Cassation approves the reasoning of the Appeal Court of Chambéry. Martial law remains in force throughout the territory of Ukraine, and the Ukrainian Government has notified the Council of Europe and the United Nations that it continues to derogate from Ukraine’s obligations under Article 2(3), Articles 9, 14 and 17 of the International Covenant on Civil and Political Rights and Articles 5, 6, 8 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, without prejudice to the fundamental principles of a fair trial and legal protection, including the ne bis in idem principle.The Court found that said derogations were not limited to areas of active conflict. It also highlighted that the Ukrainian government cannot predict which areas might be targeted next and, as a result, might become affected by the derogations. Further, because of the martial law in force, itself dependent on the duration of the war, the temporary detention of the person concerned will depend on an "authorized agent" and its extension will depend on the prosecuting authority, except by decision of a judge or a court. There is no guarantee that the requested individual would benefit from a fair trial within a reasonable time.

The proceedings sentencing the requested individual were not adversarial. The requested individual was not present at the appeal hearing regarding his case. He was not represented by a lawyer and did not receive personal service of the judgment.He was also not informed of multiple proceedings conducted between 2011 and 2017. Although the requested individual became aware of the aforementioned decisions in 2017, the last mean of appeal available is before the Court of Cassation which rules on points of law but not on the facts.The extradition request is rejected on optional grounds for refusal.

The fact that the conviction was issued following proceedings held in absentia does not constitute a ground for refusing surrender, where the person concerned deliberately rendered himself unavailable by fleeing abroad, as in the present case, and, in any event, where there exists the possibility to request a new trial or to lodge an appeal against the conviction. French law allows a person convicted in absentia, once he becomes aware of the relevant decision, to request a new trial enabling a full re-examination of the merits of the case and potentially leading to the reform of the original decision; a circumstance which is not disputed in the appeal.

The requested individual allegedly sent a package containing drugs from France to Greece. The judges of the requested State, France, found that the offence occurred on French territory. The decision also highlights the requested individual’s integration in France, where he resided with his family, consisting of his wife and three young children, aged 7, 6 and 3.

The proceedings sentencing the requested individual were not adversarial. The requested individual was present at the first hearing regarding his case and was notified of the adjournment to the hearing at which the judgment was delivered. He did not attend the latter, was not represented by a lawyer, did not receive personal service of the judgment and has no further means of appeal.The extradition request is rejected on optional grounds for refusal.

The proceedings sentencing the requested individual were not adversarial. The requested individual was present at the first hearing regarding his case and was notified of the adjournment to the hearing at which the judgment was delivered. He did not attend the latter, was not represented by a lawyer, did not receive personal service of the judgment and has no further means of appeal.The extradition request is rejected on optional grounds for refusal.