Austria sought the requested person’s surrender under an execution EAW to enforce the remainder of a two-year custodial sentence for attempted aggravated bodily harm. The Italian Supreme Court held that the executing judicial authority must request individualised information from the issuing State only where objective, reliable, precise and current evidence indicates a serious risk of treatment contrary to Article 4 of the EU Charter or Article 3 ECHR. The material submitted by the defence concerned general staffing deficiencies and a police detention centre used for persons awaiting removal, rather than the prison in which the requested person would serve the sentence, while the latest CPT report did not identify general conditions amounting to inhuman or degrading treatment within the Austrian prison system. The Court therefore found that no further information from the Austrian authorities was required, declared the appeal inadmissible and upheld surrender.

The case concerned a European Arrest Warrant issued by Austria for the prosecution of a Bosnian national for participation in a theft allegedly committed in Austria in 2021. The Court of Appeal of Milan ordered surrender to the Austrian judicial authority. The requested person challenged the decision, arguing that surrender should have been refused because the offence had allegedly been committed partly in Italy, that the EAW lacked sufficient factual detail and indication of the applicable penalty, and that surrender to Austria would breach the rule of speciality because he had previously been surrendered to Italy by Croatia under a separate EAW concerning prison escape. The Italian Supreme Court held that the first two complaints were inadmissible, since the Court of Appeal had found that all statutory requirements were met, that the offence was committed in Austria, that it carried a five-year custodial penalty, and that the EAW contained a sufficient description of the conduct. However, the Court found the speciality complaint well-founded. The requested person had been surrendered by Croatia to Italy on the basis of an Italian EAW, and the Austrian EAW concerned an offence committed before that surrender. As a result, further surrender from Italy to Austria could be ordered only in compliance with the rule of speciality, including prior consent from Croatia, unless one of the statutory exceptions applied. Since the Court of Appeal had not verified whether Croatian consent had been obtained or whether an exception to speciality was applicable, the Supreme Court annulled the surrender decision and remanded the case to a different section of the Court of Appeal of Milan for a new assessment on that point.

The case concerned a European Arrest Warrant issued by the Austrian judicial authorities for the prosecution of a Montenegrin national accused of murder and attempted murder allegedly committed in Vienna. The Court of Appeal of Bologna ordered surrender. The requested person challenged the decision, arguing that the EAW had an improperly investigative purpose and that Austria should instead have used a European Investigation Order; that the Italian court should have verified the existence of a previous extradition request from Montenegro and a Red Notice; that the EAW lacked adequate guarantees in relation to a possible life sentence; that surrender should have been subject to a return guarantee because of his family ties in Italy; and that surrender should have been postponed because of pending Italian criminal proceedings. The Italian Supreme Court rejected the appeal. It held that a prosecution EAW is not limited to investigative purposes and may legitimately be issued to secure the requested person’s presence before the issuing judicial authority and ensure participation in criminal proceedings. By contrast, a European Investigation Order is aimed at acquiring evidence and cannot be used to transfer a person merely for trial attendance. The Court also held that the alleged earlier extradition request from Montenegro did not bar surrender, since no current competing request had been shown. As to the possible life sentence, the EAW expressly stated that Austrian law provides for review of the penalty after twenty years, or access to clemency measures allowing the sentence not to be executed: this was sufficient for the purposes of Article 19 of Law No. 69/2005. The Court further held that the requested person had not established genuine and stable integration in Italy capable of justifying a return guarantee, and that the pending Italian proceedings did not require postponement of surrender. The appeal was therefore dismissed and the surrender order upheld.

As regards precautionary needs in European Arrest Warrant proceedings, the requirements of concreteness and actuality of the risk of flight for the application of coercive measures must be assessed by the judge in light of the specific characteristics and purposes of the surrender procedure, which is aimed at the traditio in vinculis of the requested person, by carrying out a prognostic assessment of the risk that the person may abscond. In the present case, no reasoning was provided as to the need to apply the precautionary measure. The challenged order merely stated, as the basis for the measure, the need to ensure the surrender of the appellant, without referring to any objective and concrete elements capable of supporting a precautionary prognosis, which in fact was not even formulated. Accordingly, in the complete absence of any indication in this regard, the contested order must be annulled without referral, with a declaration that the precautionary measures applied to the appellant have lost their effect.

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.