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.

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.

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.