The requested person, who was sixteen years old at the time of the alleged offence, challenged an Italian decision ordering surrender to Germany under a prosecution European Arrest Warrant. The Court held that, following the 2021 reform of Italian EAW legislation, the former mandatory refusal ground concerning the existence of a differentiated punitive and detention regime for minors no longer applies, and that protection of minors in EU Member States is presumed in light of EU law unless the defence produces concrete, specific and updated evidence to the contrary. It further held that the EAW need not specify the minimum applicable sentence, the precise detention facility, the duration of pre-trial detention or other details of the foreign custodial regime where those omissions do not affect the statutory requirements for surrender. The appeal was declared inadmissible, while the surrender remained subject to the condition that any custodial sentence ultimately imposed be served in Italy.

The Italian Court of Appeal ordered the surrender of the requested person to Germany pursuant to a prosecution European Arrest Warrant concerning aggravated theft offences. The appellant argued, inter alia, that the pending challenge against the rejection of his application for international protection triggered the principle of non-refoulement, that his social and occupational ties in Italy justified execution of any future sentence in Italy, and that double criminality had not been adequately established. The Supreme Court held that non-refoulement protection based on refugee status did not prevent surrender because refugee status and subsidiary protection had both been expressly denied, notwithstanding the fact that the refusal was under appeal; it also found that the five-year residence requirement under Italian EAW law was not met. The Court further reiterated that double criminality does not require identical criminal offences in the two legal systems, but only that the conduct be punishable in both, and declared the appeal inadmissible.

The requested person was subject to two prosecutorial European Arrest Warrants issued by Germany and Austria for organised aggravated thefts, while criminal proceedings and the execution of a residual sentence were pending in Italy. The Italian Supreme Court held that the decision whether to defer surrender under Article 24 of Law No. 69/2005 requires a comparative assessment of the interests involved, taking into account factors such as the seriousness and date of the offences, the person’s custodial status, the stage and complexity of the proceedings, any final judgment, the sentence still to be served and the likely manner of its execution. It found that the Court of Appeal had adequately explained why the seriousness, organised nature and transnational dimension of the offences underlying the German and Austrian warrants outweighed the Italian interest in the domestic proceedings and sentence enforcement. The fact that the requested person was detained in Italy did not make deferral necessary, since flight risk is addressed through precautionary measures whereas the purpose of a prosecutorial EAW is to secure the person’s presence for trial.

The case concerned a prosecution European Arrest Warrant issued by the German judicial authority for burglary committed inside a private dwelling. The Court of Appeal of Perugia ordered surrender and the requested person appealed to the Italian Supreme Court. He argued, first, that the maximum time limits for precautionary measures under Article 22-bis of Law No. 69/2005 had expired, because the relevant period should have been calculated from the date of arrest. Secondly, he argued that the Court of Appeal should have requested supplementary information on the evidentiary basis of the warrant, in order to verify the legal classification of the facts and the double criminality requirement. The Supreme Court declared the appeal inadmissible. As to the time-limit argument, it held that the judgment under appeal concerned the conditions for surrender, not the requested person’s liberty status. In any event, the expiry of precautionary-measure time limits, or the delivery of the surrender decision after the statutory time limits, does not affect the validity of the surrender decision itself. As to the evidentiary argument, the Court recalled that, following Legislative Decree No. 10/2021, the absence of serious indications of guilt is no longer a ground for refusing surrender under the Italian EAW legislation. Effective judicial protection before surrender is ensured by access to the information contained in the EAW, including the nature and legal classification of the offence, the circumstances, time and place of commission, and the requested person’s degree of participation. Since the requested person did not allege that the EAW lacked such information, any challenge to the evidentiary basis or legal classification of the offence had to be raised before the judicial authority of the issuing State. The appeal was therefore declared inadmissible and the surrender decision remained in force

The case concerned a European Arrest Warrant issued by the District Court of Munich, at the request of the European Public Prosecutor’s Office in Munich, for the prosecution of offences relating to an alleged transnational VAT fraud scheme involving missing trader companies. The Court of Appeal of Milan ordered surrender, subject to the condition that, in the event of conviction, the requested person be returned to Italy to serve any custodial sentence. The requested person challenged the decision, arguing that surrender should have been refused because an EPPO proceeding concerning the same facts was already pending before the Naples office, creating a risk of parallel proceedings and ne bis in idem. The Italian Supreme Court rejected the appeal. It held that the optional territoriality refusal ground requires a current and concrete conflict of jurisdiction, not merely a potential overlap. In any event, where the EAW is issued within EPPO proceedings, coordination issues between delegated European prosecutors operating in different Member States must be resolved within the EPPO framework and do not fall to the Italian executing court. The Italian court must only verify that the EAW comes from a judicial authority of another Member State and satisfies the statutory requirements. In the present case, the Naples EPPO office had clarified that its investigation concerned only the year 2016 and was at an initial stage, while the German EAW covered a broader factual context from January 2016 to July 2024, involving more transactions and companies. Any possible overlap was therefore limited and insufficient to justify refusal, especially since the Italian authority had not expressed an intention to exercise its punitive power over the facts covered by the EAW. The Court also rejected the objection that the EAW was too generic, holding that it adequately described the associative context, the requested person’s role, the timeframe, the applicable offences and penalties. The appeal was dismissed and the surrender order upheld.

The case concerned a prosecution European Arrest Warrant issued by the Hamburg District Court for attempted aggravated theft in conspiracy. The requested person challenged surrender, arguing that the EAW did not contain sufficient identifying information and that the German authorities should have used less intrusive instruments, such as a European Investigation Order, if the real purpose was investigative. The Italian Supreme Court dismissed the appeal. It held that, after the 2021 reform of Law No. 69/2005, the EAW must indicate the identity and nationality of the requested person, but further identification data, fingerprints or DNA are not required unless there is a concrete doubt as to identity. In this case, the correspondence of personal details was sufficient and no real doubt emerged. As to the purpose of the warrant, the Court held that a prosecution EAW is legitimate where the person is sought for pending criminal proceedings, including appearance before the judicial authority or trial. It is not for the executing State to review the issuing authority’s assessment of the need for the person’s presence. An EIO may be used for evidence-gathering purposes, but it cannot replace an EAW where the requested person must be transferred for criminal proceedings rather than merely heard for evidentiary purposes. Since there was no indication that the warrant had exclusively investigative aims detached from prosecution, surrender was upheld.

The case concerned a prosecution European Arrest Warrant issued by the District Court of Rostock, Germany, in criminal proceedings for breach of instructions connected with German “conduct supervision”, a measure imposed after the requested person had fully served a previous prison sentence. The requested person argued that, given his alleged integration in Italy, the measure and any future sentence should be executed in Italy, and that the custodial measure was disproportionate. The Italian Supreme Court rejected the argument based on residence, noting that no five-year lawful and effective residence in Italy had been alleged and that, in any event, the case concerned a prosecution EAW, for which integration may at most lead to the return condition under Article 19(2) of Law No. 69/2005. However, the Court held that the Court of Appeal had failed to assess the legal nature of the German “conduct supervision” measure, which was essential to verify double criminality. Depending on its classification, the breach could be comparable under Italian law to violation of an ancillary penalty, breach of special preventive supervision, or mere breach of a security measure such as supervised liberty, the latter not amounting to a separate criminal offence in Italy. Since that assessment had not been carried out, the judgment was annulled and the case remitted for supplementary information and a new decision.

The case concerned a prosecution European Arrest Warrant issued by the District Court of Heidelberg, Germany, for the execution of a national arrest warrant relating to aggravated theft and fraud. The requested person challenged the surrender decision on the ground that the EAW did not expressly indicate the minimum and maximum penalties applicable under German law, as required by Article 6 of Law No. 69/2005, and argued that the Italian court should at least have requested supplementary information from the issuing authority. The Italian Supreme Court held that the omission of the penalty range in a prosecution EAW does not itself constitute a ground for refusal, since the grounds for refusal are exhaustively listed in Articles 18 and 18-bis of Law No. 69/2005. The Court further held that the EAW must be unequivocal but not necessarily explicit where the missing information can be inferred without uncertainty from the statutory provisions indicated in the warrant. Since the requested person had not shown any specific prejudice to his defence rights or any concrete risk of disproportionate or inhuman punishment, the appeal was dismissed and surrender remained ordered.

The case concerned a prosecution European Arrest Warrant issued by the District Court of Hechingen, Germany, for several alleged offences of computer fraud committed in Germany, including in an organised form. The requested person challenged the surrender decision, arguing that the Italian Court of Appeal had failed to examine possible Italian jurisdiction over the facts and the related optional refusal ground, and had also failed to rule on his request to serve any future custodial sentence in Italy. The Italian Supreme Court held that the territorial-jurisdiction objection under Article 18-bis of Law No. 69/2005 was inadmissible because it had not been raised before the Court of Appeal and, in any event, required proof that Italian jurisdiction had already been effectively exercised over the same offence when the EAW was received. However, the Court found that the Court of Appeal had omitted to rule on the requested person’s express request, as an Italian citizen, that any sentence imposed in Germany be served in Italy under Article 19(2) of Law No. 69/2005. Since formal Italian citizenship was sufficient and no further factual assessment was required, the Supreme Court directly made surrender conditional on the requested person’s return to Italy to serve any sentence imposed in Germany, dismissing the appeal in all other respects.

The discretion granted to the Court of Appeal to postpone surrender in order to allow the requested person to stand trial in Italy for an offence other than that covered by the European Arrest Warrant necessarily entails an assessment of expediency. That assessment must take into account not only the seriousness of the offences charged and the date on which they were allegedly committed, but also the stage of the Italian proceedings and other relevant factors, including the person’s custodial status, the complexity of the proceedings, the procedural phase or level of jurisdiction reached, whether the proceedings have been finally determined by a res judicata judgment, and the length of any sentence to be served in Italy. These criteria must be assessed globally and in a reasoned manner, through an adequate and relevant statement of reasons. The evaluation is discretionary in nature and is based on the criteria arising from Article 20 of Law No. 69 of 2005. Where supported by adequate and pertinent reasoning, it is not subject to review by the Court of Cassation. In the present case, however, the judgment was entirely silent as to the appropriateness of postponing surrender, since it failed to carry out any comparative assessment of the procedural interests of the two Member States.

In proceedings concerning a European Arrest Warrant issued by Germany for VAT evasion offences, the Supreme Court of Cassation held that the alleged lack of jurisdiction of the ordinary German public prosecutor, in favour of the European Public Prosecutor’s Office (EPPO), does not constitute a ground for refusal of surrender under Italian law. The Court clarified that EPPO competence under Regulation 2017/1939 is concurrent rather than exclusive and that disputes concerning the allocation of investigative powers between EPPO and national prosecuting authorities fall within the legal system of the issuing State and cannot be reviewed by the executing judicial authority. The Court further stated that the executing State may assess procedural violations allegedly committed in the issuing State only where they result in a breach of fundamental constitutional principles or inalienable rights protected under Article 2 of Law No. 69/2005, the TEU, or the ECHR. It also reiterated that, in tax-related European Arrest Warrant proceedings, the requirement of double criminality is mitigated and does not require perfect correspondence between the foreign and domestic offences, nor identical punishment thresholds or sanctioning regimes, provided that the conduct remains criminally punishable under both legal systems.

The case concerned a German request for extradition from Italy for prosecution in relation to drug-trafficking offences allegedly committed before 7 August 2002. Although the German authorities relied on a European Arrest Warrant, the Court of Appeal of Bologna held that the ordinary extradition regime applied because the facts pre-dated the temporal scope of the Italian EAW legislation. The defence objected that a previous German request concerning the same person, the same facts and the same underlying arrest warrant had already been the subject of extradition proceedings, which had ended after Germany withdrew the request. The Court accepted that objection. Relying on Article 707 of the Italian Code of Criminal Procedure and on Supreme Court case law, it held that a previous judgment contrary to extradition precludes a later favourable decision on a renewed request by the same State for the same historical facts, unless the new request is based on elements not previously assessed. The Court found that the renewed German request was based on the same facts and the same charges, was filed more than five years after the earlier proceedings and more than twenty years after the alleged conduct, and did not rely on any new factual elements. The previous withdrawal therefore produced a preclusive effect preventing a new favourable extradition judgment. The Court refused the request and revoked the coercive measure in place.

The surrender of the requested person to the requesting State renders inadmissible, for supervening lack of interest, any appeal lodged by that person against the order rejecting the request for revocation or for a declaration of ineffectiveness of the coercive precautionary measure imposed in the same proceedings. As regards the relationship with unlawful detention, an interest in challenging a personal precautionary measure after its termination can be recognised only where a specific issue is expressly raised as to whether the conditions for that remedy are met. Accordingly, such a challenge cannot be pursued in relation to a precautionary measure in respect of which the finding that the conditions for surrender were satisfied — a finding not contested on appeal — has been embodied in an order that has since become final.

For the purposes of double criminality under the European Arrest Warrant, it is not necessary that the abstract legal definition of the offence in the foreign legal system exactly corresponds to a provision under Italian law. It is sufficient that the concrete conduct is punishable as a criminal offence in both jurisdictions, regardless of any differences in the legal classification, the elements required for the offence, or the applicable penalties. This requirement was met in the present case, as the Court of Appeal found that the conduct consisting of the sale of goods bearing counterfeit trademarks without a valid legal basis is also criminally punishable under Italian law. Accordingly, the Court correctly held that the objections raised could not be upheld, since any assessment of the factual circumstances falls outside its scope of review and pertains instead to the merits of the proceedings before the German judicial authority.

The Court of Appeal may rely on the guarantees provided by the issuing State, which clarified that the requested person: (a) will receive medical assistance within the penitentiary facility; (b) may, if necessary, be permanently admitted to the prison infirmary; (c) will be provided with pharmacological treatment and psychological support; and (d) may, if necessary, be placed in a cell under video surveillance. The Court also drew the requesting State’s attention to the need to put in place effective safeguards and monitoring measures to protect the requested person’s health, including by considering the possibility of alternatives to custodial detention.

In proceedings concerning a European Arrest Warrant, there is no requirement to observe a minimum notice period for informing defence counsel of the hearing for the validation of the arrest, as the need to ensure counsel’s participation must be balanced against the urgency inherent in such proceedings. There is, however, an obligation to provide a translation of the reasoning of the Court of Appeal’s surrender decision into a language known to the requested person only where the person—being a foreign-language speaker who does not understand Italian—makes an express and reasoned request to that effect. In such a case, the time limits for lodging an appeal run from the moment the translated decision is made available to the person concerned.

EAW and risk of removal of a mother of a minor child: as clarified by the Court of Justice, refusal of surrender cannot be based solely on the fact that the requested person is a mother of young children living with her. The best interests of the child must be protected, but they do not automatically preclude the execution of an EAW. Nor is it necessary to raise a question of constitutionality in Italy, since the Constitutional Court has already clearly held that the fundamental rights to which the Framework Decision is subject are those recognised under European Union law and, consequently, by all Member States when implementing EU law. It follows that the judicial authorities of the executing State are precluded from refusing surrender outside the cases required or permitted by the Framework Decision, on the basis of purely national standards of protection of fundamental rights that are not shared at the European level.

The issue raised concerns the absence, under German law, of a precautionary measure equivalent to house arrest, which—according to the defence—would be proportionate to the seriousness of the alleged offence and to the personality of the offender. It follows that Pr.Gj. would be unjustifiably subjected, solely for the purpose of enabling the conduct of the trial, to a restriction of personal liberty more severe than necessary, in breach of the principle of proportionality enshrined in Article 49 of the Charter of Fundamental Rights. Judicial review cannot extend to questioning the system of precautionary measures provided for by another Member State and their regulatory framework, since Framework Decision 2002/584/JHA is itself based on relations of mutual trust and cooperation between Member States. The Court is not unaware that, according to a broad interpretation of the expression “pre-trial detention” contained in Framework Decision 2009/829/JHA (as an instrument for the execution in Italy of a graduated measure such as house arrest), house arrest could fall within the scope of that instrument. However, it considers preferable to adhere to the line of case law according to which that body of provisions refers exclusively to non-custodial measures. A different interpretation would, in fact, lead to an improper overlap between those provisions and the regulatory framework governing active surrender proceedings under the European Arrest Warrant, which unquestionably applies—pursuant to Article 28 of Law No. 69 of 22 April 2005—where the measure to be executed is that of house arrest.

Proceedings before the Court of Appeal, and not only those before the Court of Cassation, are conducted in chamber pursuant to Article 127 of the Italian Code of Criminal Procedure. Therefore, since the European Arrest Warrant was received four days before the in camera hearing, the party was entitled to request an adjournment of the hearing in order to file a defence brief in compliance with the statutory time limits, and such request was timely submitted in order to examine the documentation received. The refusal to grant time for the defence may give rise to an intermediate nullity, as it affects the assistance of the accused, provided that— as in the present case — the objection was raised in a timely manner.

Where the request for surrender concerns acts committed in part within the territory of the State, the mandatory ground for refusal of surrender arises only where there is not merely a potential interest of the domestic legal system in asserting jurisdiction, but an objective situation—demonstrated by the existence of investigations into the facts underlying the European Arrest Warrant—indicative of the State’s actual intention to exercise its jurisdiction. Accordingly, the ground for refusal applies only insofar as criminal proceedings for the same facts are already pending before the Italian judicial authority.

Postponement of surrender: as regards the possibility for the Court of Appeal to order that the surrender of the requested person be postponed in order to allow that person to be subject to criminal proceedings in Italy (or to serve there a sentence imposed for an offence other than that underlying the European Arrest Warrant), the use of the verb “may” (“…the Court may order…”) indicates that any domestic interests of justice—unlike what is provided in extradition proceedings under Article 709 of the Italian Code of Criminal Procedure—do not mandatorily require the postponement of surrender, but rather call for an assessment of appropriateness by the Court. Accordingly, since this is a merely interim measure, based on a discretionary assessment aimed at satisfying domestic justice needs to which the requested person is subject, it is necessary that—where the Court of Appeal, acting as the executing judicial authority, decides to prioritise domestic justice interests by ordering the postponement of surrender—it must specify the act or event that will bring the need for postponement to an end.

EAW: changes to the charge underlying the request for surrender are certainly permissible, as they fall within the normal development of the criminal proceedings pending before the judicial authority of the issuing State, provided that they occur prior to the decision of the Court of Appeal and are based on an emendatio libelli within the scope of the original charge underlying the European Arrest Warrant.

EAW: in accordance with the interpretation provided by the Court of Justice of the European Union, in proceedings for the extension of surrender to the issuing State, the principle of adversarial proceedings must be strictly observed, ensuring that the surrendered person is given the opportunity to express opposition, through their defence counsel, in a hearing.

Germany sought the onward surrender of a person who had previously been surrendered to Italy by the Netherlands and had not waived the protection afforded by the principle of speciality. The consent required under Article 28(3) of Framework Decision 2002/584/JHA had been issued by the Amsterdam Public Prosecutor. Following a remand by the Italian Court of Cassation, the Court established that Dutch law did not provide for any judicial appeal or review against the prosecutor’s consent. It therefore held that the consent did not satisfy the requirements governing onward surrender, refused surrender to Germany and revoked the custodial measure imposed for the execution of the EAW.