The requested person challenged his surrender from Italy to Poland for the execution of a sentence concerning tax fraud and accounting offences, arguing that France had previously refused surrender on nationality grounds and had agreed to recognise and enforce the same Polish judgment. The Supreme Court held that the refusal by the French authorities did not preclude execution of the Polish EAW because there was no evidence that Poland had transmitted the judgment and the certificate required by Framework Decision 2008/909/JHA or that enforcement had actually begun in France. A French summons concerning a hearing on possible alternatives to detention could not be treated either as a valid EAW or as a formal request for surrender. Since Poland had confirmed that the EAW remained valid, while remaining willing to consider enforcement of the sentence in France, the appeal was dismissed and surrender to Poland was upheld.

Poland sought the surrender of a person for the execution of an eight-month custodial sentence imposed for failing to maintain a minor child. The requested person argued that the proceedings had been conducted in absentia and that, owing to his long-term residence and social integration in Italy, the Italian courts should refuse surrender and enforce the sentence domestically. The Court of Cassation held that objections concerning lack of knowledge of the foreign proceedings, raised for the first time on appeal and requiring factual findings, were inadmissible. It further held that refusal under Article 4(6) of Framework Decision 2002/584/JHA requires the issuing State’s consent to transmission and execution of the sentence under Framework Decision 2008/909/JHA; the absence of a positive response from Poland amounted to implicit confirmation that the sentence should be executed in the issuing State, so the appeal was dismissed and surrender confirmed.

The case concerned a prosecution European Arrest Warrant issued by the District Court of Łódź-Śródmieście for participation in a criminal organisation, fraud, theft and impersonation of a public official. The Court of Appeal of Turin ordered surrender. The requested person challenged the decision, arguing that the EAW did not sufficiently describe his role, the specific contribution allegedly made to the offences, and the dates of commission of some of the alleged crimes. The Italian Supreme Court declared the appeal inadmissible. It held that, following the 2021 reform of Law No. 69/2005, the EAW must contain the elements necessary for the executing judicial authority to carry out its review, but it is no longer necessary to attach evidence or a detailed statement of the sources of proof. In this case, the warrant sufficiently described the requested person’s alleged participation in an organised criminal group involved in frauds against elderly persons, including the methods used, the purpose of money transfers and the role of the participants. The Court also held that the indication of a time frame for the offences is sufficient where the facts can be placed chronologically and their essential features are clear. The alleged lack of precise dates did not affect the right of defence. The appeal was therefore declared inadmissible.

In the context of the execution of a European Arrest Warrant, the failure of the issuing State to answer to the Court of Appeal’s request for consent to the enforcement of the sentence in Italian territory must be regarded as a refusal, since the non-transmission of the judgment and the certificate constitutes implicit confirmation of the request for surrender already made through the issuance of the warrant.

EAW: although flight risk may, by its nature, be assessed more broadly than in ordinary proceedings, it must nonetheless exist and cannot dissolve into a form of “inadmissible presumption”. It must display characteristics of concreteness as well as present relevance, and must be supported by specific reasoning grounded in concrete elements drawn from the requested person’s life. Accordingly, the Italian court cannot base pre-trial detention in custody solely on the seriousness of the alleged offence, the severity of the penalties imposed, or the fact that the arrested person—despite being domiciled in Italy and identified by means of an Italian identity card—has not provided elements capable of excluding such risk (all the more so where the offence was committed many years earlier).

As long as the European Arrest Warrant has not been suspended, pursuant to Article 7(2) TEU, in respect of the Member State concerned, the possibility of refusing surrender on the basis of systemic deficiencies affecting the independence of the judiciary in the issuing State must be acknowledged—having regard to the judgment of the Court of Justice (Grand Chamber) of 22 February 2022, joined cases C-562/21 and C-563/21—only where the executing judicial authority establishes, on the basis of the submissions made by the requested person, that there are serious and substantiated grounds for believing that, following surrender, the person would face a real risk of a breach of their fundamental right to be tried by an independent tribunal, as guaranteed by Articles 6 ECHR and 47 of the Charter of Fundamental Rights of the European Union.

In matters of a European arrest warrant, the ground for refusing surrender cannot be based on the “clear risk of a breach of the rule of law” identified in the issuing State, since—so long as the European arrest warrant has not been suspended pursuant to Article 7(2) TEU in respect of that Member State—the possibility of refusing surrender must be recognised only in “exceptional circumstances”, in which the executing judicial authority, following a concrete assessment of the specific case, finds that there are serious and substantiated grounds for believing that the requested person would, after surrender, face a real risk of a violation of his or her fundamental rights. (Case concerning the risk to the rule of law identified by the European Parliament Resolution of 17 September 2020 regarding the lack of judicial independence in Poland).