The case concerned a prosecution European Arrest Warrant issued by the Portuguese judicial authority for offences including criminal association, money laundering, aggravated fraud, computer-related falsification and aggravated document falsification. The Court of Appeal of Catanzaro ordered surrender. The requested person challenged the decision, arguing that his alleged residence in Italy should have been assessed for the purposes of refusal or future execution of any sentence in Italy, that the EAW lacked sufficient factual detail and guarantees in case of trial in absentia, and that the Court had failed to examine Portuguese detention conditions. The Italian Supreme Court dismissed the appeal. It held that, although Article 19 of Law No. 69/2005 provides for a return guarantee in prosecution EAWs, the Court of Appeal had adequately found that the requested person was neither an Italian citizen nor a person lawfully and effectively resident in Italy for at least five continuous years. Mere family ties, lack of criminal record, attempts to regularize stay, or possible employment in Italy were insufficient to establish genuine integration. The Court also held that the EAW contained an adequate description of the alleged conduct and the requested person’s participation in a criminal group operating since 2023. Finally, the objection concerning Portuguese detention conditions was rejected as generic and exploratory, since no concrete, specific or updated sources had been produced to show a real risk of inhuman or degrading treatment. The surrender order was therefore upheld.

Article 18-bis, paragraph 2-bis, cited above, whose violation is alleged by the appellant, must be read in conjunction with paragraph 2 of the same provision, according to which the criteria for assessing the lawful and effective residence or domicile in Italy of the requested person concern a foreign national who “lawfully and effectively resides or is domiciled continuously for at least five years in the territory of the Italian State.” Therefore, in the case of a person who, by his own admission, has been residing in Italy for no more than one year and six months, it is indisputable that the invoked provision cannot apply.

For the configurability of the ground for refusal of surrender based on the hypothesis of “international lis pendens”, it is necessary that the criminal fact forming the subject of the European arrest warrant corresponds to the same historical event for which proceedings are pending in Italy, taking into account the spatial, temporal and modal profiles of the facts, regardless of the legal classification given to them by the different authorities. The Court of Appeal of Rome did not make proper application of these principles, as it apodictically affirmed the diversity of the fact underlying the European arrest warrant from that still pending before the Public Prosecutor’s Office of Reggio Calabria and which has been the subject of a request for dismissal. The Court of Appeal, in fact, did not carry out any specific comparison between the alleged conducts in the different proceedings in their historical-naturalistic elements and with regard to the circumstances of time, place and person, as described in the measures in the case file. Where the fact is the same, the Court of Appeal must also give reasons, in light of the optional nature of the ground for refusal under Article 18-bis, paragraph 1, of Law No. 69 of 2005, as to the reasons which, in the specific case, may justify the refusal of surrender or its execution.

In the context of a European Arrest Warrant, the failure to attach to the warrant certain documents (judgement) enabling an understanding of the facts attributed to the requested person does not constitute a ground for refusing surrender, provided that the issuing State has nonetheless supplied the Italian judicial authority with all the elements necessary to carry out its review. Therefore, where a detailed and clarifying summary of the facts underlying the proceedings has been obtained, no defect arises.

In matters of the European arrest warrant, it must be excluded that the ground for refusal set out in Article 18(e) of Law No. 69 of 22 April 2005 applies—namely, the obligation to refuse surrender where the law of the issuing Member State does not provide maximum limits for pre-trial detention—in relation to a warrant issued by the judicial authority of Portugal, since its procedural system establishes defined time limits for pre-trial detention, up to the final judgment, depending on the nature of the offence and the stage of the proceedings.