The case concerned a European Arrest Warrant issued by the Romanian judicial authorities for the surrender of a Romanian national convicted, by a non-final judgment, of drug-related offences. The Court of Appeal of Naples ordered surrender, rejecting the defence objection based on the risk of inhuman or degrading treatment in Romanian detention. The requested person argued that the Court of Appeal had failed to properly assess several reliable sources, including statements from directors of Romanian penitentiary institutions, showing overcrowding and the lack of the minimum three square metres of personal space, excluding fixed furniture. The Italian Supreme Court held that the appellate court’s reasoning was merely apparent: it had relied on the general adequacy of the detention regime indicated by Romania, without analytically addressing the defence material that appeared, in abstract terms, capable of contradicting those assurances. The Court stressed that, where relevant defence sources have been duly submitted, the executing court must carry out a full assessment of all available information and, if uncertainty remains, seek supplementary information on the individual detention conditions. By contrast, the Court rejected the argument that surrender was barred because the Romanian conviction was not yet final, holding that the Framework Decision requires enforceability, not finality, of the conviction. The judgment was therefore annulled with remand for a new assessment of detention conditions.

After obtaining information or assurances concerning detention conditions, the Court cannot simply reproduce the indications provided by the issuing authority without carrying out an actual assessment of the defence submissions challenging the reliability or adequacy of the information transmitted by the requesting State.

EAW and risk of inhuman treatment: if the lawyer of the sought person files reliable and specific sources concerning shortcomings in the current prison system of the requesting State (Romania), it becomes necessary to assess the individualised detention conditions and such an assessment cannot be excluded ab initio. Indeed, notwithstanding a trend of progressive improvement, international authorities continue to report widespread deficiencies in the Romanian penitentiary system.

The judgment, while granting the surrender request on the basis of an EAW issued for the enforcement of a custodial sentence, must indicate the extent of the sentence to be served, while leaving to the sentencing judicial authority the task of recalculating the penalty. In the case of an EAW issued for the enforcement of a conviction relating to multiple offences, compliance with the minimum threshold of the sentence (not less than four months), as provided by Article 7(4) of Law No. 69 of 22 April 2005, must be assessed with reference to the overall sentence imposed, and not to the sentence applied to each individual offence. The judgment must therefore be quashed, so that the Court of Appeal may remedy the identified shortcomings, if necessary by initiating further communication with the issuing judicial authority, specifically aimed at obtaining at least the transmission of the judgment — not for the purpose of recognition and enforcement in Italy (which that State has declared not to allow), but in order to determine the enforceable title and the duration of the sentence to be executed.

The burden on the requested person to submit elements and circumstances capable of substantiating the risk of being subjected to inhuman or degrading treatment may also be discharged at the appellate stage before the Court of Cassation. This is because such materials consist of reliable international sources and information in the public domain, which may be directly assessed by the appellate court.