🇮🇹 Italy →

Where there is a potential overlap between the charges forming the basis of a European Arrest Warrant and the provisional charges brought in criminal proceedings pending in Italy, the Court is required to assess the applicability of the optional ground for refusal set out in Article 18-bis of Law No. 69/2005. Under this provision, surrender may be refused where criminal proceedings are pending in Italy in respect of the same facts underlying the European Arrest Warrant. In the case at hand, the Court of Appeal essentially failed to ascertain whether this condition was met, having merely stated that the predicate offences were different, without carrying out any specific assessment in relation to the offence of criminal association. In so doing, it breached Article 18-bis, which—according to settled case law—requires the Court of Appeal, where the request for surrender concerns acts committed in part within the national territory, to verify both the identity of the facts and whether criminal proceedings are already pending in Italy in respect of the conduct underlying the European Arrest Warrant.

European Arrest Warrant (EAW): the provision refers the condition of “lawful” and “effective” residence only to a person who has resided continuously in Italy for at least five years, and not to an Italian citizen. It follows that the optional ground for refusal available in respect of an Italian citizen is not dependent on a positive factual assessment of the existence of his or her “integration” (ties) in the national territory, based on lawful and effective residence or domicile in Italy. This does not, however, exclude that the Court of Appeal—taking into account all the objective and subjective circumstances of the case before it—must assess, on a case-by-case basis, whether or not to invoke the ground for refusal linked to the possession of Italian citizenship by the requested person. In doing so, the Court must consider multiple factors, including: the seriousness of the offence and its sanctioning consequences; its relevance and concrete impact within the framework of inter-jurisdictional cooperation at the European level; the possible transnational nature of the conduct and the involvement of victims; the nature and strength of the person’s personal, family, professional or other ties supporting the request for execution of the sentence in Italy; as well as any other relevant circumstances capable of assessment.

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.

EAW: following the amendments introduced to Article 18-bis of Law No. 69 of 22 April 2005 by Article 18-bis of Decree-Law No. 69 of 13 June 2023, the Court of Appeal, in order to verify the requested person’s stable integration within the national territory as a ground for refusing surrender, is required - on pain of nullity - to indicate the specific statutory indicators and the relevant assessment criteria provided by that provision; accordingly, the failure to assess even one of such indicators amounts to a violation of law, subject to review by the Supreme Court .