🇮🇹 Italy →

The requested person challenged an Italian appellate judgment authorising surrender to Bulgaria under a European Arrest Warrant issued for the enforcement of a sentence relating to bodily injury. The appeal relied, first, on the requested person’s alleged family and social integration in Italy and, second, on the risk of inhuman or degrading detention conditions in Bulgaria. The Court held that the five-year period of lawful and continuous residence or stay required by Italian law is a mandatory prerequisite for the optional ground for refusal based on residence, and that the presence of minor children does not by itself preclude surrender where another parent is able to care for them. It further held that the Aranyosi and Căldăraru mechanism is triggered only where the defence produces objective, reliable, specific and duly updated material demonstrating a real risk of inhuman or degrading treatment; generic references to prison overcrowding and an outdated CPT statement were insufficient. The appeal was therefore declared inadmissible and the surrender decision remained in force.

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 requested person challenged an Italian appellate judgment declaring the conditions for extradition to Albania satisfied solely in respect of a drug-trafficking offence allegedly committed in Italy. He argued that surrender for the predicate offence would breach the principle of speciality because extradition had been refused for the related criminal-association charge, that the evidentiary basis was insufficient, that territorial commission gave priority to Italian jurisdiction, and that detention conditions in Albania created a risk of inhuman or degrading treatment. The Supreme Court of Cassation rejected the appeal, holding that the speciality rule prevents prosecution for offences for which extradition was not granted, while the commission in Italy of part of the requested offence does not exclude concurrent foreign jurisdiction. Under Article 7 of the 1957 European Convention on Extradition, territoriality constitutes only an optional ground for refusal, whose application falls within the exclusive competence of the Minister of Justice, and the detention complaint was contradicted by official assurances from the requesting State.

The case concerned a prosecution European Arrest Warrant issued by the Tribunal of Constanza for fraud, based on a Romanian pre-trial detention warrant. The requested person challenged surrender, relying on his alleged long-term residence and work activity in Italy, the alleged uncertainty surrounding the continued validity of the Romanian precautionary title, and the risk of inhuman or degrading detention conditions in Romania. The Italian Supreme Court declared the appeal inadmissible. It held that residence and social rehabilitation are irrelevant in relation to a prosecution EAW, since Article 18-bis of Law No. 69/2005 applies only to EAWs issued for the execution of a custodial sentence or security measure. The Court also found that the Romanian authorities had expressly confirmed both the continuing interest in surrender and the validity of the pre-trial detention warrant. Finally, as to detention conditions, the Court held that no systemic risk currently justified derogation from mutual trust in respect of Romania and that, in any event, the Romanian authorities had provided specific and individualized information on the detention path of the requested person, including pre-trial detention in Constanza and possible sentence execution in Slobozia. The surrender order was therefore upheld.

The case concerns the execution in Italy of an executive European Arrest Warrant issued by the Romanian judicial authorities for the surrender of a person convicted of using a false instrument, the issuing State having consented to the sentence being served in Italy. The Court of Appeal had acknowledged the appellant's settled residence in Italy and the issuing State's consent to transfer of execution, yet refused recognition of the foreign judgment on the ground that, after dissolving the cumulative sentence, the penalty attributable to the surrendered offence (four months) fell below the six-month threshold set for recognition of foreign judgments. The Court of Cassation held that the appellate court had no power to unilaterally re-determine or increase the sentence set by the foreign court, and that the six-month residual-penalty threshold for recognition under Framework Decision 2008/909/JHA cannot be read so as to neutralise the optional refusal ground under Article 4(6) of Framework Decision 2002/584/JHA based on the social rehabilitation interests of a person settled in the executing State, where the issuing State has already consented to domestic execution. The contested judgment was therefore annulled and remanded for a fresh assessment of the refusal ground under Article 18-bis of Law No. 69/2005, applying the principles set out.

The case concerned an execution European Arrest Warrant issued by Romania for the enforcement of a final two-year prison sentence for aggravated theft and driving without a licence. The requested person resisted surrender, arguing that the Italian Court of Appeal had failed to assess documents allegedly showing stable integration in Italy and that refusal of surrender was required under Article 18-bis of Law No. 69/2005 in order to allow the sentence to be served in Italy. The Italian Supreme Court held that, after Legislative Decree No. 10/2021, an appeal against a surrender decision may not be brought on grounds of defective reasoning, including alleged omission or misreading of evidence. In any event, the Court found that the requested person had not even alleged the essential statutory requirement of lawful and effective residence or stay in Italy for at least five years, which applies under the amended Article 18-bis. A post-arrest offer of employment was insufficient to prove such integration and, if anything, confirmed the weakness of the claim. The appeal was therefore declared inadmissible and surrender remained ordered.

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.

In European Arrest Warrant proceedings, the Italian nationality of the requested person excludes the need for the Court of Appeal to assess their settled residence or integration in Italy. Such assessment may be relevant, as an optional ground for refusal under Article 18-bis(2) of Law No. 69/2005, only in the case of an EAW for the execution of a sentence or detention order, namely one based on a foreign judicial decision imposing a custodial sentence or detention measure. Conversely, where the EAW is issued for the purposes of prosecution, surrender of an Italian national may be ordered, provided that surrender is made conditional upon the person’s return to Italy to serve any custodial sentence that may ultimately be imposed, pursuant to Article 19(2) of Law No. 69/2005.

In matters concerning a European Arrest Warrant, for the purposes of the optional ground for refusal of surrender under Article 18-bis(2-bis) of Law No. 69/2005, the concept of stable integration within the national territory requires proof of a genuine, continuous and at least five-year residence or stay in Italy, to be assessed on the basis of the specific indicators set out by the provision, including the lawfulness of the person’s presence, its temporal continuity, the stability of professional, family and personal ties, and the fulfilment of tax and social security obligations. The Court of Appeal is required, on pain of nullity, expressly to assess such indicators. However, where the documentation produced by the defence is insufficient to establish such integration, the Court is under no obligation to carry out ex officio further investigative measures of a merely exploratory nature.

In light of the principle of mutual trust among the Member States of the European Union, it must be presumed that detention conditions in Romania do not give rise to a risk of inhuman or degrading treatment. That presumption may be rebutted—and the executing judicial authority thereby required to seek further information—only where a specific and concrete risk of a breach of fundamental rights is put forward. Accordingly, a request for information is not an automatic consequence of a surrender request, but must be supported by specific elements advanced by the applicant or otherwise known to the Court of Appeal (for example, where serious systemic deficiencies in prison conditions in a given Member State constitute a matter of common knowledge or have been the subject of recent rulings by the supreme courts).

The case concerned a European Arrest Warrant issued by the Dolj Tribunal, Romania, and confirmed by the Court of Appeal of Craiova, for offences of human trafficking and exploitation of prostitution. The requested person opposed surrender, arguing that some of the alleged conduct had been committed in Italy and that surrender could therefore be refused on territoriality grounds. The Italian Supreme Court held that, where the facts underlying a European Arrest Warrant were committed wholly or partly in Italy, the optional ground for refusal based on territoriality applies only if criminal proceedings for the same facts are already pending in Italy. Since no such domestic proceedings were pending, the territoriality objection was rejected. The Court also dismissed the challenge based on detention conditions, noting that the Romanian authorities had identified a different detention facility from the one criticised by the defence and had provided information on available activities and minimum personal space. The appeal was declared inadmissible and the surrender order remained in force.

The executing judicial authority is required only to verify the existence of a valid legal basis for the surrender, and cannot review either the validity of such basis or the merits of any remedies pursued within the legal system of the issuing State. Surrender is therefore lawful where the European Arrest Warrant has been issued on the basis of a conviction that is enforceable but not yet final, since Article 8 of the Framework Decision of 13 June 2002 attaches relevance solely to the enforceability of the judgment, and not to its finality, as an essential condition of the system of cooperation aimed at the surrender of requested persons between EU Member States. Accordingly, the filing of an application seeking leave to appeal out of time is irrelevant for the purposes of surrender, as such application does not, in itself, affect the enforceability of the judgment underlying the European Arrest Warrant.

Criminal records and pending proceedings, being inconsistent with the aim of social and occupational reintegration of the requested person, do not constitute factual elements capable of establishing the existence of a stable and non-temporary territorial integration in the State. The circumstances put forward by the person concerned — who, at the validation hearing, stated that he had been living in Italy for more than twenty years, that he had been cohabiting with his partner and her children for more than two years, and that he worked as a builder and gardener without a contract — amount to mere verbal assertions unsupported by evidence. The information derived from the fingerprint records can at most indicate the individual’s choice to identify the national territory as the center of his criminal activities, but not to prove effective integration, which, insofar as it is relevant for the recognition of the sentence for enforcement in Italy, implies adherence to socially shared values.

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.

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.

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.

Grounds of appeal concerning the assessment of the person’s integration within the territory of the State are inadmissible where, although formally framed as a violation of law, they in fact relate to the reasoning of the decision. Article 22 of Law No. 69 of 22 April 2005 does not allow an appeal to the Court of Cassation against a judgment of the Court of Appeal on a surrender request on the basis of defects in reasoning. In the present case, the ground of appeal—though labelled as an erroneous application of the law—essentially amounts to alleging defects in the reasoning of the contested judgment. The applicant, in fact, challenged aspects relating to the merits of the Court of Appeal’s assessment of his integration in Italy. However, it is not for the Court of Cassation to verify the logical soundness of that assessment, nor to re-examine the documents on file in order to determine whether the evaluation carried out on the merits could lead to different conclusions. In particular, the Court of Appeal clarified—on grounds not open to criticism—that the documentation provided merely demonstrated a very recent presence of the requested person in Italy, considering that the marriage to the person holding the lease of the accommodation had been celebrated in February 2025 and that the declaration only indicated that the person worked at his car wash, without specifying since when. The Court therefore held that there was no evidence of the requested person’s genuine integration in Italy.

EAW: only the existence of criminal proceedings pending in Italy against the requested person may be taken into account by the Court of Appeal within the framework of the grounds for postponement of surrender under Article 24 of Law No. 69 of 2005, and on the basis of an assessment of expediency in the light of the criteria already identified by this Court. The documentation most recently produced by the appellant cannot be taken into consideration, since it postdates the surrender decision and, in any event, the mere filing of a criminal complaint cannot, as a matter of principle, affect the decision on surrender.

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.

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.

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.

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, when deciding on a refusal of surrender based on the requested person’s stable integration within the national territory, the Court of Appeal is required—on pain of nullity—to specify in a detailed and reasoned manner the relevant statutory indicators and the corresponding assessment criteria. Accordingly, the failure to assess even one of these indicators constitutes a violation of law subject to review by the Court of Cassation.

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 .

The fact that the conviction was issued following proceedings held in absentia does not constitute a ground for refusing surrender, where the person concerned deliberately rendered himself unavailable by fleeing abroad, as in the present case, and, in any event, where there exists the possibility to request a new trial or to lodge an appeal against the conviction. French law allows a person convicted in absentia, once he becomes aware of the relevant decision, to request a new trial enabling a full re-examination of the merits of the case and potentially leading to the reform of the original decision; a circumstance which is not disputed in the appeal.