🇮🇹 Italy → 🇦🇹 Austria

Austria sought the requested person’s surrender under an execution EAW to enforce the remainder of a two-year custodial sentence for attempted aggravated bodily harm. The Italian Supreme Court held that the executing judicial authority must request individualised information from the issuing State only where objective, reliable, precise and current evidence indicates a serious risk of treatment contrary to Article 4 of the EU Charter or Article 3 ECHR. The material submitted by the defence concerned general staffing deficiencies and a police detention centre used for persons awaiting removal, rather than the prison in which the requested person would serve the sentence, while the latest CPT report did not identify general conditions amounting to inhuman or degrading treatment within the Austrian prison system. The Court therefore found that no further information from the Austrian authorities was required, declared the appeal inadmissible and upheld surrender.

The case concerned a European Arrest Warrant issued by the Austrian judicial authorities for the prosecution of a Montenegrin national accused of murder and attempted murder allegedly committed in Vienna. The Court of Appeal of Bologna ordered surrender. The requested person challenged the decision, arguing that the EAW had an improperly investigative purpose and that Austria should instead have used a European Investigation Order; that the Italian court should have verified the existence of a previous extradition request from Montenegro and a Red Notice; that the EAW lacked adequate guarantees in relation to a possible life sentence; that surrender should have been subject to a return guarantee because of his family ties in Italy; and that surrender should have been postponed because of pending Italian criminal proceedings. The Italian Supreme Court rejected the appeal. It held that a prosecution EAW is not limited to investigative purposes and may legitimately be issued to secure the requested person’s presence before the issuing judicial authority and ensure participation in criminal proceedings. By contrast, a European Investigation Order is aimed at acquiring evidence and cannot be used to transfer a person merely for trial attendance. The Court also held that the alleged earlier extradition request from Montenegro did not bar surrender, since no current competing request had been shown. As to the possible life sentence, the EAW expressly stated that Austrian law provides for review of the penalty after twenty years, or access to clemency measures allowing the sentence not to be executed: this was sufficient for the purposes of Article 19 of Law No. 69/2005. The Court further held that the requested person had not established genuine and stable integration in Italy capable of justifying a return guarantee, and that the pending Italian proceedings did not require postponement of surrender. The appeal was therefore dismissed and the surrender order upheld.

In matters concerning a European Arrest Warrant, the concept of “issuing judicial authority” also includes authorities of a Member State which, although not qualifying as judicial bodies, participate in the administration of criminal justice in that State and act independently in the exercise of their functions, provided that judicial review of the decision to issue the warrant is guaranteed. (Case concerning a prosecution European Arrest Warrant issued by the Austrian Public Prosecutor’s Office and validated, prior to its transmission, by a court). The requested person’s health conditions justify refusal of surrender only in exceptional circumstances, where there are serious and substantiated grounds capable of demonstrating that surrender would expose the person concerned to a real risk of a rapid, significant and irreversible deterioration in his or her health condition, or to a reduction in life expectancy; merely hypothetical allegations or the need for further diagnostic investigations are insufficient.

In the context of a European Arrest Warrant, the requirement of double criminality is satisfied where the conduct is classified as an offence in both legal systems; any differences in the provisions concerning aggravating circumstances are irrelevant, provided that the nature and content of such circumstances do not alter the underlying facts, as are any discretionary assessments relating to possible grounds of non-punishability under domestic law.

In matters concerning the European Arrest Warrant, the requirement of double criminality is satisfied where the underlying conduct constitutes an offence in both legal systems. Any differences relating to aggravating circumstances are irrelevant, provided that the nature and content of such circumstances do not alter the essential elements of the offence. Likewise, discretionary assessments concerning possible grounds of non-punishability under domestic law are immaterial. In line with this principle, the Court held that the conduct of counterfeiting currency is also criminalised under Italian law and punishable by a maximum sentence of no less than twelve months. It therefore correctly excluded that the alleged “grossly crude forgery” could be assessed within its jurisdiction, as such evaluation pertains to the merits of the case and falls within the competence of the Austrian judicial authorities.