→ 🇵🇹 Portugal

Portugal sought the requested person’s surrender under an execution EAW to serve an eighteen-month custodial sentence. The District Court of Amsterdam reiterated that detention in the Lisbon, Caxias and Setúbal prisons presents a general real risk of inhuman or degrading treatment contrary to Article 4 of the EU Charter. The Portuguese authorities provided an individual assurance that the requested person would be transferred to a different prison and would not be detained in any of those three establishments. The Court considered the assurance sufficient to exclude an individual risk, found that the detention conditions did not prevent surrender and authorised the requested person’s surrender to Portugal.

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.

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.