🇮🇹 Italy → 🇫🇷 France

France sought the requested person’s surrender under an execution EAW to enforce a one-year custodial sentence imposed for several theft offences committed in 2021. The appellant argued that the warrant did not sufficiently describe his degree of participation and that he had previously spent eight months in pre-trial detention in France for the same conduct. The Italian Supreme Court held that, before surrender, the EAW need only contain information on the nature and legal classification of the offence, the circumstances, time and place of its commission, and the requested person’s role; the reference to the “degree of participation” does not require a detailed assessment of the intensity of the person’s involvement. It also rejected the previous-detention argument because the appellant had not identified the relevant facts and the full one-year sentence remained to be served, and therefore dismissed the appeal and upheld surrender.

The case concerned a prosecution European Arrest Warrant issued by the French judicial authority for drug-related offences, money laundering and participation in a criminal association. The Court of Appeal of Venice ordered surrender and the requested person appealed to the Italian Supreme Court. He argued that the EAW lacked the information required under Italian law, that the evidence relied on by the French authorities was unusable because it derived from SKY ECC communications, that surrender should be refused because part of the alleged conduct had occurred in Italy, and that he was entitled to the return guarantee due to his long-standing ties with Italy. The Supreme Court rejected the appeal. It held that the EAW sufficiently identified the underlying national arrest warrant, the investigative material, the requested person’s alleged role, the relevant conduct and the applicable penalty; no supplementary information was therefore required. It also held that, after the 2021 reform of the Italian EAW legislation, the absence of serious indications of guilt is no longer a ground for refusing surrender, and that any procedural objections to the acquisition of evidence by the issuing authority must be raised before the French courts. As to territoriality and pending Italian proceedings, the Court held that refusal requires the actual and prior exercise of Italian jurisdiction over the same facts, not merely an abstract possibility or investigative interest. Finally, the Court rejected the return-guarantee argument. For a prosecution EAW, mere factual presence or long-term stay in Italy is insufficient: what matters is residence capable of supporting social reintegration. The Court found that the requested person did not show such residence and that the Court of Appeal had reasonably relied on his lack of lawful employment in Italy and on the commission of profit-driven offences in Italy. Surrender to France was therefore upheld.

EAW must contain only the minimum formal information necessary to allow the executing judicial authority to decide promptly on surrender. The description of the offence and of the requested person’s role, including the “degree of participation”, need only be sufficient to enable the executing State to carry out the checks required by law, such as judicial origin, double criminality, ne bis in idem and territoriality. The warrant is not required to provide a detailed evidentiary account of the requested person’s conduct, nor may the executing authority review the evidential basis relied upon by the issuing authority. The expression “degree of participation” does not refer to the intensity of the person’s involvement, but to the different ways in which European legal systems classify participation in criminal associations, complicity, inchoate offences, incitement, attempt or conspiracy. Those distinctions are not decisive under Italian law, which is based on the equal liability of all participants in the offence. Therefore, where the warrant makes clear that the requested person provided essential assistance to the material perpetrator, the information is sufficient for surrender.

The case concerned a prosecution European Arrest Warrant issued by the Judicial Court of Grasse, France, for the execution of a custodial measure in criminal proceedings concerning attempted robbery with violence committed by an organised group and participation in a criminal association. The requested person challenged the surrender order, arguing that the French investigative phase did not sufficiently protect the rights of defence, that the EAW did not adequately describe her role in the alleged offences, and that the Italian court should have assessed the evidential basis of the accusation, including an alibi document produced by the defence. The Italian Supreme Court rejected those arguments, holding that generic allegations about the secrecy of French investigative proceedings did not establish systemic or individualised deficiencies capable of justifying refusal. It further held that, after Legislative Decree No. 10/2021, the executing judicial authority is not required to review the seriousness of the evidence underlying a prosecution EAW, and that the information concerning the facts and the requested person’s degree of participation need only be sufficient to allow the statutory checks and a prompt surrender decision. The Court also rejected the constitutional challenge to Article 17(4) of Law No. 69/2005 and refused to make a preliminary reference to the CJEU, dismissing the appeal and leaving the surrender order in force.

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 the context of a European Arrest Warrant concerning offences committed across multiple States, priority must be given to the requirements of judicial cooperation, which serve not only to ensure the effective prosecution of transnational criminal conduct, but also to safeguard the ne bis in idem principle as a fundamental guarantee within the European legal area, as recognised by the Convention implementing the Schengen Agreement of 19 June 1990 and Article 50 of the Charter of Fundamental Rights of the European Union. Accordingly, the execution of the surrender cannot be regarded as contrary to the principle of international lis pendens in the absence of pending criminal proceedings for the same facts in another State, capable of demonstrating a genuine exercise of concurrent jurisdiction. In this context, the executing judicial authority is not required to undertake further inquiries into investigative aspects not apparent from the European Arrest Warrant, given its procedural nature and the fact that investigations in the issuing State may still be ongoing.

European Arrest Warrant (EAW): the notion 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 of that State and act independently in the exercise of their functions, provided that judicial review of the decision to issue the warrant is ensured. Moreover, the Court of Justice has clarified that French public prosecutors have the power to assess independently—particularly vis-à-vis the executive—the necessity and proportionality of issuing a European Arrest Warrant, and that they exercise that power objectively, taking into account both incriminating and exculpatory evidence.

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.

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.