France

The Italian Supreme Court of Cassation dismissed an appeal against surrender to France under an execution European Arrest Warrant concerning a five-year prison sentence for participation in a criminal association facilitating unlawful immigration and document falsification. The requested person relied on a pending application for international protection in Italy, alleged risks connected with conditions in Algeria, his private and social ties in Italy, and his status as an injured party in separate Italian criminal proceedings. The Court held that international or subsidiary protection does not in itself prevent surrender to another EU Member State, since the principle of non-refoulement concerns transfer to a territory where the person would face the relevant threats and international protection within the EU has a uniform character. It further found that the requested person had failed to prove five years of stable and continuous lawful presence or sufficiently strong integration in Italy to justify execution of the sentence there.

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.

France submitted a complementary request for the extradition of a French national already detained in Colombia in connection with two previous extradition proceedings, seeking his prosecution for nine charges arising from alleged organised-crime activity, including attempted homicide, participation in a criminal association, destruction of property and handling property derived from organised robbery. The Supreme Court examined the formal validity of the request, identity, double criminality, ne bis in idem, limitation periods and the absence of political-offence grounds, finding all applicable constitutional and treaty requirements satisfied. In particular, it held that the conduct alleged by the French authorities constituted criminal offences under both French and Colombian law and therefore met the double criminality requirement. The Court issued a favourable opinion on the complementary extradition request, subject to guarantees concerning speciality, the prohibition of the death penalty and inhuman treatment, and credit for time spent in detention in Colombia.

France requested the extradition of the applicant, who was provisionally arrested in Saint Lucia and subsequently refused provisional release by a magistrate because of flight risk and the absence of exceptional circumstances. The applicant asked the High Court to review that refusal under the Bail Rules 2023. The High Court held that extradition proceedings are governed by a specific statutory and treaty framework that does not confer appellate jurisdiction to review a magistrate’s pre-committal decision on provisional release. Although the High Court retains inherent jurisdiction to determine a fresh bail application, it could not treat the application as an appeal or review, and therefore upheld the preliminary objection and dismissed it.

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.

The case concerned a European Arrest Warrant issued by the Public Prosecutor at the Paris Judicial Court for the surrender of a Dutch national sought for prosecution in France. The requested person relied on the return guarantee under Article 6 OLW, which the Amsterdam District Court accepted, finding that his social and family ties with the Netherlands were sufficient to require that any future custodial sentence be served in the Netherlands. The main issue concerned detention conditions in Fresnes prison, where the requested person was likely to be held after surrender. Relying on recent CPT findings, the Court held that detainees in Fresnes faced a general real risk of inhuman or degrading treatment due to overcrowding, poor material conditions, a non-functioning intercom system, and inadequate healthcare. Since the information provided by the French authorities did not dispel the individual risk for the requested person, the Court stayed the surrender decision and set a 60-day period for further information or changed circumstances.

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.

Martial law remains in force throughout the territory of Ukraine, and the Ukrainian Government has notified the Council of Europe and the United Nations that it continues to derogate from Ukraine’s obligations under Article 2(3), Articles 9, 14 and 17 of the International Covenant on Civil and Political Rights and Articles 5, 6, 8 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, without prejudice to the fundamental principles of a fair trial and legal protection, including the ne bis in idem principle.The Court found that said derogations were not limited to areas of active conflict. It also highlighted that the Ukrainian government cannot predict which areas might be targeted next and, as a result, might become affected by the derogations. Further, because of the martial law in force, itself dependent on the duration of the war, the temporary detention of the person concerned will depend on an "authorized agent" and its extension will depend on the prosecuting authority, except by decision of a judge or a court. There is no guarantee that the requested individual would benefit from a fair trial within a reasonable time.

The French authorities sought the surrender of a requested person from Germany under a European Arrest Warrant for the enforcement of a four-year custodial sentence. Following concerns regarding prison overcrowding and the risk of detention conditions contrary to Article 4 of the EU Charter and Article 3 ECHR, the German court repeatedly requested specific information and assurances concerning the prison in which the requested person would be held and the conditions of detention. The Higher Regional Court of Koblenz held that the French responses remained insufficiently concrete and binding, as several possible prisons were identified without a reliable assurance as to the actual place of detention, available personal space and other relevant conditions. Since the risk of inhuman or degrading treatment could therefore not be excluded, surrender was declared inadmissible and the extradition arrest warrant was revoked.

The case concerned an extradition request submitted by the French Republic against a person sought for multiple offences connected with:- international drug trafficking;- money laundering;- organized criminal activity;- cross-border financial transfers.French judicial authorities alleged that the requested person participated between 2017 and 2021 in a transnational narcotics and financial-crime organization involving cocaine trafficking and laundering of criminal proceeds between France and foreign jurisdictions.The Kırklareli 2nd Heavy Penal Court found the extradition request admissible under Law No. 6706.The defence appealed, arguing inter alia that:- no sufficiently convincing evidence linked the requested person to the alleged offences;- extradition would disproportionately affect the requested person’s family life and social integration in Türkiye under Article 11(4) of Law No. 6706.The Turkish Court of Cassation partially accepted the appeal. The Court held that:- the extradition request failed to adequately explain the underlying criminal investigations;- the factual allegations concerning where, when, and how the offences were allegedly committed were insufficiently specified;- certified translated evidentiary materials demonstrating the requested person’s connection to the offences had not been provided.The Court further emphasized that extradition admissibility must be separately assessed for each offence forming the basis of the extradition request.Because the lower court failed to individually analyze the extradition conditions for each alleged offence, the judgment was quashed.

On 18 April 2022, the Permanent Representation of Ukraine informed the Secretariat General of the Council of Europe of the impossibility of guaranteeing the full implementation by the Ukrainian side of its obligations under the international treaties concerning international cooperation within the Council of Europe during the period of armed aggression by the Russian Federation against Ukraine and the imposition of martial law on the territory of Ukraine. The list of aforementioned treaties included: the European Convention on Extradition (ETS No. 24), the Additional Protocol to the European Convention on Extradition (ETS No. 86), the Second Additional Protocol to the European Convention on Extradition (ETS No. 209), the Third Additional Protocol to the European Convention on Extradition (ETS No. 212) and the Fourth Additional Protocol to the European Convention on Extradition (ETS No. 212). As a result, the Requesting State was found unable to guarantee that the requested individual would be judged by a court able to ensure a fair trial and the respect of the rights of the defence. Further, the requested individual could face a denial of justice, as a result of the application of the martial law and the ongoing armed conflict, which could profoundly disrupt the judicial system and prevent the progress of proceedings.

Extradition to a State bound by the ECHR cannot be refused on health grounds where: the requesting State provides adequate assurances regarding medical care; and there is no concrete evidence of a real risk of treatment contrary to Articles 2 or 3 ECHR. Mutual trust applies to “first circle” States (such as France), and no specific guarantees are required, even in the presence of serious health conditions, unless a concrete and individualised risk is demonstrated.

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.

Tunisia requested the extradition of a national for prosecution for premeditated intentional homicide, an offence potentially punishable by death. The French Court of Cassation held that, where capital punishment may be imposed, the requesting State must provide an unambiguous undertaking that the death penalty would neither be imposed nor carried out against the specific requested person. General references to Tunisia’s longstanding moratorium, its voting record before the United Nations and its international commitments were insufficient, particularly because the assurances did not clearly and individually address the requested person’s situation. The favourable extradition opinion was therefore quashed and the case remitted for reconsideration.

Summary:The Court of Cassation approves the reasoning of the Appeal Court of Chambéry. Martial law remains in force throughout the territory of Ukraine, and the Ukrainian Government has notified the Council of Europe and the United Nations that it continues to derogate from Ukraine’s obligations under Article 2(3), Articles 9, 14 and 17 of the International Covenant on Civil and Political Rights and Articles 5, 6, 8 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, without prejudice to the fundamental principles of a fair trial and legal protection, including the ne bis in idem principle.The Court found that said derogations were not limited to areas of active conflict. It also highlighted that the Ukrainian government cannot predict which areas might be targeted next and, as a result, might become affected by the derogations. Further, because of the martial law in force, itself dependent on the duration of the war, the temporary detention of the person concerned will depend on an "authorized agent" and its extension will depend on the prosecuting authority, except by decision of a judge or a court. There is no guarantee that the requested individual would benefit from a fair trial within a reasonable time.

The proceedings sentencing the requested individual were not adversarial. The requested individual was not present at the appeal hearing regarding his case. He was not represented by a lawyer and did not receive personal service of the judgment.He was also not informed of multiple proceedings conducted between 2011 and 2017. Although the requested individual became aware of the aforementioned decisions in 2017, the last mean of appeal available is before the Court of Cassation which rules on points of law but not on the facts.The extradition request is rejected on optional grounds for refusal.