16 Dec European arrest warrant

The European arrest warrant (“MAE”) is a simplified judicial surrender procedure for the purpose of criminal prosecution or execution of a sentence or a security measure involving deprivation of liberty. A warrant issued by the judicial authorities of a Member State is valid throughout the territory of the European Union. It has been operational since January 1st 2004 and replaced the lengthy extradition procedures between EU states. L’art. 1 of the Framework Decision 2002/584/JHA of the Council of the European Union of 13/06/2002, on the European arrest warrant and surrender procedures between Member States, dictates the notion of MAE; it is the: “judicial decision issued by a member state of the European Union with a view to the arrest of a person, for the purpose of exercising judicial actions in criminal matters or the execution of a sentence or a security measure involving deprivation of personal liberty". The mechanism is based on the principle of mutual recognition of judicial decisions. It is operational in all EU states and operates through direct contacts between judicial authorities. What are the differences compared to traditional extradition procedures?
1.Strict deadlines
The country where the person is arrested must take the final decision on the execution of the European arrest warrant by 60 days after arrest.
If the arrested person agrees to surrender, the decision is made by 10 days.
The requested person must be handed over as quickly as possible on a date agreed between the relevant authorities, I'll be in at the latest 10 days from the final decision relating to the execution of the European arrest warrant.
2.Double jeopardy: control is no longer required for 32 categories of crimes
Per 32 categories of crimes, no steps are taken to verify whether the act constitutes a crime in both countries. The only requirement is that it is punishable by a maximum statutory penalty of at least three years' imprisonment in the country that issued the warrant.. For other crimes, arrest may be made subject to the condition that the act constitutes a crime in the country of execution.
3.Elimination of the political filter.
The decision whether or not to surrender a person on the basis of an EAW is included, indeed, in an exclusively judicial process, competent being the Court of Appeal in whose district the accused or convicted person resides, the residence or domicile at the moment in which the provision is received by the judicial authority; where it cannot be determined in this way, the Court of Appeal of Rome will be competent; in the event of multiple MAEs in respect of multiple people with residences, different residences or domiciles, jurisdiction will fall to the Court in whose district there is the greatest number of subjects. Also in this case, where it is impossible to proceed in this way, jurisdiction will fall to the Court of Appeal of Rome. Se, Still, the person has been arrested, jurisdiction will fall to the Court of Appeal of the district in which the arrest took place;
4.Surrender of its own citizens
In principle, EU member states can no longer refuse to hand over their citizens, unless they assume jurisdiction for the criminal prosecution or execution of the sentence of deprivation of liberty against the requested person.
5.Guarantees
The country executing the MAE may request the following guarantees:
a. after a certain period the person will have the right to request a review, in case it was a life sentence.
b. the requested person may spend the period of detention in the executing country, whether it is a citizen or a resident (usual) in that country.
Mandatory reasons for refusing the MAE
A country may refuse to surrender the warranted person only if one of the following grounds for mandatory or optional refusal applies:
Mandatory reasons
•the person has already been tried for the same crime (In the beginning, do not do the same thing twice)
•minori (the person has not reached the age required for criminal liability in the executing country)
•amnistia (the executing country could have prosecuted the individual and the crime was amnestied in that country).
Optional reasons – examples:
•lack of double criminality for crimes that are not included among the 32 criminal cases referred to in the article 2, paragraph 2, of the Framework Decision on EAW
•territorial jurisdiction
•criminal proceedings underway in the country of execution
•prescrizione ecc.
The passive surrender procedure concerns the case in which the Judicial Authority of a foreign member state issues the EAW. (c.d. Issuing state) towards a person who is on Italian territory. In this case he will have to carry out the arrest, therefore, be the Italian state (c.d. Execution status). This hypothesis is governed by Title II, Chapter II of the Law. 22/04/2005, n. 69. Before describing the procedure in detail, it seems useful to make a brief mention of the principles enshrined in the articles. 1 e 2 of this Law.
The legislator has foreseen that our country will execute the arrest warrant in compliance with the following rights and principles:
a. fundamental rights guaranteed by the Convention for the Protection of Human Rights and the protocols additional to it (art. 2, comma 1, became. a);
b. constitutional principles relating to fair trial, including those relating to the protection of personal freedom, to criminal responsibility and the quality of criminal sanctions (art. 2, comma 1, became. b). In this perspective, art. 2 provides that Italy will refuse delivery in the event of a serious and persistent violation, by the requesting State, the prince of God from art. 2, became. a), established by the Council of the European Union.
It is also important to remember that:
1. the so-called guarantee. jurisdictional (established by the art. 5) by virtue of which our country will be able to hand over the subject only following a favorable decision by the Court of Appeal;
2. the principle of double criminality (contained in the art. 7), on the basis of which the MAE will be executed only if the fact is also foreseen as a crime by Italian law, exception made – as well as cases of mandatory delivery – for those referred to in the paragraph 2 of the same art. 7. This principle, indeed, does not apply in cases where, regarding taxes and duties, customs and exchange, Italian law does not contain the same type of tax or regulation. However, these must be taxes and duties similar by analogy to those provided for by local law, for which the sanction of imprisonment of the maximum duration is foreseen, excluding aggravating circumstances, equal to or greater than years 3;
3. sempre in base all’art. 7, it is required that the act be punished by the law of the issuing State with a sentence or security measure with a maximum duration of no less than twelve months, while, in the event of a conviction, the sentence or security measure must be no less than four months.
Now coming to the passive execution procedure (Articles. 9 e 10), the Judicial Authority competent to execute the MAE is the Court of Appeal, which will have to verify whether the crime falls within those for which mandatory surrender is envisaged pursuant to art. 8 (or ascertain what the definition of the crimes covered by the MAE is and whether it corresponds to the cases referred to in the paragraph 1 dell’art. 8).
Worth noting, moreover, that, even if this verification gives a positive result, under subsection 3 dell’art. 8, in case the fact is not foreseen as a crime by Italian law, the surrender of the Italian citizen will not be followed up, if it turns out that he was not aware, without his own fault, of the criminal law of the issuing Member State which is the subject of the EAW.
The procedure can be activated in two different ways:
1. in the first case, the procedure begins with the receipt of the MAE request by the Minister of Justice who transmits it without delay to the President of the competent Court of Appeal, ex art. 5.
President, around you, immediately informs the Attorney General, proceeding with the obligations within its competence.
The same happens even if the MAE has been sent to him by the Authority of the requesting State.
At that point, the President convenes the Court of Appeal which, having heard the Attorney General, proceeds with a reasoned order, under penalty of nullity, to the application of the coercive measure, where deemed necessary, taking into account in particular the need to prevent the requested person from evading surrender.
To about, they are observed, as applicable, the provisions regarding personal precautionary measures, except for the articles. 273, paragraphs 1 e 1-bis, 274, comma 1, became. a) e c), e 280.
Finally, coercive measures will not be ordered if causes preventing delivery are deemed to exist.
In this case, within five days of carrying out the measures, and in the presence of the trusted defender o, lacking, of a public defender appointed pursuant to art. 97 c.p.p., the President of the Court of Appeal (or delegated magistrate) proceeds to interview the requested person.
On this occasion he will have to inform, Inter alia, the arrested man, in a language known to him, of the content of the MAE, of the enforcement procedure, of the right to consent to one's surrender and to renounce the principle of specialty. The defender must necessarily be present and will have the right to be notified at least 24 hours before (art. 10, comma 2, L. n. 69/2005).
It will come, then, the hearing in chambers has been set for the decision within the deadline of 20 days from the execution of the measurement, by decree to be communicated to the Attorney General and notified to the person requested for surrender and to his lawyer, at least 8 days before the hearing. The art. applies. 702 c.p.p. .
2. In the second case, the procedure begins with the provisional arrest by the Judicial Police, ex art. 11, L. n. 69/2005, following insertion of the report into the information system (c.d. S.I.S.) di Schengen. In this case, it is the judicial police who proceed to arrest the person by placing him immediately and, However, no later than twenty-four hours, available to the President of the Court of Appeal in whose district the provision was executed, by transmitting the relevant arrest report and immediately communicating it to the Ministry of Justice.
The Minister of Justice, around you, immediately communicate the arrest to the requesting Member State, for the purposes of transmitting the MAE and the documentation referred to in the art. 6, paragraphs 3 e 4, L. n. 69/2005. Unlike what happens with the institution of extradition for which the arrest by the Judicial Police is left to a discretionary evaluation (art. 716 c.p.p.), in the case of MAE the arrest is considered a necessary act.
In this case, the judicial police who carried out the arrest must inform the person, in a language he understands, del MAE, by providing you with a written communication informing you of the possibility of consenting to the delivery, to appoint a lawyer and the right to be assisted by an interpreter. The same must also give timely notice of the arrest to the defender (paragraphs 1 e 2, art. 12).
The penalty of nullity, the arrest report must acknowledge the obligations referred to in the paragraphs 1, 2 e 3, as well as checks on the identification of the arrested person.
Within forty-eight hours of receiving the report, the President of the Court of Appeal or a Magistrate delegated by him, informed the Attorney General, provides, in a language known to the arrested person e, where necessary, in the presence of the interpreter, to hear it.
If it is clear that the arrest was carried out due to personal error or outside the cases provided for by law, the President of the Court of Appeal, or the delegated Magistrate, orders with a reasoned decree that the arrested person be released (art. 13, comma 2).
Out of this case, the President will validate the arrest by applying the coercive measure, with an ordinance which will lose effect if, within ten days, the MAE and/or the report in the S.I.S. is not received. (acronym which stands for Schengen Information System).
The decision of the Court of Appeal can be appealed to the Supreme Court. The Deliveree is entitled to lodge an appeal in cassation, his Defender, the Attorney General at the Court of Appeal.
The appeal:
a. must be proposed within ten days of legal knowledge of the above-mentioned measures;
b. it can also have as its object substantive reasons;
c. has a suspensive effect on the execution of the sentence.
The Court of Cassation decides within fifteen days of receiving the documents, in the forms of the Chamber rite pursuant to art. 127 c.p.p. In case of cancellation with postponement, the referring judge will have to decide within twenty days of receiving the documents (art. 22, L. n. 69/2005).
It is used when the Italian judicial authority requests the surrender of a person from a member state of the European Union:
– recipient of a personal precautionary measure (custody in prison or house arrest);
– against whom a prison sentence or a personal safety measure is to be carried out;
– that resides, is domiciled or lives in a member state of the European Union.
Notably, the MAE can be issued:
a. by the Judge who applied the precautionary measure of precautionary custody in prison or house arrest – c.d. Procedural MAE (art. 28, comma 1, became. a);
b. by the Public Prosecutor to the Judge indicated by the art. 665 c.p.p. who issued the order for the execution of the prison sentence pursuant to art. 656 c.p.p. provided that the sentence lasts no less than one year and does not suspend execution – c.d. Executive MAE (art. 28, comma 1, became. b);
c. by the Public Prosecutor, identified pursuant to art. 658 c.p.p. , with regards to the implementation of personal custodial security measures.
Where it deems necessary to issue it, the competent Authority has two possibilities:
1. issue the MAE if it appears that the accused or convicted person is a resident, domiciled or residing in a Member State of the Union;
2. arrange for the inclusion of a specific report (S.I.S.), a norma dell’art. 95 of the Convention implementing the Schengen Agreement, if the location is unknown, or it is only possible that the subject is in the territory of a Member State. Where the requested person enjoys immunity or other benefits or privileges recognized by a State other than the executing State, or by an international body, the Authority will have to forward a request for revocation of the privilege or exclusion of immunity.
Once issued, the MAE is sent to the Minister of Justice, that provides, subject to translation into the language of the executing State, to its transmission to the competent Authority. The Service for International Police Cooperation is immediately notified of the issue of the MAE.
The MAE loses its effectiveness when the restrictive measure for which it was issued, has been revoked or cancelled, or if declared ineffective. In this case, the Attorney General at the Court of Appeal, immediately informs the Minister of Justice, so that the latter informs the executing Member State (art. 31, L. n. 69/2005).
The Attorney General may also ask the Judicial Authority of the executing Member State to hand over the assets subject to seizure or confiscation possibly issued by the Judge., sending a copy. A similar possibility also exists in the case of a passive delivery procedure. In the latter case, at the request of the Judicial Authority that issued the MAE, or ex officio, the Court of Appeal may order:
the seizure of assets necessary for evidentiary purposes;
the confiscation of the res that constitute the product, the profit or price of the crime that is available to the requested person.
The request will contain an indication whether the delivery is for evidentiary or confiscation purposes (e, if you are missing, the Court will ask the Attorney General to forward it).
In case of request, the Court will provide – having heard the Prosecutor – with a reasoned decree, applying the articles. 253, 254, 255, 256, 258, 259 e 260 paragraphs 1 e 2, c.p.p.
The things will be concretely delivered according to the agreements reached through the Minister of Justice. If the delivery is for testing purposes, the Court orders that it be subject to the condition that the goods are returned, once the procedural requirements have been satisfied. The goods are also delivered in cases of death or escape of the requested person. Any rights acquired over the assets by the Italian State or third parties are always reserved.
If the assets of which are requested to be seized, are already subject to seizure ordered by the Italian Judicial Authority in the context of an ongoing criminal proceeding and their confiscation is expected, delivery can be arranged:
for evidentiary purposes only;
and subject to authorization from the proceeding Italian Judicial Authority.
The same happens in the event that the assets are subject to seizure as part of a civil proceeding
Esso, recognized to the person subjected to proceedings for the execution of a European arrest warrant (art. 10), arises at the time of arrest carried out in accordance with the warrant (par. 1). It is an "implemented" principle according to which from the first moment of deprivation of personal freedom, the right to technical assistance must be recognized. In tal senso, then, the Directive consolidates and reiterates what has already been widely established in the application phase.
At most, we could think about the possible consequences resulting from non-recognition. The regulatory text is silent on this point. The only prediction of any usefulness, about it, is constituted by the art. 12 of the directive, who, generally, it limits itself to stating that it will be the obligation of the Member States to provide effective means of appeal for the protection of the rights recognized by the directive. More problematic, instead, it is the discussion where we shift our gaze to another side. Basically, one wonders whether the violation, occurred during the proceedings for the execution of the arrest warrant, may have concrete implications within the "upstream" procedure in the issuing State. Solutions on the table, abstractly, they could be different. It would clearly be unrealistic to hypothesize the invalidity of the precautionary order that gives impetus to the issuance of the arrest warrant (otherwise, in case of an "executive" arrest warrant, the unexecution of the sentence). The basic and intuitive need to keep two procedures distinct hinders you, however interrelated, they run on two different tracks and that, without prejudice to exceptional regulatory provisions, they do not tolerate interference of any kind. On the contrary, it could be argued that the absence of the defender, in the passive delivery procedure, results in serious harm to the interested party, or the impossibility of examining the legitimacy of the arrest made in the executing State; with the consequence that, as the victim was not offered an adequate opportunity for protection, the arrest itself and the subsequent surrender should be considered illegitimate. Evocative setting, but that is not convincing: it is difficult to imagine a “single” judicial system, which provides for the radiation of perishable effects at a transnational level. There is no doubt: as expressly dictated by the Directive, the right to a lawyer in the aforementioned procedure is aimed at guaranteeing the requested persons the effective exercise of the prerogatives recognized in the Framework Decision 2002/584/JHA; then, albeit exceptionally and according to the strict limits established by the European legislator, to deduce violations, implemented within the issuing State, that are obstacles to the execution of the mandate. But it is equally true that, reasoning in the terms set out above, it would end up colliding with the principles of the system: so designed, the approach would certainly be in clear contrast with the mutual recognition of judicial decisions. In short: I know, on the one hand, the defender's guarantee is vigorously affirmed, on the other, the consequences deriving from possible non-compliance remain exclusively confined to the delivery procedure. And it's difficult, also, do not see a clear contrast in the regulatory text: on one side, there is mutual recognition that, far from placing itself in the dimension of subjective guarantee, assists objective needs such as the repression of offenses and the most fruitful judicial collaboration between member states; on the other, the duty arises to effectively ensure the implementation of a fundamental guarantee. To such a point, it is necessary to evaluate the legislative provisions with reference to the assistance of the lawyer in the issuing State. It was unthinkable to conceive of the creation of the defense guarantee before the arrest warrant was issued, under penalty of the risk of nullifying any effectiveness of the measure, which is mainly based on the surprise effect of the restriction of freedom imposed following the Euromandate. It's necessary, therefore, think about what is established in the fourth paragraph of the art. 10 of the Directive. It establishes the obligation for the executing State, immediately after arrest and without undue delay, to inform the victim of the possibility of appointing a lawyer in the issuing State. Provision of undoubted importance, logically aimed at providing the lawyer in the executing State with the technical assistance necessary for the exercise of the rights connected to Framework Decision 2002/584/JHA. Observation, moreover, carried out by the Commission itself during the preparatory work: there being no doubt that the defender of the issuing State is certainly in a more favorable position, and for the collection of the necessary information on the fact, and for the obvious technical expertise on national law. Well, if the rationale inherent in the prediction is clear, it must be assessed whether it adds a quid novi in ​​terms of the level of protection currently ensured. In other words: if the provision contained in the paragraph 4 dell’art. 10, as well as being logically connected to the exercise of the aforementioned rights, can be interpreted as a clause that establishes various and additional safeguards. In the first place: where the requested person is not guaranteed the assistance of a lawyer in the issuing State, as recognized by the Directive, what consequences arise within the enforcement procedure? Let's think with domestic law (in a hypothetical passive procedure). In the absence of legislative provisions on the subject, the starting point can only be given by the general provisions on nullity (Articles. 177 ss. c.p.p.). A first hypothesis to examine is whether art. 179 c.p.p., which punishes with absolute nullity (also detectable ex officio at every stage and stage of the proceedings) the violation of the provisions that establish the mandatory presence of the defender. Alternatively, a nullity could be envisaged in the intermediate regime (art. 180 c.p.p.): even if one does not want to include the violation in question in a real "absence" of the defender, it would appear to be a failure to comply with a rule designed to safeguard the assistance of the accused. For the avoidance of doubt: it should be clarified that this is a different situation from that considered in the previous paragraph, where it was assumed that the lack of defensive assistance, occurred during the delivery procedure, could explain lapsing effects in the "main" proceedings. Here the scenario is different: the defect occurs within the passive procedure alone, and specifically concerns the appointment of the lawyer in the issuing State following the arrest and the start of the surrender procedure in the executing State. If that's the case, the above reconstruction does not appear to be entirely unfounded. Consequentially, the arrest carried out on the initiative of the judicial police, where not duly accompanied by the information in question, should be considered illegitimate and, therefore, it should not be validated; where the violation continues during the delivery procedure, a nullity could usefully be raised, according to the cadences of the ritual code. And that would be a solution, in this case, in line with the same principle of mutual recognition. Indeed, the desired equivalence of judicial decisions presupposes a substantial homogeneity of the protected rights, and actual recognition, in the procedure implemented in a Member State, of a system of functional guarantees for the subsequent exercise of rights in another Member State. A further problem, then, is represented by the function which the lawyer must fulfill in the issuing State, possibly appointed following the notice pursuant to art. 10 paragraph 4: as well as protecting a more effective exercise of the rights of the arrested person in the passive surrender procedure, one can ask whether his presence is aimed at ensuring better protection of the accused in the "upstream" proceedings (criminal or execution of sentence). To clarify: let's assume that Italy is the issuing country, and that a defender is appointed there by the arrested person pursuant to the paragraph 4 of the Directive. His presence, clearly, has a dual purpose: provide the defender of the executing State with all the necessary support and technical aid; ensure, following delivery, the most timely and effective intervention in the "upstream" procedure. If so, precisely for the purpose of preserving the possibility of subsequent intervention by the interested party in the issuing State (issue not addressed by the Directive), one could think about introducing a mechanism for suspending the deadlines relating to the presentation of precautionary appeals (or requests in the executive branch) to the judicial authority. An example is the "procedural" arrest warrant: if the deadline for making a request for review (art. 309 c.p.p.) may remain suspended pending the passive delivery procedure, until it runs out. Otherwise, one could think of an ex post remedy: the possibility that the arrested, following delivery, be returned within the deadline for filing a precautionary appeal. In other words: it would be a question of applying the content of the art by analogy. 4- bis of Framework Decision 2002/584/JHA (as amended by Framework Decision 2009/299/JHA), which provides for the executing State an optional reason for refusing to surrender the arrested person sentenced in absentia, except these, duly informed of the possibility of reopening the trial, does not exercise the rights recognized therein. Be careful: it would be an analog application, given that the provision referred to refers only to the "executive" arrest warrant. Reasoning according to the principles operating in the Italian legal system, the principle of mandatory appeals would prevent this. It can also be observed, But, that similar hermeneutical operations are not entirely foreign to domestic jurisprudence (see for example the European revision).