European Union: What's The European Arrest Warrant?

Last Updated: 13 August 2019
Article by Arnone & Sicomo

The European arrest warrant (EAW) is a legal procedure which consists in the request by an EU Member State's judicial authority to another State to arrest and surrender an individual who lives within its own territory.

This procedure is inspired to the principle of mutual recognition of judicial decisions among European States. The European arrest warrant is indeed valid in all EU Countries.

The procedure was introduced with the EU Council Framework Decision 2002/584 and came into force in Italy by Law 69/2005, it has substituted time-consuming and cumbersome extradition procedures among EU Member States, with specific reference to fugitives from justice after being convicted with final judgement in their own Country of origin, for purpose of optimizing surrender time schedule.

European arrest warrant: characteristics of procedure

The characteristics of this procedure are the followings:

Tighter surrender terms: the State in which the individual is arrested shall surrender him to the State which has issued the European arrest warrant within 60 days since the arrest took place;

Introduction of exemptions from the principle of the so-called double incrimination, namely for 32 assumptions of crime it is not necessary that the offence is punishable in the two States involved in the procedure anymore, unless the offence is punishable with sentence involving deprivation of freedom for at least 3 years;

Introduction of a merely judicial procedure, without any political intervention;

a Member State may not refuse to surrender its own citizen, except that it takes on responsibility for penal action or sentence enforcement;

the State that executes the arrest warrant may request the following guarantees: after a certain period of time the person concerned has the right to ask for a revision, in case a life sentence has been pronounced; the fugitive may spend retention period in the surrendering State, if the individual is citizen of or (usual) resident in that State;

a State may reject the EAW in presence of specific compulsory or elective reasons.

  1. Passive procedure of execution of European arrest warrant in Italy

Responsibility to execute an European arrest warrant is up to the Court of Appeal of the district in which the defendant or offender is resident or temporarily living in the moment the procedure is received from the judicial authority.

Alternatively, it is up to the Court of Appeal of Rome.

The European arrest warrant enforcement procedure consists in the following phases:

the Italian Ministry of Justice, once received the European arrest warrant issued by a Member State's competent authority, transmits it without delays to the President of the Court of Appeal;

the President of the Court of Appeal undertakes immediate formalities, convenes the Court of Appeal and, after having heard the General Prosecutor, proceeds by reasoned order under penalty of nullity to application of enforcement measure, if found necessary.

After 5 days from measure execution, the President hears the party concerned and, in mandatory presence of a lawyer and, if necessary, of an interpreter, notifies the party concerned on the arrest warrant content and enforcement procedure, as well as in regard to the right to agree with being surrendered.

In case the arrest is executed by the Italian Criminal Police and it is subsequent to report of the wanted person to theSchengen Information System (SIS), no longer that twenty-four hours after arrest, the individual concerned is made available to the President of the Court of Appeal of the district in which the procedure has been executed, through transmission of the related report, and by giving immediate notification to the Minister of Justice.

The Criminal Police undertakes a series of requirements for purpose of safeguarding the individual's right of defence, requirements shall be registered in the arrest report under penalty of nullity.

Within 48 hours from receipt of report, the President of the Court of Appeal hears the arrested person and decides on validating the arrest or applying a different precautionary measure;

Within 20 days from execution of precautionary measure, the President schedules the hearing in chambers, by notifying the parties and arranging the deposit of warrant and transmitted documents;

The Court of Appeal decides in chambers on the surrender procedure by judgement, which can be appealed before the Supreme Court.

European arrest warrant: all assumptions of rejection

The Court of Appeal may reject surrender in the following cases:

- if the arrest warrant is based on discrimination reasons;

- if the right has been infringed by consent of whom, in accordance with the Italian law, may validly dispose of it;

- if according to the Italian law the deed consists of exercise of a right, fulfilment of an obligation, or it has been determined by coincidence or force majeure;

- if the deed is expression of freedom of association, freedom of press or other means of communication;

- if the law of the Member State of issuing does not envisage maximum limits of preventive detention;

- if the European arrest warrant relates to a political crime;

- if from records, the final judgement related to the European arrest warrant is not consequence of an equal trial;

- if there is a serious risk that the wanted person is facing death penalty, torture or inhuman or humiliating treatments;

- if the person subject to the European arrest warrant was under the age of 14 at the moment the offence was committed, or if the person subject to the European arrest warrant was under the age of 18, when the concerned offence is punished by a sentence below a maximum of four years;

- if the contested crime is extinguished by amnesty;

- if it appears that the wanted person has been judged by final sentence for the same offences by an EU Member State as long as, in case of conviction, the punishment has been executed, or is going to be executed,or may not be executed in accordance with the law of the State which has issued the sentence;

- if the deeds for which the European arrest warrant has been issued could have been judged in Italy and crime or punishment prescription has already taken place;

- if, for the same deed, a criminal procedure against the wanted person is ongoing in Italy;

- if the European arrest warrant relates to those offences considered by the Italian law totally or partially committed on its territory, or in a place treated as such;

- if a sentence not to prosecute has been pronounced in Italy;

- if the European arrest warrant has been issued for purpose of execution of penalty or detention order, in case the wanted person is an Italian citizen, provided that the Court of Appeal disposes that this penalty or detention order is executed in Italy in accordance with its domestic law;

- if the wanted person is a pregnant woman or mother of children under the age of three living together with her, unless the precautionary requirements underlying the restrictive measure issued by the judicial authority appear of exceptional severity;

- if the precautionary measure underlying the European arrest warrant issuing appears lacking of reason;

- if the wanted person according to the Italian law benefits from immunities which limit the operation or continuation in criminal proceedings;

- if the sentence for which surrender has been requested contains dispositions contrary to the fundamental principles of the Italian law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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