(Mar. 9, 2021) On February 2, 2021, Italy issued Legislative Decree No. 10 (L.D. No. 10) amending domestic legislation to implement a European Union (EU) standard related to the European Arrest Warrant.
General Provisions on the Implementation of the EU Arrest Warrant
Under the new legislation, the implementation of EU provisions for EU arrest warrants must comply with the fundamental principles of Italy’s Constitution concerning essential rights, as well as the rights to freedom and due process of law (L.D. No. 10, art. 1(1)(a)).
An EU arrest warrant is applicable in Italy based on the reciprocity principle as long as it is issued by a judicial authority for the execution of a penalty or a safety measure limiting personal freedom (L.D. No. 10, art. 1(1)(b)).
Italy is not bound to execute EU arrest warrants issued by an EU member state whose participation in the reciprocity mechanism has been suspended by the EU Council based on that state’s serious and persistent violation of the EU Treaty (concerning the rights, freedoms, and principles set out in the 2000 Strasbourg Charter of Fundamental Rights of the European Union) (L.D. No. 10, art. 1(1)(c), paras. 2, 2(1)).
The execution of an EU arrest warrant for a person who has not appeared personally in the criminal procedure must contain an indication of at least one of the following conditions:
- the person has been timely summoned by personal service or another method that guarantees unequivocally that the person knew about the date and place of the procedure in which the arrest warrant was issued, and the order could have been issued even in the person’s absence (L.D. No. 10, art. 3(1)(a)),
- the person has been represented by a defense attorney in the proceedings (L.D. No. 10, art. 3(1)(b)),
- the person, after being informed of the right to begin a new procedure or to file an appeal, has expressly waived such right (L.D. No. 10, art. 3(1)(c)), or
- the person has not personally received the warrant, but will receive it personally after having been extradited to the requesting state and will be informed of his or her rights (L.D. No. 10, art. 3(1)(d)).
Upon an Italian appellate court’s receipt of an EU arrest warrant for a person, the chief judge of the court or a delegate must order the warrant’s filing with the court, set a hearing within 15 days, and order the notification of the attorney general and the person’s counsel (L.D. No. 10, art. 7(1)(b), (c)).
A judicial order authorizing the execution of an EU arrest warrant must be immediately communicated to the Ministry of Justice, which in turn must inform the appropriate authority from the requesting EU member state and the Italian Service for International Police Cooperation (L.D. No. 10, art. 7(1)(d), para. 2).
Mandatory Refusal of Execution of an EU Arrest Warrant
An Italian appellate court must refuse the execution of an EU arrest warrant if
- the crime identified in the warrant is extinguished by amnesty per Italian legislation, provided that the Italian state has jurisdiction over the underlying facts (L.D. No. 10, art. 14(1)(1)(a)),
- based on the same facts as are in the warrant, an irrevocable criminal decision or order or otherwise final decision has been issued in Italy, or a final sentence has been issued in another EU member state, provided that, in the event of a conviction, the sentence has already been executed or is in the process of being executed, or can no longer be executed under the laws of the state that issued it (L.D. No. 10, art. 14(1)(1)(b)), or
- the person subject to the warrant was younger than 14 years of age at the time of the crime (L.D. No. 10, art. 14(1)(1)(c)).
Discretionary Refusal of Execution of an EU Arrest Warrant
An appellate court may refuse the execution of an EU arrest warrant
- if the warrant concerns crimes that, under Italian law, are considered to have been wholly or partially committed in Italian territory, or concerns crimes committed outside the national territory of the requesting state when Italian legislation does not allow prosecution for the same crimes committed outside Italian territory (L.D. No. 10, art. 15(1)(1)(a)), or
- when there is a pending criminal procedure in Italy for the same facts as are included in the warrant (L.D. No. 10, art. 15(1)(1)(b)).
An appellate court may refuse execution when the warrant affects an Italian citizen or a foreign EU citizen who has been a lawful resident of Italy for at least five years, and it can order that Italian criminal procedure be used instead (L.D. No. 10, art. 15(1)(2)).
Criteria for the Execution of an EU Arrest Warrant in Italy
Italian judicial authorities must ensure that the following additional criteria are complied with before authorizing the execution of an EU arrest warrant in Italian territory:
- if the crime that is the subject of the warrant carries a life sentence, the requesting state must provide a mechanism allowing for the review of the penalty within 20 years of its imposition (L.D. No. 10, art. 17(1)(a)), and
- if the warrant was issued against an Italian citizen or a foreign EU citizen who has been a lawful resident of Italy for at least five years, after being subject to the respective procedure, that person must be returned to Italy to serve the sentence given in the requesting state (L.D. No. 10, art. 17(1)(b)).
The person for whom a warrant is issued, the person’s counsel, or the attorney general may appeal an appellate court’s authorization of the execution of an EU arrest warrant to Italy’s Supreme Court (L.D. No. 10, art. 18(1)(a)(1)).
A person extradited to a foreign state in compliance with an EU arrest warrant may not be extradited to another EU state or to a third state for a crime that occurred before the extradition of the person, provided that the consent of the requesting state is also obtained (L.D. No. 10, art. 25(1)).