European Arrest Warrant: what it is, procedure and who to turn to for all-round protection

Matters relating to extradition, the European Arrest Warrant, international rogatory letters and all matters connected with aspects of judicial cooperation between countries and between police forces (Interpol) have always been a particularly thorny issue for our country. We can imagine what difficulties may be encountered, in seeking protection, by those who are involved for personal or family reasons.

ILA’s lawyers specialise in European arrest warrants and can deal with any case directly.

What is the European Arrest Warrant?

In general terms, the ‘EAW’, the European Arrest Warrant, is an instrument of international judicial cooperation in criminal matters which, by replacing all provisions on extradition in relations between the Member States of the European Union, introduces an innovative discipline with regard to surrender in relations between judicial authorities in relation to persons subject to precautionary measures or final sentences.

The ultimate aim of this instrument is to make it easier within the European area to surrender wanted persons.

This agreement is dictated by the need to cope with criminal phenomena with transnational profiles and is part of an ever-increasing cooperation in criminal matters between the Member States of the European Union.

Who deals with the EAW in our country?

As regards our country, it should be specified that Italy executes the European Arrest Warrant on the basis of the principle of mutual recognition, provided that the European Arrest Warrant originates from a judicial authority and that, when it is issued for the purpose of executing a penalty or a security measure involving deprivation of liberty, the sentence to be executed is enforceable.

In addition, our country does not execute European arrest warrants issued by a Member State in respect of which the Council of the European Union has suspended the implementation of this mechanism following a serious and persistent breach of the principles enshrined in the legislation.

Already in the light of these considerations, it is easy to understand how the defence in this area requires a serious knowledge of all international legislation and that relating to investigative cooperation between the judicial authorities of different countries; this expertise is undoubtedly to be found among the lawyers of International Lawyers Associates.

European Arrest Warrant procedure: how it works

A European Arrest Warrant is defined as ‘a judicial decision issued by a Member State of the European Union, with a view to the arrest and surrender by another Member State, of a person, for the purpose of prosecution in criminal matters or execution of a custodial sentence or a detention order’.

The ‘EAW’ does not apply to trivial offences and must be used in the light of the principle of proportionality. The national authorities must assess the seriousness of the offence, the length of the sentence and the cost-benefit ratio before issuing the warrant. It can be issued if the wanted person is charged with an offence for which a minimum of one year imprisonment is foreseen or, in the case of a sentence, when it provides for a minimum sentence of at least four years imprisonment.

The decision whether or not to surrender a person on the basis of an EAW is a purely judicial process, the Court of Appeal in whose district the accused or convicted person has his or her residence, abode or domicile at the time the order is received by the judicial authority having jurisdiction to execute a European Arrest Warrant.

The prerequisite for surrender is the existence of a foreign judicial decision, on the basis of which the EAW is issued, which must consist, alternatively, either of an irrevocable conviction or of a protective order signed by a Judge and motivated. By virtue of this Judicial decision, the Judicial Authority of the issuing State must then make a Request, the EAW.

In this regard, it is essential to specify that the requirement of dual criminality is not always required for the issuance of the European arrest warrant but, on the contrary, mandatory surrender is provided for all the offences indicated in Article 8, Law No. 69/2005 (criminal associations, prostitution offences, including child prostitution or child pornography, drug offences, weapons, money laundering offences, etc.).

Furthermore, surrender can only be refused on the grounds provided for in Article 18, Law No. 69/2005. These grounds include: having been sentenced in violation of the principles of a fair trial, or in violation of inalienable procedural guarantees, in the case of minors or pregnant women or mothers of children under three years of age.

Specifically, then, Law No. 69/2005 provides for two surrender procedures: the passive surrender procedure and the active surrender procedure. With the passive surrender procedure, Italy is requested to surrender the subject, with the active surrender procedure, it is Italy that requests, within its territory, the surrender of an individual.

With regard to the passive procedure, it should be noted that the surrender of a defendant or convicted person abroad cannot be granted without the favourable decision of the court of appeal in whose district the person to be surrendered resides, lives or is domiciled.

A further requirement for legitimising surrender is that of dual criminality, which stipulates that the act for which proceedings are being carried out must be considered an offence by both the issuing and the executing Member State; this requirement, however, as specified above, is superseded by Article 8 in cases of particular gravity. In addition, surrender is subject to further requirements, such as the fact that the requested person is not the subject of other proceedings committed at the same time (unless the person has left the surrendering Member State or voluntarily returned to it after forty-five days), that the offence is not punishable by a measure depriving the person of his or her liberty, and finally that the requested person has consented to surrender.

An evolving discipline

The provisions on the European Arrest Warrant and surrender procedures between Member States are always subject to constant change. That is one more reason why it is a good idea to turn to a team of lawyers who are highly competent and always up-to-date in this field.

It is worth mentioning, first of all, Law No. 69 of 22 April 2005 with which Parliament enacted the new provisions on the European Arrest Warrant and surrender procedures between Member States, in implementation of Framework Decision 2002/584/JHA of the European Council; this measure is applied in compliance with the supreme principles of the constitutional order in terms of fundamental rights, freedom and fair trial.

Subsequently, the 2018 European Delegation Law (Law No. 119/2019) provided, among the most important criteria, that of harmonising the internal EAW law with Framework Decision 2002/584/JHA, both in relation to the surrender procedure and information obligations, as well as to the regulation of grounds for refusal.

Finally, recently, Legislative Decree no. 10 of 2 February 2021 made further significant amendments to Law no. 69 of 22 April 2005. The purpose of the reform is undoubtedly to circumvent the criticalities that over the years have prevented the principle of mutual recognition from operating smoothly.

Defending against a European Arrest Warrant: who to turn to?

Anyone wishing to benefit from legal assistance and defend themselves against a European Arrest Warrant, involving serious and qualified international legal cooperation, may turn to International Lawyers Associates.

If in the past, in fact, requests for the surrender of detainees to and from Italy and requests for extradition to and from third countries, whether within or outside the borders of the European Union, were almost rare and occasional, nowadays they happen much more frequently, and this requires the support of a truly experienced, qualified, competent and specialised team such as that of International Lawyers Associates has always proved to be

International Lawyers Associates: a success story on the European Arrest Warrant

The context in which a law firm specialising in the European Arrest Warrant operates is a not insignificant asset in terms of protection.

This is one of the reasons why International Lawyers Associates is so well-known throughout the country and beyond.

The merit is due to its dense and capillary European and worldwide network of offices in which lawyers are able to follow the affairs of each individual client with the utmost speed and efficiency.

Regarding the EAW, it is necessary to participate directly in criminal defence, dictating the lines of defence also by means of colleagues, assistants, third associates and partners who come into contact with the detainee and/or the assisted person.

This is why that of Criminal Lawyer Alexandro Maria Tirelli, coordinator of International Lawyers Associates, can truly be considered a career of great professional success.

Supported by his direct knowledge of Spanish, Portuguese, French and English, Attorney Tirelli is able to interface personally with the client, as well as with the local judiciary prosecuting the defendant, no matter where he is.

International issues such as the surrender of arrested persons from and abroad are – needless to say – very delicate indeed: one need only think of the Uruguayan and Argentinian military, requested by the Court of Rome as part of the trial instituted for the mass executions to the detriment of the so-called desaparecidos of Italian origin; think again of the trial against the dictator of Panama, General Manuel Noriega, requested by Italy in connection with the murder of Minister Ugo Spadafora.

Such a demanding subject as extradition and European arrest warrant issues requires experience and seriousness: it is better to rely on real professionals.