In this article, we will examine the concept of “territorial rooting,” a crucial element that conditions the validity of the European Arrest Warrant when a person is requested to serve a sentence issued by the issuing State of the warrant in the executing country.
What is the European Arrest Warrant?
Before delving into the details of territorial rooting, it is essential to understand what the European Arrest Warrant is exactly. In short, it is a mechanism of simplified extradition among the European Union (EU) Member States, based on mutual trust between these states. Now, let’s explore the concept of territorial rooting and how it affects the validity of this warrant.
Territorial Rooting in Relation to the European Arrest Warrant
The Court of Cassation provided a clear answer to this question with judgment number 18712 of 2020.
Definition of Territorial Rooting
The concept of territorial rooting refers to obtaining Italian citizenship or acquiring legal residence in the Italian State.
Real and Non-Occasional Territorial Rooting
The Court of Cassation outlined the criteria to determine whether a European Arrest Warrant is conditioned by territorial rooting, an element that influences its legitimacy. It noted that:
The “resident” status makes no distinction between citizens of EU Member States and non-EU individuals. Moreover, it is not limited to formal anagraphic residence but requires a real and non-occasional rooting of the foreigner in Italy.
Indicators of Rooting
The indication of real and non-occasional rooting can be derived from various symptomatic indicators, including the legality of the presence for non-EU citizens, the continuity and territorial stability of the presence, the significance of work, family, and emotional ties, the payment of contributions and taxes, and the time elapsed between the commission of the crime, the foreign conviction, and the beginning of presence in Italy.
In summary, the requirement of residence in Italy and the existence of employment links indicate rooting characterized by temporal continuity.
The Relationship Between Territorial Rooting and the European Arrest Warrant
The assessment of territorial rooting affects the legitimacy of the European Arrest Warrant. According to Article 19, letter c) of Law 69/2005, “if the person subject to the European Arrest Warrant for criminal proceedings is a citizen or resident of the Italian State, the surrender is subject to the condition that the person, after being heard, be sent back to the executing State (Italy) to serve any sentences or measures involving the deprivation of personal liberty that may have been imposed on him or her by the issuing State of the European Arrest Warrant.”
This means that in cases of “procedural” European Arrest Warrants, when the requested person is an Italian citizen or resident, their surrender is conditional upon the person being sent back to the executing state (Italy) to serve any sentences that may have been issued by the issuing state of the European Arrest Warrant.
In essence, residence in Italy is a requirement for the legitimacy of the surrender decision.
What Is a European Arrest Warrant?
Before we continue, let’s delve into the European Arrest Warrant and its facets.
European Arrest Warrant
The European Arrest Warrant is a judicial decision issued by an EU Member State for the purpose of arresting and surrendering a person to another Member State for criminal proceedings or the execution of a sentence or measure involving the deprivation of personal liberty.
Procedural and Executive European Arrest Warrants
The European Arrest Warrant can be used for procedural purposes, such as the execution of precautionary measures, even if adopted to allow the defendant’s participation in the proceedings, but not for the sole purpose of undergoing investigative acts (interrogations and confrontations).
European Arrest Warrant Procedure
There are two main procedures related to the European Arrest Warrant: passive execution and active execution.
Passive execution occurs when the European Arrest Warrant is issued by a Member State and directed to Italy. In this case, the competent judge to execute the warrant is generally the Court of Appeal in whose jurisdiction the defendant or convict resides or has domicile when the decision reaches the judicial authority. In the absence of such information, the Court of Appeal of Rome has jurisdiction.
Active execution is used when the Italian judicial authority requests the surrender of a sought person from another EU Member State.
The Importance of an Experienced Attorney
The legitimacy of the European Arrest Warrant is subject to various conditions prescribed by Law 69/2005, both procedurally and substantively. It is essential to verify compliance with all legal requirements when you are the recipient of a European Arrest Warrant. Therefore, it is advisable to seek the assistance of a lawyer experienced in territorial rooting and the European Arrest Warrant when faced with such a situation.
If you have received a European Arrest Warrant, you may consider consulting an experienced criminal defense attorney who can provide the most suitable assistance for your case.