European arrest warrant | ODE - International Lawyers Associates

European arrest warrant | ODE

If you, a family member or acquaintance is being held for a crime, we can help you.

The European arrest warrant is, in essence, a simplified form of extradition, entrusted to the judicial authorities of the member states of the European Union.
The European arrest warrant is, in essence, a simplified form of extradition, entrusted to the judicial authorities of the member states of the European Union.

The ODE or MAE (European Arrest Mandate) is foreseen by the EU Council Framework Decision of June 13, 2002, implemented by the Italian legal system only in 2005; The reason for this delay lies in the fact that our legal system offers higher guarantees than the standard of the other Member States.

But let's see in detail what the EAW consists of. The law of 2005 defines the European arrest warrant "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, in order to take legal action in criminal matter or the execution of a penalty or a security measure that deprives personal liberty. "

There are several requirements imposed by law. The minimum requires that the foreign judicial decision consist of an irrevocable sentence of conviction or a precautionary measure signed and motivated by the judge.

Another requirement is that of the so-called double criminality, which states that the fact that the procedure should be considered a crime in both Member States.
The Supreme Court of Cassation established with a judgment of November 23, 2010, n. 41370, that the European arrest warrant cannot be executed when a criminal proceeding is being carried out in Italy for the same act against the person sought by the foreign judicial authority.

The passive delivery procedure.

The delivery procedure is divided into 3 phases.

  1. The first phase consists of the communication of the provision by the issuing authority to the executing authority.
  2. The second phase establishes that the requesting authority can execute the mandate or reject it.
  3. In the third and final phase, the judicial authority must decide on the delivery of the interested party, after it has given its consent or not.

In the event that the requested person does not give his consent for the delivery, he has the right to be brought before the executing judicial authority.

The decision is referred to the Italian Court of Appeal, in whose district the person in question has his residence, domicile or domicile, which evaluates the request and decides whether to refuse or order the delivery, following a confrontation procedure. The decision must be made within 60 days after the arrest.

When applying the European arrest warrant, the authorities must respect the procedural rights of the suspect or defendant, therefore, he has the right to be informed, to appoint a lawyer and an interpreter, as well as the right to be admitted to legal assistance.

It is good that the accused is assisted by an expert defender in the matter that is already in the phase.

The active delivery procedure.

However, there is an active delivery procedure when Italy requests the delivery of a defendant or convict present in another Member State.

It is competent to issue the order or the judge that issued the precautionary measure (investigating magistrate) or the prime minister in case it has become an irrevocable sentence to be executed.

The ODE is sent to the Minister of Justice, who transmits it to the competent authority of the other Member State.

Danger of leakage and ODE.

As we have mentioned, the disposition of the authority that orders the ODE must be justified.

In case of applying a precautionary measure, even in a passive delivery procedure for a European arrest warrant, there is an obligation to provide an effective justification for the decision taken. In the case of the danger of escape, the decision of the investigating judge must be based on the requirements of concreteness and timeliness and on circumstances that really indicate the real possibility of expulsion by the interested party.

This is the opinion of the Court of Cassation that, with sentence no. 39249/2018 stressed that “in a passive delivery procedure for a European arrest warrant, the danger of escape cannot be based on style formulas, such as making the motivation apodictic and apparent and based on the decision only on the seriousness of the crime «.

Reasons to reject the ODE.

The country can refuse the delivery of the person subject to the mandate only in the following mandatory cases:

  • the person has already been tried for the same crime (ne bis in idem principle);
  • less;
  • amnesty;
  • danger that the person may be subjected to inhuman and degrading treatment or the death penalty.

Regarding this last point, the Section of the Supreme Court of Cassation VI, with the sentence no. 23277 of 06.06.2016 specified that “the reason for the refusal of delivery related to the serious danger, that the person be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment, requires verification, after determining the "Existence of a general risk of inhuman treatment by the Member State, if, in concrete terms, the person subject to ODE can be subjected to inhuman treatment".

Appeal.

It is possible to appeal to the Court of Cassation against the provision that decides on the execution of the European arrest warrant, which suspends the delivery sentence but not the provision with which a precautionary measure is applied.

The appeal may contain, in addition to the grounds of legitimacy, also those of merit.

In the event that a European arrest warrant has been issued, it is necessary to contact a lawyer with experience in the sector to obtain adequate legal assistance.

If you, a family member or acquaintance is being held for a crime, we can help you.

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Very explanatory, good to read and learn.
  • Marco Lanner
5

Summary

The European arrest warrant is, in essence, a simplified form of extradition, entrusted to the judicial authorities of the member states of the European Union.

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