Orden de Detenci Europea - International Lawyers Associates

Regarding the European Arrest Warrant

Regarding the European Arrest Warrant

The refusal of surrender for failure to send the requested documentation prevents a new decision on the same e.a.w. application (Cass. criminal section VI, n. 35290).

As regards the European Arrest Warrant, the principle of ne bis in idem  applies in case of an irrevocable judgment of refusal of surrender, more specifically for failure to send the requested additional documentation to the foreign State. So the Court of Appeal cannot change its previous decision, following the subsequent receipt of such documentation (in motivation, the court has specified that only in the case where the refusal is motivated by the serious danger of subjection to impermissible treatment, according to art. 18, c.1, lett. h, l.69 of 2005, the judgment is to be considered as adopted, in view of the current state of documents, and is therefore susceptible to a new assessment if the impediment to surrender is removed).

From this point of view, the Italian Court of Cassation has clarified that an exception to the exclusion effect can be recognised only in the particular hypothesis in which surrender is refused if there is a serious danger that the person sought will be subjected to inhuman or degrading treatment. In this case, in fact, the previous decision may be modified if, within a reasonable time, news is received that allows the exclusion of the danger in question. (Criminal Court of Cassation 2019, 2, 762).

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