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 carrying out judicial actions in criminal matters or the execution of a sentence or a security measure that deprives personal liberty ".
The "EAW" is not valid for minor offenses and must be used in the light of the principle of proportionality. In fact, before issuing the order, national authorities must assess the seriousness of the crime, the length of the sentence and the cost-benefit ratio. This instrument can be used if the person sought is charged with a crime for which at least one year in prison is foreseen or, in case of conviction, when a minimum sentence of at least 4 years in prison is foreseen.
The decision to surrender or not a person on the basis of a European arrest warrant is registered in an exclusively judicial process since the Court of Appeal in whose district the accused or convicted person has residence, domicile or domicile at the time of receives the order of the competent judicial authority to execute a European arrest warrant.
The necessary requirement for delivery is the existence of a foreign judicial resolution, by virtue of which the OEDE is issued, which must alternatively consist of an irrevocable conviction or a precautionary measure signed by a Judge and motivated. By virtue of this judicial decision, then, the Judicial Authority of the issuing State must formulate a Request, the OEDE in fact.
In this regard, it is essential to specify that for the issuance of the European arrest warrant the requirement of double criminality is not always required but, on the contrary, mandatory surrender is foreseen for all the crimes indicated in art. 8, L. n. 69/2005 (criminal associations, crimes in the field of prostitution, including minors, or in the field of child pornography, crimes in the field of drugs, weapons, money laundering crimes, etc.).
Furthermore, the delivery can only be rejected for the reasons set out in art. 18, LN 69/2005. Among these reasons are: the fact that the sentence was handed down 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 3 years of age .
Specifically, then, Law No. 69/2005 provides for two delivery procedures: the passive delivery procedure and the active delivery procedure. With the passive delivery procedure, our country is obliged to deliver the subject, with the asset being Italy, which requires, in its own territory, the delivery of an individual.
Regarding the passive procedure, it should be noted that the surrender of the accused or convicted person abroad cannot be granted without the favorable decision of the court of appeal of the district in which the person to be surrendered resides, lives or is domiciled.
Another requirement to legitimize the delivery is that of the cd. double sanction that establishes that the act by which the process is carried out must be considered a crime by both the issuing Member State and the executing State; however, as specified above, this requirement is superseded by article 8 in particularly serious cases. In addition, the delivery is subject to additional requirements, such as: the fact that the requested subject is not simultaneously subjected to another procedure previously committed (unless the subject has left the State where it was delivered or after forty-five days it has been made voluntarily return), that the crime is not punishable by a measure capable of depriving personal liberty, and finally that the person sought has given their consent for the surrender.