In brief. A European Arrest Warrant (EAW) is not executed automatically: Italian law and EU law set out a closed list of grounds on which surrender must or may be refused. The mandatory grounds (art. 3 of Framework Decision 2002/584/JHA) include amnesty, ne bis in idem and the age of criminal responsibility; the optional grounds (art. 4) cover territoriality, ongoing domestic prosecution and execution of the sentence in the Member State of residence. On top of these, the Italian implementing statute (Law 69/2005) and the case law of the Court of Justice of the EU add a fundamental-rights dimension, including the risk of inhuman or degrading detention under art. 3 ECHR. Identifying the right ground at the outset is the single most important defence decision in an EAW case.

The European Arrest Warrant rests on mutual recognition between EU judicial authorities, introduced by Framework Decision 2002/584/JHA (“FD”) and implemented in Italy by Law 22 April 2005, no. 69 (“L. 69/2005”), as amended by D.Lgs. 10/2021. Surrender is the rule; refusal is the exception, and the exceptions are exhaustively listed.

There are three families of grounds for refusal:

  • mandatory grounds (art. 3 FD; art. 18 L. 69/2005), where the executing authority must refuse;
  • optional grounds (arts. 4 and 4a FD; arts. 18-bis and 18-ter L. 69/2005), where the executing authority may refuse, exercising a margin of appreciation;
  • fundamental-rights grounds, developed by the Court of Justice of the EU (CJEU) and anchored in art. 1(3) FD, the EU Charter of Fundamental Rights and, in Italy, art. 2 L. 69/2005.

Separately, art. 19 L. 69/2005 allows the Court to make surrender conditional on guarantees (review of life sentences; return of nationals and residents to Italy).

The competent executing authority in Italy is the Court of Appeal of the district where the requested person has their residence, abode or domicile (or, after a police arrest, of the district where the arrest took place; failing both, the Court of Appeal of Rome: art. 5 L. 69/2005), with appeal to the Court of Cassation within 5 days, on points of law only (art. 22).

Mandatory grounds for refusal

Under art. 3 FD and art. 18 L. 69/2005, the Court of Appeal must refuse surrender in three core situations.

  • Amnesty. The offence is extinguished by an amnesty under Italian law and Italy has jurisdiction over the act.
  • Ne bis in idem. The requested person has already been finally judged for the same acts in Italy or in another Member State, provided that, where a sentence was imposed, it has been served, is being served or can no longer be enforced (see below).
  • Age of criminal responsibility. The person was under 14 at the time of the offence.

Before 2021, art. 18 of the Italian statute listed many more bars (some, such as the political-offence and discrimination bars, going beyond the Framework Decision). D.Lgs. 10/2021 reduced art. 18 to these three grounds, but the fundamental-rights filter remains through art. 2 L. 69/2005 and the CJEU case law.

Ne bis in idem in detail

Ne bis in idem (the prohibition on being tried twice for the same conduct) is among the most frequently invoked grounds. It is enshrined in art. 50 of the EU Charter and art. 54 of the Schengen Implementation Convention. The defence must demonstrate that a final decision exists, on the same material facts (idem factum, not merely the same legal qualification), and that any penalty has been enforced, is being enforced, or can no longer be enforced. Parallel or duplicated proceedings across Member States are common in cross-border economic crime, and this is where the analysis is most technical.

Optional grounds for refusal

Art. 4 FD lists the optional grounds that Member States may transpose. Italy, in art. 18-bis L. 69/2005, transposed three of them:

  • Territoriality. The offence was committed in whole or in part on Italian territory, or outside the issuing State where Italian law would not allow prosecution for the same offence committed abroad.
  • Pending domestic prosecution. Criminal proceedings are already pending in Italy against the person for the same act.
  • Execution of the sentence in Italy. Where the EAW is for the execution of a custodial sentence and the requested person is an Italian citizen or has lawfully resided or stayed in Italy continuously for at least five years, the Court may refuse surrender and order that the sentence be served in Italy (art. 4(6) FD; art. 18-bis(2) and (2-bis) L. 69/2005), in line with the rehabilitation objective.

Other optional grounds in art. 4 FD — a decision not to prosecute, limitation periods, a final judgment in a third State — have not been transposed into the current Italian text and therefore cannot be invoked as such before an Italian Court of Appeal.

Nationality and residence

Unlike traditional extradition, the EAW does not allow a blanket refusal to surrender nationals. The Italian regime is two-track:

  • Enforcement warrant — the nationality/residence ground (art. 18-bis(2)) lets Italy refuse surrender and enforce the foreign sentence domestically. Residence must be lawful, effective and continuous for at least five years, and the Court must assess integration in concrete terms (duration, work, tax and social-security compliance, family and other ties: art. 18-bis(2-bis)). Since Constitutional Court judgment no. 178/2023 and Law 103/2023 this applies to residents of any nationality, including non-EU nationals. Following CJEU C.J. (C-305/22, Grand Chamber, 4 September 2025) and Cass. Sez. VI no. 30618/2025, the Court must first obtain the issuing State’s consent to the transfer of enforcement under Framework Decision 2008/909/JHA; if consent is refused, surrender goes ahead.
  • Prosecution warrant — surrender of a citizen or five-year resident may be made conditional on the person being returned to Italy to serve any sentence imposed (art. 5(3) FD; art. 19(2) L. 69/2005). This is a guarantee attached to surrender, not a ground for refusing it.

This is a powerful tool for English-speaking clients who are long-term Italian residents.

Fundamental-rights grounds

Beyond the statutory lists, the CJEU has recognised that an executing court may postpone or refuse surrender where there is a real risk of a breach of fundamental rights.

  • Inhuman or degrading detention (art. 3 ECHR / art. 4 Charter). Following Aranyosi and Căldăraru (C-404/15 and C-659/15 PPU), the executing court applies a two-step test: first, evidence of systemic or generalised deficiencies in the issuing State’s prison system; second, a concrete, individualised assessment of the real risk to the specific person. If the risk cannot be excluded, surrender is refused.
  • Right to an independent tribunal (art. 47 Charter). Following LM (C-216/18 PPU) and L and P (C-354/20 PPU), systemic deficiencies affecting judicial independence in the issuing State may, after an individualised assessment, justify refusal.
  • Discriminatory warrants. Where there are objective grounds to believe that the warrant was issued to prosecute or punish a person on grounds of sex, race, religion, ethnic origin, nationality, language, political opinion or sexual orientation (recital 12 FD), surrender may be refused under the fundamental-rights clause (art. 2 L. 69/2005).

In absentia convictions

A frequent scenario is an EAW based on a judgment rendered in absentia (without the person’s participation at trial). Art. 4a FD (in Italy, art. 18-ter together with art. 6(1-bis) L. 69/2005) allows refusal unless the warrant indicates that the person was duly summoned and informed of the trial, was represented by a lawyer they had mandated, or will be entitled to a retrial or appeal on the merits after surrender. The defence must scrutinise the EAW form: an incomplete or contradictory section (d) on the in absentia guarantees is a recurring and decisive weakness.

How ILA builds an EAW refusal defence

EAW cases move fast and the grounds for refusal must be raised before the Court of Appeal within tight deadlines. ILA’s approach combines an immediate analysis of the warrant form (offence description, dual criminality, in absentia boxes), early gathering of country-specific evidence on detention conditions, and coordination with the issuing-State authorities to obtain assurances where the Aranyosi risk is in play. Where appropriate, we file in parallel before the Court of Cassation and, in exceptional cases, before the European Court of Human Rights.

FAQ

What is the difference between mandatory and optional grounds for refusal? Mandatory grounds (art. 3 FD 2002/584/JHA; art. 18 L. 69/2005) require the Court of Appeal to refuse surrender: amnesty, ne bis in idem, age under 14. Optional grounds (arts. 4 and 4a FD; arts. 18-bis and 18-ter L. 69/2005) give the court discretion to refuse, for instance where the offence was committed in Italy, where an Italian citizen or five-year resident would serve the sentence in Italy, or for an in absentia conviction without guarantees.

Can an EAW be refused because of bad prison conditions in the issuing country? Yes. Under the CJEU Aranyosi case law, if there is a real risk of inhuman or degrading treatment (art. 3 ECHR, art. 4 Charter) the court must postpone and, if the risk cannot be dispelled, refuse surrender. The analysis is both systemic and individual to the person concerned.

Does Italy have to surrender its own nationals under an EAW? There is no automatic exemption for nationals. However, where the EAW is for executing a sentence, Italy may refuse to surrender an Italian citizen or a person lawfully resident for at least five years and enforce the sentence domestically, with the issuing State’s consent (art. 18-bis(2)); for prosecution warrants, surrender can be conditioned on the person being returned to Italy to serve any sentence (art. 19(2)).

For the full picture of how the EAW operates and how surrender proceedings unfold, see our pillar guide to the European Arrest Warrant, or contact the firm directly via the Contact page.