European Arrest Warrant; Preventive Detention
| Author | Michele Nino |
| DOI | 10.1350/jcla.2007.71.6.501 |
| Published date | 01 December 2007 |
| Date | 01 December 2007 |
| Subject Matter | Court of Cassation, United Criminal Sections (Corte Di Cassazione, Sezioni Unite Penali) |
Sections (Corte di Cassazione, Sezioni
Unite Penali)
European Arrest Warrant; Preventive Detention
Judgment No. 4614 of 5 February 2007
In this decision, the Court of Cassation (United Sections) dealt with the
implementation of the European Arrest Warrant (EAW) in the Italian
legal system, giving an interpretation of national law which was com-
pliant with Community law. The Court of Cassation was called upon to
resolve an interpretative issue regarding Article 18(e) of Law No. 69 of
2005 which implemented, in Italy, EU Council Framework Decision
No. 584 of 2002/584/JHA of 13 June 2002 on the European Arrest
Warrant (OJ L/190, 18 July 2002, pp. 1–20). The national law provides
that an Italian judge can refuse to surrender a person for whom an EAW
has been issued if the law of the Member State issuing the EAW does not
provide for maximum periods of preventive detention. Law No. 69 of
2005 reproduces Article 13(5) of the Italian Constitution according to
which: ‘The law establishes maximum periods for preventive detention’.
In the opinion of Mr Pecorella, a Member of the Italian Parliament who
proposed it, that aspect of the Law was aimed to avoid the possibility of
an individual being deprived of his personal liberty indefinitely in the
absence of conviction.
On 13 March 2006 the German Magistrate Court of Hanau (Richter am
Amtsgericht) issued an EAW in respect of RV, a Serbian citizen from the
region of Kosovo, who was charged with attempted murder, an offence
punishable by Articles 211, 212 and 213 of the German Criminal Code.
By a judgment of 27 April 2006 the Court of Appeal of Lecce ordered RV
to surrender to the requesting court, taking the view that all legal
requirements of Italian law were met. On 18 April 2006, the accused
appealed to the Court of Cassation asking for the annulment of the
judgment of the Court of Appeal of Lecce. In particular he maintained
that this tribunal had not verified the existence of maximum periods for
preventive detention in German law as required by Article 18(e) of Law
No. 69 of 2005. On 2 October 2006 the Sixth Section of the Court
of Cassation submitted the case to the United Sections of the Court of
Cassation under Article 618 of the Italian Code of Criminal Procedure in
order to clarify the scope of Article 18(e).
HELD, according to Article 18(e) of Law No. 69 of 2005, before an
individual is surrendered, the Italian judicial authority must verify
whether the law of the Member State issuing the EAW explicitly fixes a
term of duration of preventive detention until the trial judgment. In the
absence of an express legal indication, the judge must ascertain if a term
of duration can be implicitly deduced from...
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