In the case of an arrest in Italy on the basis of a European arrest warrant, it is necessary to prepare appropriately a defensive strategy from the outset which may aim at the release of the arrested person, as well as to prevent the person from being handed over to the country requesting the delivery.
If you have this type of problem in Italy and you want legal assistance, you can contact an European Arrest Warrant lawyer Italy who has gained considerable experience in these cases.
In this article I would like to explain to you what to do and how to defend yourself in case of an arrest in Italy for an European Arrest Warrant (EAW).
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What is the European Arrest Warrant?
The European Arrest Warrant (EAW) is an arrest warrant by which a person must be arrested once he is in one of the Member States of the European Union.
This is because a person is charged with a crime and must be remanded in custody or when he has been finally convicted for having committed a crime in one of the countries of the European Union.
The purpose of the detention of the person is precisely to bring the person back to the country where he allegedly committed the crime and for which he must be tried or served his sentence.
In these cases, therefore, the Country where the offence was committed, after the person concerned has not been found in this national territory, issues a European arrest warrant which will be made public in all Member States of the European Union precisely in order to find the person and arrest him.
What happens after the issuance of the European arrest warrant in Italy?
Once the European arrest warrant has been issued, if the person is in one of the Member States of the European Union, the police will arrest him and place him at the disposal of the Judicial Authority, that is, the District Court of Appeal in which the arrest took place.
For example, if the arrest took place in the province of Naples, the person will be made available to the judges of the Naples Court of Appeal, etc.
During the arrest, the judicial police who made the arrest inform the person that he has the right to appoint a trusted lawyer so that he can ensure an effective defense and provide adequate legal support.
What happens after an arrest for an European arrest warrant?
If the European arrest warrant is issued by the Court of Appeal, within 5 days after the arrest, the President or the Deputy Magistrate proceeds to the hearing of the arrested person, informing him, in a language that he knows, regarding the content of the European arrest warrant and the execution procedure, as well as in relation to the right to consent to his surrender in the requesting State.
The detainee’s lawyer must be notified at least 24 hours before the scheduled date of the hearing.
The person requested for delivery is also informed that his consent for delivery, once granted, cannot be revoked.
After hearing from the arrested person and his lawyer, a hearing is set in the court council room for the decision within 15 days.
If there has been a notification in the Schengen Information System (SIS) by the Member State, the judicial police can directly order the arrest of the wanted person once it is verified that the person has been found.
At this stage, the Judicial Police place the detainee – within 24 hours – at the disposal of the President of the Court of Appeal of the district in which the arrest was made.
Therefore, the detained person is informed of the possibility of appointing a trusted lawyer; otherwise, a State attorney is appointed.
Validation of the European arrest warrant
Once the Judicial Police have arrested and placed the detained person at the disposal of the President of the Court of Appeal, the detained person is heard in the presence of his lawyer within 48 hours of receipt of the arrest report.
If the legal conditions exist, the arrest is validated and the measure of provisional imprisonment is applied, otherwise the person is released.
In all cases, a hearing is set in the court’s council room for the decision to hand over the detainee within 15 days.
If the person does not object to the surrender in the country that issued the European arrest warrant, he will be surrendered without delay to execute the arrest warrant.
But if the detainee does not want to return to the country that requested his arrest (and therefore did not consent to surrender), what happens?
What happens in case of non-consent for delivery?
If the detainee does not wish to return to the country that requested his arrest, the Court of Appeal sets the hearing in which it decides whether the conditions for accepting the surrender request are met.
During this hearing, both the detainee and his trusted lawyer are heard: in order to try to avoid surrendering to the State that issued the European arrest warrant, it seems appropriate to implement a defensive strategy aimed at obtaining an unfavorable decision from the court of appeal on the surrender and thus obtaining the freedom of the detainee.
In these cases, a lawyer specialized in European arrest warrant could be counted on in Italy to avoid delivery in accordance with current legislation on the European arrest warrant (this is law number 69 of 2005 updated by Legislative Decree 10 of 2021).
In some cases, in fact, surrender can be avoided and the person can go back to freedom or serve their sentence in Italy.
Therefore, in the event of non-manifestation of consent, the decision of the Court of Appeal regarding surrender must be pronounced within 15 days of the execution of the arrest.
In the event that the European arrest warrant is incomplete, because it does not contain the information necessary to issue the surrender decision and, therefore, it is necessary to obtain additional information, this may be additionally requested by the Italian Court of Appeal and the due period of fifteen days can be extended for another ten days.
Once all the necessary information has been received, within the prescribed period, if there are no causes that prevent surrender, the Court of Appeal pronounces a judgment ordering the surrender of the person sought.
If, on the contrary, the decision is contrary to surrender, for example because there are conditions that prevent surrender, the Court of Appeal orders the release of the person initially detained.
Unsurprisingly, there are certain cases that are required by law and that your European arrest warrant lawyer must absolutely be aware of, in which surrender cannot be ordered.
Which are? I’ll explain it below.
Why can the delivery be refused?
As I told you, there are certain cases in which delivery cannot be arranged: it is the so-called denial grounds that may be mandatory or optional.
They are provided for in art. 18, 18 bis and 18 ter of law number 69 of 2005, that is, the law on the European arrest warrant last amended by legislative decree no. 10 of 2021.
Do you want to know what they are?
If your answer is yes, you can contact us through the request form below this page or read our other articles that discuss in more detail the issue of denial of delivery.
Our law firm has already dealt with and resolved several European arrest warrant cases in Italy.
Read some of our articles on this topic.
- Extradition and European Arrest Warrant (EAW) in Italy
- Lawyer for extradition to Belgium and European arrest warrant (EAW)
- Extradition in Italy: cannot be granted in case of risk of violation of human rights
- Italian Lawyer for Extradition Cases. Italian International Law Firm
Therefore, to avoid surrender, it is necessary to verify whether, in the case of the arrest of the person in question, the conditions exist to deny surrender (mandatory or optional) in order to obtain a favorable decision and the release of the arrested person.
Do you wonder what to do if the Court of Appeal has issued the decision ordering the surrender of the detainee?
I will explain it to you in the next paragraph.
What happens if the Court of Appeal has ruled in favor of surrendering the detainee?
In the event that the Court of Appeal has issued the sentence ordering the surrender of the detainee, the lawyer may appeal in cassation within 5 days following the legal knowledge of the decision.
Reasons for appeal can only be invoked for infringement of the law or for the reasons indicated in letters a), b) and c) of section 1 of art. 606 of the Italian Code of Criminal Procedure.
The appeal against the decision favorable to surrender must be presented to the secretary of the Court of Appeals that ruled on the case.
The important thing is to know that in the event of an appeal, the detained person will not be handed over to the requesting authorities if the appeal has not been resolved before; in effect, the appeal has a suspensive effect on the postponement.
The Court of Cassation rules on the appeal within 10 days after receipt of the documents and the decision is presented immediately after the hearing with a contextual statement of reasons or provided on the second day of the judgment.
What happens if the Court of Cassation has considered the surrender decision legitimate?
If, after the judgment handed down by the Court of Appeal, the Court of Cassation has considered legitimate the provision according to which the detained person has been surrendered to the country that issued the European arrest warrant, an extraordinary and urgent appeal may be lodged with the European Court of Human Rights.
This method can only be used in exceptional cases and in cases of violation of human rights and fundamental freedoms.
How long does it take to complete the delivery process?
The final decision on the surrender procedure must be made within 60 days from the arrest.
In the event that this decision is not adopted within the 60-day period provided, the Court of Appeal must immediately inform the Minister of Justice of the delay and of the reasons that motivated it, so that the foreign authority that issued the decision communicates the European arrest warrant.
If the final decision is not made within the next thirty days, the Court of Appeal decides whether the maintenance of the detention is still necessary, if it is not necessary, it orders the release of the detained person or the replacement of the detention measure in Italy with a softer measure (e.g. house arrest).
When there is no decision and 90 days have elapsed, the Court of Appeal orders the detainee’s release.
What happen if a final decision on delivery has been made and all deadlines have been met?
After the final decision has been rendered by the Court of Appeal (therefore also confirmed by the Court of Cassation and the failed attempt by the European Court of Human Rights), the person must be handed over to the State that has requested the arrest as soon as possible and, in any case, within ten days of the final decision.
Delivery can be suspended for two reasons:
- when there are causes of force majeure that prevent delivery;
- when there are humanitarian or serious reasons to believe that the surrender would endanger the life or health of the person.
An additional period of ten days is granted to order the cessation of the reasons that imposed the provision on the suspension of delivery.
If delivery is not made even after the next ten days, the detainee’s release is ordered.
Why contact an experienced European arrest warrant lawyer in Italy?
The best defense that can be guaranteed to you is a result acquired only with experience and a thorough knowledge of the legal norms.
In the case of criminal law, it is important to know the legislation of the criminal code, international law and have experience accumulated over the years.
That is why you have to trust a Criminal and International Lawyer in Italy who knows the law on the European arrest warrant.
What is our working method?
If you contact a European arrest warrant lawyer in Italy, you can:
– get an immediate quote without future surprises. Each defensive choice will be agreed with you in advance, you will not have any unpleasant surprises and you will not have to incur any unforeseen costs. From the beginning, you will know the costs that you will have to face.
– Always be informed of our professional activity carried out in your exclusive interest. You will be updated step by step on what we are doing and what will happen. We will explain things to you so you can understand the difficult language of the law.
– We are always by your side and you can always count on us. Our firm is called H24 Criminal Lawyer because we always operate 7 days a week, 24 hours a day, every day at any time of the day or night.
Read our other articles on this topic:
- DO YOU HAVE LEGAL ISSUES IN ITALY ? CONTACT OUR ITALIAN LAW FIRM !
- Legal assistance and advice in Italy. The Criminal Lawyer H24 Italian Law Firm
- Extradition in Italy: cannot be granted in case of risk of violation of human rights
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