Investigation on the European Arrest Warrant and Extradition

Investigation on the European Arrest Warrant and Extradition

Summary Document

EUROPEAN ARREST WARRANT (E.A.W.) AND EXTRADITION

Presentation of the statistical survey

on the jurisprudence of the Court of Appeal of Bologna

Establishment of the Data Bank 2006-2019

Training conferences organised by the Fondazione Forense Bolognese via webinar, together with the Bologna Criminal Chamber “Franco Bricola”, Eurispes and under the patronage of the Union of Italian Criminal Chambers (UCPI).

October 19, 2020 3.00-6.00 pm                          December 10, 2020 3.00-6.00 pm

Why the database and statistical survey was carried out

The aim of the survey carried out by the Europe Observatory of the Criminal Chamber “Franco Bricola” of Bologna in cooperation with Eurispes is to be able to deal “closely” with a subject that affects the executive and implementation phase of punishment in the European and international sphere. Through careful examination, our Judicial Authority either endorses or does not endorse the request coming from a European State (EAW) or from another foreign country (Extradition).

Starting from the territorial reality – the Court of Criminal Appeals of Bologna with regional jurisdiction – we collected all the measures issued from 2006 to 2019, through which we got to know how the Court dealt with the instruments of so-called judicial cooperation by deciding on the necessary precautionary and executive measures.

With Law 69 of April 22, 2005, Parliament approved the new provisions on the European Arrest Warrant and surrender procedures between Member States, implementing the European Council Framework Decision 2002/584/JHA. It was therefore decided to carry out monitoring from 2006.

Establishing a database and carrying out a statistical survey on the orders issued is intended to be a way of turning the spotlight on actual practice, setting out a number of fixed points to open up comparison and vigilance: only through a real knowledge of the content of the orders issued by our territorial court over the years on European arrest warrants and extraditions can we attempt to “get our hands” as careful operators on a delicate subject, that of criminal executions in the European and international sphere.

Carrying out, perhaps for the first time in Italy, a monitoring of these measures in the Emilia Romagna Region, not limiting itself to a simple collection of decisions but trying to assess the results also in statistical terms, has the ambitious objective of maintaining if not even drawing attention to a delicate area so that the Europe of rights is established as such with full respect for them through the practice of a fair trial, respect for the individual, in consonance with the fundamental rights ECHR.

In addition, monitoring allows us to understand where the protection of rights stands in the European and international arena.

It has been said, with Law No. 69 of 2005, the European Framework Decision 2002/584/JHA is implemented in Italy. The European Arrest Warrant (EAW) constitutes the first concrete application in the criminal field of the so-called principle of mutual recognition, the foundation of judicial cooperation.

It therefore opens up a path that makes it easier to execute a sentence or arrest a subject.

Particular attention must therefore be paid to whether the requirements that make the use of the EAW legitimate are fully met and whether this is not the case:

1. on the basis of discriminatory acts such as punishing a person on the basis of sex, race, religion, ethnicity, nationality, language, political opinions, sexual orientation;
2. disapplying the rules of due process and principles guaranteed by law (fair trail);
3. in the absence of risk of the extradited person being subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.

In the monitoring and collection of all orders issued, both for EAWs and extraditions, the numbers found are no small matter.

The requested measures concerned more than 500 subjects, 45 countries, with acceptance (i.e. surrender) and rejection outcomes changing over time:

• EAWs: from an initial number in 2006 of just over a dozen to an increasing number approaching 50 EAWs in the year 2019, with an overall acceptance of 64%;
• EXTRADITIONS: from an initial number in 2006 of four requests to a number exceeding 20 requests in the year 2019, with an overall acceptance of around 80%.

Here is the data:

European Arrest Warrants

The subjects undergoing a surrender request procedure for precautionary measure (so-called procedural EAW) or for execution of sentence (so-called executive EAW) between 2006 and 2019, in the regional context, were 369.

The subjects were men in 91.1% of the cases and women in 8.9%; adult offenders made up 97.3% of the total. The nationality of the EAW, i.e. the European State issuing it, is Romanian in almost half of the cases (48.9%). Regarding the nationality of the subjects submitted to an EAW, 90.2% are foreigners, 9.8% Italians; the most represented foreign nationalities are, in the first place, Romanian (59.6%), followed, with much smaller percentages, by Polish (8.1%), Albanian (4.8%), Tunisian (3%), Moldavian (3%).

As for the type of measure, in 65.8% of cases it is an executive EAW (art. 28, par. 1, lett. b), Law 69/2005), in 34.2% it is a procedural EAW (also called precautionary EAW, art.28. par. 1, lett. A, Law 69/2005).

Examining the typology of offences ex art. 8 L.69/2005, one finds 43.9% of offences against property – the most frequent case –, 16.9% of offences against the person, 11.1% of offences against the economy and public faith, 10.5% of offences related to drugs, 9.5% of offences against the personality of the State/socialist/public order, 6.1% of offences related to immigration, only 1% of offences against the Public Administration.

In detail, among crimes against property, organised theft/robbery prevails (61.5%), followed by fraud (26.2%). Among offences against the person, voluntary manslaughter/serious bodily harm is by far the most frequent (44%), followed by the exploitation of prostitution (20%), while among offences against the economy and public faith, almost half of the cases concern the falsification of administrative acts and documents and a third the trafficking of false documents.

Concerning the type of defence, the defence of trust (41.3%) prevails over the defence of the office (11.5%) – considering, however, that 47.3% of the cases consulted do not show this data.

Turning then to the evaluation of the defence petition, in more than half of the cases (59.8%) it is the hypothesis of the so-called “entrenchment” as a defence motive that concerns the Italian citizen, with execution in Italy or a foreign citizen but entrenched in Italy; followed, with a less high frequency, by the existence of a serious danger of death penalty, torture or inhuman/degrading punishment/treatment (8.5%), the lack of a fair trial or the respect of minimum rights (art. 6 ECHR + art.2 No.7 ECHR) (4.9%), the involvement of a minor (aged 14/under 18 and other) (4.3%), if criminal proceedings are under way in Italy against the wanted person for the same fact on which the EAW is based, excluding the hypothesis that the European Arrest Warrant concerns the execution of a final sentence issued in a Member State of the European Union (4.3%), finally, the lack of compliance with the maximum limits of pre-trial detention (3.7%).

The final outcome of the EAW: in 64% of the cases, the request was accepted by the Bologna Court of Appeal, in 36% it was refused.

The acceptance is for 88.1% of the cases “full”, i.e. the subject is delivered to the State that issued the EAW, for 11.9% “particular”, in the sense that it is the so-called compulsory delivery (the cases of art. 8 of Law 69/2005), or there is the consent of the subject concerned by the EAW, or a postponement is ordered to allow the trial in Italy or to serve in Italy a different crime from the one of the EAW (art. 24 Law 69/2005).

In the area of refusals, for 62.9% it is a refusal for reasons ex art. 18 from 2005 to 2010 and 18 bis L. 69/2005, for 12.6% for the lack of conditions under art. 6 and 16 L.69/2005, for 3.5% for the lack of conditions under art. 19, L.69/2005 (from 2005 to 2016), for 21% for other reasons (specified).

Specifically, in the area of refusal (62.9%), assessing specifically the reasons, once again a large margin concerns the issue of the so-called “rooting” for both Italian citizens, with execution in Italy, and foreign citizens rooted in Italy, for 58.9%, followed with a large gap for 8,9% by minors (aged 14/under 18 and other), for 6.7% by persons who for the same fact which is the basis of the EAW are undergoing criminal proceedings in Italy (always excluding the hypothesis in which the European Arrest Warrant concerns the execution of a final sentence issued in a Member State of the European Union), and lastly for 5.6% the case where Italian law does not allow prosecution for the same offences committed outside the territory of the issuing Member State.

Finally, examining the cassation appeal filed against the decision of the Court of Appeal, 26.7% were rejected, 20.8% were inadmissible, 10% were upheld, and 7.5% were referred back to the Court (with 35% not detectable from the text).

Extraditions

The subjects for whom extradition was ordered in the period 2006-2019 amounted to 148 and were predominantly men: 81.8%, compared to 17.6% women (0.6% not detectable).

Adults make up 98.6% of the total, minors 1.4%.

The requesting State is Albania in 18.2% of cases, Moldova in 13.3%, Romania in 11.9%, Poland in 9.2%, Ukraine in 7.9%, but many other States have made requests.

The most frequent nationalities of the subjects are Albanian (19%), Romanian (17.7%), Moldovan (10.9%), Polish (7.5%), Ukrainian (7.5%).

Regarding the type of measure, the data indicate that 64.6% are enforceable and 35.4% “precautionary/provisional”.

The type of crime sees a prevalence of offences against property (40.2%), followed by offences against the person (25.9%); with smaller percentages, followed by offences against the personality of the State/social order/public order (8.6%), offences against the economy and public faith (7.5%), and drug offences (6.9%).

Defence is predominantly in confidence (64.6%), less frequently in the public interest (8.8%) (26.5% not detectable).

Considering the defence petition, in 42.6% of the cases it is “political offence (art. 8 penal code)”, in 25% it is “request to serve the sentence in Italy”, in 20.6% it is “violation of the fundamental rights of the person (unfair trail)”, in 7.4% it is “health reasons/age/risk of exceptionally serious consequences” for the reference to Law 149/2017 (art. 705 lett.c bis).

The final outcome is acceptance in the vast majority of cases (78.9%) and rejection in 21.1%, just over a fifth.

As for the appeal in cassation, inadmissibility is noted in 40.6% of cases, rejection in 29.7%, while acceptance is only in 4.7% of cases, with 23.4% not detectable in the decision.