Post-Brexit Arrest Warrant and Fundamental Rights Review: Commentary on Cassation Ruling No. 8851/2025

The Court of Cassation, with decision No. 8851 of February 28, 2025 (filed March 3, 2025), has annulled and remanded a ruling by the Court of Appeal of Rome concerning the extradition of a citizen wanted by the United Kingdom. The judgment, issued by the Sixth Criminal Section and relating to the new cooperation mechanism introduced by the EU-UK Partnership Agreement of December 24, 2020, is of particular interest because it reaffirms the active role of the Italian judge in protecting fundamental rights, even beyond the European Union.

The Post-Brexit Regulatory Framework

Following the United Kingdom's exit from the EU, the European Arrest Warrant (EAW) no longer applies directly. In its place operates Title IX of the Partnership Agreement, which retains a logic of swift surrender, but without the traditional review by the Court of Justice. However, the following remain binding:

• Law No. 69 of April 22, 2005, on the recognition of foreign restrictive measures;
• The European Convention on Human Rights (ECHR);
• The Charter of Fundamental Rights of the EU (Charter of Nice), referred to by Article 524 of the Agreement.

It is within this framework that the Court of Cassation re-examined the extradition request for D. P. M., submitted by the British authorities.

In the context of an arrest warrant issued by the United Kingdom under the so-called Partnership Agreement of December 24, 2020, the need to ensure the physical presence of the defendant in criminal proceedings against him does not exempt the Italian judicial authority, as the executing State, from verifying compliance with the principle of proportionality and the absence of a real risk of violation of one of the fundamental rights recognized by the ECHR and/or the Charter of Nice. Therefore, if it deems that there has been a breach of the aforementioned principle or a violation of such rights, it is obliged not to proceed with the surrender.

Commentary: The ruling clarifies that, even outside the EAW framework, surrender is not automatic. The Italian judge must assess whether the measure is proportionate to the seriousness of the offense and whether, in concrete terms, there is a danger of violations of rights such as the prohibition of inhuman treatment (Article 3 ECHR) or respect for private and family life (Article 8 ECHR). In the absence of such guarantees, the request must be rejected.

The Principle of Proportionality and Inviolable Rights

The Court of Cassation refers to a line of case law (rulings No. 34466/2021, 31862/2021, 47704/2022) that has progressively broadened the scope of ex ante review regarding respect for fundamental rights. A mere assertion that the trial must be held is not sufficient; it is necessary to verify whether detention abroad is unavoidable and whether less intrusive measures exist (e.g., videoconferencing or rogatory examination).

On a substantive level, Article 1 of Law 69/2005 requires that the execution of foreign restrictive measures does not violate the supreme principles of the legal system; the Constitutional Court has repeatedly emphasized (ruling 143/2022) that the protection of inviolable rights prevails over any need for cooperation.

Implications for Defense and Judiciary

The ruling offers relevant operational insights:

• The defense counsel may raise specific prison conditions in the United Kingdom, leveraging CPT reports or previous ECHR rulings;
• The public prosecutor must attest to the procedural guarantees offered, including transfer times and detention regimes;
• The judge must provide positive reasoning on the absence of risks, under penalty of the nullity of the surrender order.

Furthermore, the judgment reaffirms the possibility of conditioning surrender on written diplomatic guarantees, for example, regarding defense access to case files or the maximum duration of pre-trial detention in the UK.

Conclusions

Cassation ruling No. 8851/2025 represents a decisive step towards a model of criminal cooperation that is attentive to individual rights, even in the post-Brexit era. The message is clear: the European integration of fundamental rights does not stop at customs borders. Legal professionals, tasked with balancing repressive efficiency and the protection of human dignity, now have an additional jurisprudential tool to safeguard this delicate balance.