Post-Brexit arrest warrant and fundamental rights review: comment on Cassation n. 8851/2025
The Court of Cassation, with decision no. 8851 of 28 February 2025 (filed 3 March 2025), annulled with referral a decision by the Court of Appeal of Rome concerning the extradition of a citizen wanted by the United Kingdom. The ruling, issued by the Sixth Criminal Section and relating to the new cooperation mechanism introduced by the EU-UK Partnership Agreement of 24 December 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
After the United Kingdom's withdrawal from the EU, the European Arrest Warrant (EAW) no longer applies directly. In its place operates Title IX of the Partnership Agreement, which maintains a logic of swift surrender, but without the traditional review by the Court of Justice. However, the following remain binding:
- Law no. 69 of 22 April 2005, on the recognition of foreign restrictive measures;
- The European Convention on Human Rights (ECHR);
- The Charter of Fundamental Rights of the EU (Nice Charter), 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 based on the so-called Partnership Agreement of 24 December 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 State of execution, from verifying compliance with the principle of proportionality and the absence of a real risk of violation of one of the fundamental rights recognised by the ECHR and/or the Charter of Nice. Therefore, if it considers 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.
Comment: the maxim clarifies that, even outside the EAW, extradition is not automatic. The Italian judge must assess whether the measure is proportionate to the seriousness of the offence 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 (judgments no. 34466/2021, 31862/2021, 47704/2022) that has progressively expanded the scope of ex ante review of fundamental rights. A mere allegation that the trial must be held is not sufficient: it is necessary to verify whether detention abroad is unavoidable and whether less burdensome measures exist (e.g., videoconferencing or rogatory interrogation).
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 stressed (judgment 143/2022) that the protection of inviolable rights prevails over any need for cooperation.
Implications for defence and the judiciary
The ruling offers relevant operational insights:
- the defence counsel may raise specific prison conditions in the United Kingdom, drawing on CPT reports or previous ECHR rulings;
- the public prosecutor must attest to the procedural guarantees offered, including transfer times and detention regime;
- 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 extradition on written diplomatic guarantees, for example, regarding defence access to documents or the maximum duration of pre-trial detention in the UK.
Conclusions
Cassation n. 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, called upon to balance repressive efficiency and the protection of human dignity, now have an additional jurisprudential tool to safeguard this delicate balance.
