European Arrest Warrant: The Court of Cassation and the Importance of Informed Consent (Cass. Pen. No. 19487/2025)

The European Arrest Warrant (EAW) is a fundamental instrument for judicial cooperation among European Union Member States, aimed at simplifying and accelerating the procedures for surrendering wanted persons for serious offences. However, its effectiveness cannot disregard the full guarantee of individuals' fundamental rights. The Criminal Court of Cassation recently ruled on this delicate balance with judgment no. 19487 of 2025, offering crucial clarifications on the validity of consent to surrender, an often underestimated but paramount aspect.

The European Arrest Warrant: An Instrument of Judicial Cooperation

The EAW, introduced by Framework Decision 2002/584/JHA and transposed into Italian law by Law no. 69 of 22 April 2005, revolutionised traditional extradition procedures, replacing them with a more streamlined and direct mechanism. The objective is to ensure that a person investigated or convicted in one Member State can be quickly surrendered to another Member State to stand trial or serve a sentence. In this context, the consent of the requested person plays a central role, as it can significantly expedite the procedure.

The Supreme Court's Ruling: Consent is Valid Only if Fully Informed

Judgment no. 19487 of 2025, issued by the Sixth Criminal Section of the Court of Cassation, presided over by G. D. A. and with F. D. A. as rapporteur, dealt with the case of D. P., for whom the Court of Appeal of Genoa had ordered surrender. However, the Supreme Court annulled the Court of Appeal's decision with referral, highlighting serious deficiencies in the process of obtaining consent. The core of the decision is encapsulated in the following maxim:

In matters of European Arrest Warrants, deficiencies in the information provided to the requested person regarding the procedural or executive nature of the warrant, as well as the consequences and irrevocability of consent, prevent such consent from being considered validly given.

This statement by the Court of Cassation is of fundamental importance. It clarifies that consent to surrender, to be considered validly given, cannot be a mere formality. It must be the result of a conscious and informed choice, ensuring that the individual fully understands their situation and the implications of their decision. In other words, it is not enough to ask "do you wish to be surrendered?"; the person must be fully and exhaustively informed of all relevant aspects.

The Court specifically identifies three essential elements on which information must be impeccable:

• Nature of the Warrant: It is crucial for the person to understand whether the EAW is "procedural" (i.e., for the purpose of a trial or preliminary investigations) or "executive" (to serve an already imposed sentence). This distinction is fundamental, as the associated guarantees and rights can vary significantly between the two types.
• Consequences of Consent: The individual must be aware of all the practical and legal implications arising from their consent to surrender. This includes potential judicial outcomes, detention conditions in the issuing country, and any other aspect that may affect their freedom and rights.
• Irrevocability of Consent: An often underestimated aspect is the irrevocability of consent once given. The person must be clearly informed that, once the will to be surrendered has been validly expressed, this decision cannot be withdrawn. Such irrevocability makes the need for complete and accurate initial information even more stringent.

These requirements are in line with the principles enshrined in Law no. 69/2005, particularly Articles 10 and 14, which govern the surrender procedure and the methods of expressing consent, as well as with European case law protecting the right to a fair trial and personal liberty.

Protection of Fundamental Rights and Practical Implications

The Court of Cassation's judgment is part of a consolidated line of case law (as already affirmed in previous rulings such as no. 44056 of 2014 and no. 4864 of 2016), which places the protection of individuals' fundamental rights at its core. The lack of adequate information undermines the validity of consent at its root, rendering it a flawed act and consequently invalidating the entire surrender procedure. For legal professionals, this ruling serves as a reminder to ensure maximum transparency and completeness in the information provided to the requested person, so that their decision is genuinely free and informed. The annulment with referral of the Genoa Court of Appeal's decision highlights how informational deficiencies can lead to the nullity of consent and the need to re-examine the case, with a prolongation of time and a significant impact on the procedure.

Conclusions

Judgment no. 19487 of 2025 by the Court of Cassation represents a firm point in Italian jurisprudence on the European Arrest Warrant. It strongly reiterates that international judicial cooperation, while necessary, cannot disregard the scrupulous respect for individuals' fundamental rights, foremost among which is the right to fully informed consent. For citizens and lawyers alike, this ruling underscores the importance of qualified and timely legal advice, capable of ensuring that any decision made in such sensitive contexts is based on a clear and complete understanding of all implications. Our Law Firm is always available to offer specialised assistance and advice in matters of international criminal law and European Arrest Warrants, ensuring the full protection of our clients' rights.