European Arrest Warrant: The Court of Cassation on the Jurisdiction of the Issuing Authority (Judgment No. 19671/2025)

The European Arrest Warrant (EAW) represents a fundamental instrument in judicial cooperation between the Member States of the European Union, aimed at simplifying and speeding up the procedures for handing over wanted persons for the execution of a sentence or for the commencement of criminal proceedings. However, its application often raises complex issues, particularly regarding the limits within which the judicial authority of the executing State can review the decisions of the issuing authority. The recent ruling of the Court of Cassation, Judgment No. 19671 of 21 May 2025, intervenes on this delicate balance, offering essential clarifications on the deducibility of the lack of jurisdiction of the issuing authority.

The European Arrest Warrant: Principles and Objectives

Introduced by Council Framework Decision 2002/584/JHA of the European Union and implemented in Italy by Law No. 69 of 2005, the EAW is based on the principle of mutual recognition of judicial decisions in criminal matters. This means that the decision of a judicial authority of a Member State must be recognised and executed by the authorities of other Member States, with a very limited margin of discretion. The primary objective is to eliminate the delays and complexities of traditional extradition procedures, promoting a rapid and effective response to transnational crime. Mutual trust between judicial systems is the cornerstone of this mechanism, implying that, as a rule, the validity of decisions taken by another Member State should not be questioned.

The Cassation Ruling: Limits to Refusal of Execution

Judgment No. 19671 of 2025 of the Supreme Court, presided over by G. D. A. and rapporteur F. D'A., addresses a crucial aspect: the possibility for the executing authority to raise an objection regarding the lack of jurisdiction of the authority that issued the European Arrest Warrant. The Court rejected the appeal filed by the defendant F. S., upholding the decision of the Court of Appeal of Milan. The core principle enunciated by the Cassation is clear and aligns with European and national case law, reiterating the exhaustive nature of the grounds for refusing the execution of the EAW.

In matters of procedural European Arrest Warrants, the lack of jurisdiction of the issuing authority cannot be raised before the executing authority, except within the limits of international lis pendens, given the exhaustive nature of the grounds for refusal of execution.

This maxim is of fundamental importance. It establishes that, in general, the Italian judicial authority (the executing authority) cannot review the competence or jurisdiction of the foreign judicial authority (the issuing authority) that issued the EAW. This limitation derives directly from the principle of mutual recognition and the very nature of the EAW, which provides for an exhaustive list of grounds on which execution may be refused, as indicated in Article 18 of Law No. 69 of 2005 and subsequent amendments, some of which have been subject to interventions by the Constitutional Court (e.g., Article 18 bis, paragraph 1, letter A, as referred to in the judgment).

The underlying logic is to prevent each executing State from re-examining the merits or procedural validity of the issuing State's decision, thereby transforming the surrender procedure into a new trial or an investigation into the correct application of the requesting State's domestic law. This would seriously compromise the effectiveness and speed of the EAW system. The Court of Cassation therefore reiterates the need to strictly adhere to the grounds for refusal expressly provided for by the legislation, which do not include a general lack of jurisdiction of the issuing authority.

The Exception of International Lis Pendens

The only opening, as clarified by the judgment, is "within the limits of international lis pendens". But what exactly does this mean? International lis pendens occurs when criminal proceedings for the same facts and against the same person are already pending in another Member State or have already been the subject of a final judgment. In such cases, the execution of the EAW may be refused to avoid a double trial or a double penalty (the "ne bis in idem" principle). This is a strictly defined exception aimed at protecting the fundamental rights of the individual while maintaining the efficiency of the EAW system.

Practical Implications and Protection of Rights

The Supreme Court's decision has significant practical implications for legal professionals. In summary, defence arguments based on the alleged lack of jurisdiction of the authority that issued the EAW will only succeed if they fall within the well-defined category of international lis pendens. This strengthens legal certainty and the effectiveness of judicial cooperation, but at the same time requires greater attention to the rights of the defence in the issuing State.

For the defendant, the protection of their procedural guarantees must be primarily sought in the State that issued the warrant. The executing authority is, in fact, primarily called upon to verify the existence of the formal conditions for surrender and the absence of exhaustive grounds for refusal, which include, for example:

• The existence of a prior judgment for the same facts.
• The absence of an age limit or the non-prosecutability due to amnesty or pardon in the executing State.
• The violation of the fundamental rights of the person, in exceptional and well-documented cases, such as the real possibility of suffering inhuman or degrading treatment.
• The statute of limitations for the offence according to the law of the executing State, in certain cases.

A lack of jurisdiction, understood in a broad sense, is not included in this exhaustive list, unless it results in a situation of international lis pendens. This distinction is fundamental to understanding the limits of the executing authority's intervention and the central role of the principle of mutual recognition.

Conclusions

Judgment No. 19671 of 2025 of the Court of Cassation consolidates the case law on the European Arrest Warrant, reiterating strict adherence to the principle of mutual recognition and the exhaustive nature of the grounds for refusal of execution. It clarifies that the lack of jurisdiction of the issuing authority cannot be invoked as a ground for refusal, except in the limited exception of international lis pendens. This ruling is an important piece in the puzzle of European judicial cooperation, balancing the need for efficiency in combating transnational crime with the safeguarding of fundamental rights, emphasizing the need for procedural guarantees to be primarily ensured in the State that initiated the criminal proceedings. For lawyers and legal professionals, this means focusing attention on the few but significant exceptions provided for, operating with an awareness of the limits imposed on the review by the executing authority.