An EAW issued exclusively for the purpose of subjecting the person requested to be surrendered to acts of investigation (in this case, interrogations and comparisons) cannot be executed, because in this way the coercive instrument would be used for investigative purposes, which are not provided for by the Framework Decision of 13 June 2002 and the relative implementing law no. 69 of 22 April 2005: an execution of a European arrest warrant for the purposes of the exercise of criminal prosecution in relation to the measure aimed at allowing the taking of an interrogation and accompaniment for investigative purposes in order to carry out the interrogation and formal recognition may be admitted, but acts of investigation to be carried out have to be specifically identified, determined ab origine, and not absolutely indeterminate.
The inadmissibility of a European arrest warrant for exclusively investigative and indeterminate reasons is, moreover, confirmed by Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 on the European Investigation Order in criminal matters.
Systemic and generalized deficiencies of the Polish judicial system can not justify the refusal of surrender in the absence of evidence of individual prejudice for the defendat, being insufficient for that purpose the secondment of the judge who signed the EAW.
(unofficial automatic translation)
Here the definitive decision which orders surrender.
Court of Cassation
Section VI No. 14937 Year 2022
President: ANNA PETRUZZELLIS
Rapporteur: D'ARCANGELO FABRIZIO
Hearing 14/04/2022
JUDGMENT
on the appeal brought by
MAP , born in Poland on **
against the sentence of March 3, 2022 issued by the Court of Appeal of Milan;
having regard to the deeds, the judgment under appeal and the appeal;
having heard the report submitted by Counselor Fabrizio D'Arcangelo;
having heard the opinion of the Public Prosecutor, in the person of the Deputy Attorney General, Giuseppe
Riccardi, who concluded by requesting the rejection of the appeal.
Having heard the opinion of Attorney Nicola Canestrini, who requested that the appeal be accepted;
FACTS
1. With the appelaed sentence the Court of Appeal of Milan ordered the surrender of APM to the Polish judicial authority in execution of the execution of the European arrest warrant issued on 12 June 2019 by the Court of Siedlce for the crime referred to in Article 294, par. 1, of the Polish Criminal Code (receiving stolen goods), aggravated, pursuant to Article 294 of the same code, due to the "significant asset value" of the goods subject to the crime.
2. Lawyers Bozena Katia Kolakowska and Nicola Canestrini, in the interest of M, appeal against this sentence and request its annulment, putting forward four grounds of appeal, namely:
(a) failure to comply with or misapplication of the criminal law, in relation to Articles 2 of Law no. 69 of 2005, 6 of the European Convention on Human Rights (ECHR), 19 of the Treaty of the European Union (T.U.E.), 47 of the Charter of Fundamental Rights of the European Union (CDFUE), 111 of the Constitution and the lack of reasoning regarding the absence of a risk of violation of the fundamental right to a fair trial before a court of law. fundamental right to a fair hearing before a court established by law. The applicant states that the European Commission in the Report on the Rule of Law 2021, the Court of Justice of the European Union, in the judgments of March 2 2021 (rendered in the Ab case), July 25, 2018 (rendered in the LM case of July 25, 2018) and February 22, 2022 (rendered in the X and Y cases) and the Edu Court in the Reczkpwicz v. Poland ruling of July 22, 2021 and the Group of States against Corruption (GRECO) have highlighted the lack of impartiality and independence of the Polish judiciary, as it is subject to influences from the executive power.
The European Union has, moreover, recently opened an infringement procedure, pursuant to art. 7, par. 1, of the EU Treaty against Poland for such violations, suspending the disbursement of European funding of the Next
Generation EU (so-called Recovery Fund).
These findings, in the opinion of the defenders, should have induced the Court of Appeal of Milan to refuse the surrender, even regardless of the evidence of a serious risk of individual repercussions on the fundamental rights of the person
requested in surrender.
The Court of Appeal of Milan, moreover, from the point of view of the risk of individual prejudice to the applicant, had overlooked the peculiar procedure for the appointment of Polish judges, which is not free from interference by the executive power, and that the judge of the District Court of Siedlce, who had issued the European arrest warrant, had adopted the act while he was on a period of secondment ordered by the Polish Ministry of Justice.
The appellant points out that, according to the findings of the Court of Justice in its judgment of 16 November 2021, it is precisely the power of detachment of magistrates, conferred by Article 77 of the Law on the Organisation of Ordinary Courts on the Polish Minister of Justice, on account of the fact that it can be exercised without reason, without time limits and without being open to review, that constitutes one of the moments in which the independence of the Polish judiciary from the executive power is most lacking.
The lack of independence is, moreover, demonstrated by the fact that the Polish judge did not revoke the European arrest warrant, even though he ordered the restitution to M of part of the seized goods, because he considered that their criminal origin had not been proven.
b) failure to comply with or misapplication of criminal law, in relation to Article 2 of Law no. 69 of 2005, Articles 2-3 of the ECHR, Article 4 of the CFREU and the lack of reasoning regarding the absence of a risk of violation, in case of delivery, of M's right not to be subjected to criminal proceedings.
delivery, of the right of M not to be subjected to inhuman and degrading treatment, in violation of Articles 2-3 ECHR and Article 4 of the Charter of Fundamental Rights of the European Union, because of the conditions of detention in Poland and because of the existence, in that State, of a proven and general problem related to the abuses perpetrated by the police forces on persons in their custody.
The defense had, in fact, deduced to the Court of Appeal, how the Committee for the Prevention of Torture and Inhuman and Degrading Treatment (CTP), established within the Council of Europe, had documented in two separate reports,
of 2017 and 2020 respectively, the abuses of the police authority on persons subject to their custody and the conditions of prison overcrowding in that State, also found in some judgments of the Edu Court, such as the Orchowski v. Poland ruling.
In the appellant's opinion, the Court of Appeal of Milan, by rejecting the complaint as "generic, referring to a situation without any specific reference to the position of M" would have violated the principle of law constantly affirmed by the Court of Justice, starting from the Aranyosi-Caldararu judgment of 2016, according to which, where the judicial authority of the
State of execution is confronted with objective elements denoting a general violation in the issuing State of a fundamental right, for the purpose of verifying whether such a general violation is likely to have repercussions in the concrete case,
it must request additional information in order to ascertain the concrete conditions under which the person requested to be surrendered will be detained.
c) the non-observance or misapplication of the criminal law, in relation to Article 5 TEU, Articles 6, 7, 52 of the CFREU, Articles 5-8 of the ECHR, and the lack of motivation with regard to the violation of the principle of proportionality by the Polish judicial authority in issuing to M the European arrest warrant.
The applicant submits that the principle of proportionality, enshrined in Article 5(4) of the Treaty on European Union, Articles 6 and 7 of the Charter of Fundamental Rights of the European Union and Articles 5 and 8 of the ECHR, is a fundamental principle of European Union law and requires that the aim underlying each action must be pursued in the manner that the least possible interference with the fundamental rights of the person concerned.
The principle of proportionality should, moreover, be understood as recalled by Article 1(3) of Framework Decision 2002/584/JHA on the European Arrest Warrant and is also affirmed by recital 26 of Directive 2014/41/EU on the European Investigation Order in criminal matters.
In the present case, the Polish judicial authority justified the European arrest warrant on the basis of a purely investigative requirement (that of carrying out investigative acts which, under Polish law, require the necessary presence of the suspect), which, however, the issuing State could legitimately have pursued in order to comply with the European arrest warrant.
However, the issuing State could have legitimately pursued this requirement by means of a less invasive instrument, such as a European Investigation Order concerning the request for a hearing by videoconference.
d) failure to comply with or misapplication of criminal law, in relation to art. 7 of Law no. 69 of 2005, with regard to the existence of the requirement of double criminality in the present case, given that the conduct charged to Mendelka would not be subsumed in any hypothesis of crime provided by the Italian law.
Italian law.
The appellant argues that the offence provided for by Article 291 of the Polish Criminal Code, unlike the offence of receiving stolen goods provided for by the Italian legislation, incriminates "anyone who acquires goods obtained by means of an unlawful act..." and this connotation of unlawfulness is broader than the notion of "goods deriving from an offence", which appears in the Italian legislation.
This connotation of illegality is broader than the notion of "goods deriving from a crime", which appears in art. 648 of the Italian Penal Code and which, on the contrary, excludes from the perimeter of the criminally relevant conduct the acquisition of goods which are illegal only from an administrative or civil point of view.
Given, therefore, that the notion of "illicit act" is not entirely coincident with the material element of the crime of receiving stolen goods, in this case it would be problematic to check the actual existence of the extreme of "double criminality" required by the discipline of the European arrest warrant.
In the detailed list contained in the European Arrest Warrant, moreover, only eight of the one hundred and fifty-one assets indicated as the object of the criminal conduct are expressly indicated as proceeds of crime and, therefore, the contested conduct, in its entirety, would not constitute a crime.
The appellant, in the alternative, asks to allow the delivery only limited to the goods declared as proceeds of crime.
3. In proximity of the hearing Nicola Canestrini, lawyer, filed additional grounds, claiming the non-compliance or misapplication of the criminal law and, in particular, of art. 2 Law 69/2005, 6 ECHR, 19 E.U.T., 47 CDFUE and 111 of the Constitution, and the lack of motivation regarding the absence of a risk of violation of M's right to a "fair trial" in case of delivery (ground for appeal no. 1).
The appellant states that further evidence of the systemic lack of independence of the issuing judicial authority is provided by the judgment of the Polish Constitutional Court of 10 March 2002, following the lodging of the appeal, in which the Court ruled that Article 6(1) of the ECHR, in so far as it guarantees the right of individuals to a fair trial in the event of surrender (ground of appeal No 1).
in which it guarantees the right of individuals to have their case examined by a judge "pre-established by law", is incompatible with the Constitution of Poland, and therefore can no longer be applied from now on.
CONSIDERED IN LAW
1. The appeal must be granted to the extent specified below.
2. It should be noted, as a preliminary point, that art. 18 of Legislative Decree no. 10 of February 2, 2021, amended art. 22 of Law no. 69 of 2005 by admitting the appeal in cassation against the sentence issued by the court of appeal on the request for surrender in the discipline of the European arrest warrant only "for the reasons, contextually enunciated, referred to in letters a), b) and c) of paragraph 1 of article 606 of the Code of Criminal Procedure" and, therefore, not for flaws in the motivation.
3. With the first plea, the appellant alleges failure to comply with or misapplication of the criminal law, in relation to articles 2 of Law no. 69 of 2005, 6 of the European Convention on Human Rights (ECHR), 19 of the Treaty on European Union (TEU. ), 47 of the Charter of Fundamental Rights of the European Union (CDFUE), 111 of the Constitution, and the lack of motivation regarding the erroneous assessment that there is no risk of violation of the fundamental right to a fair trial before a judge pre-established by law.
4. The plea is unfounded.
The Court of Justice of the European Union has acknowledged that the executing judicial authority may, in exceptional circumstances and under certain conditions, refuse to execute a European arrest warrant where there is a real risk that the surrender of the person concerned may lead to an infringement of his fundamental right to be tried by a court of law.
fundamental right to be tried by an impartial tribunal enshrined in the second paragraph of Article 47 of the Charter, because of concerns about the independence of the judiciary in the issuing State (Court of Justice, 25 July 2018, C-216/18 PPU, LM. S).
In particular, the Court of Justice, in this ruling, has stated that "Article 1(3) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, must be interpreted as meaning that, where the executing judicial authority, called upon to decide on the surrender of a person who is the subject of a European arrest warrant issued for the purposes of criminal prosecution, has evidence, such as that contained in a reasoned proposal from the European Commission, adopted pursuant to Article 7(1) TEU, which shows that there is a real risk of violation of the fundamental right to a fair trial guaranteed by the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, owing to systemic or generalised deficiencies in the independence of the judiciary of the issuing Member State issuing Member State, that authority must ascertain specifically and precisely whether, in the light of that person's personal situation, the nature of the offence for which he is being prosecuted and the factual circumstances on which the European arrest warrant is based
arrest warrant, and taking into account the information provided by the issuing Member State, in accordance with Article 15(2) of Framework Decision 2002/584, as amended, there are serious and substantiated grounds for believing that, in the event of surrender to the latter State, that person would run such a risk".
Recently, the Court of Justice, sitting in the Grand Chamber, in its judgment of February 22, 2022, in joined cases C-562/21 PPU and C-563-21, responding to two requests for preliminary rulings made by the Rechtbank Amsterdam, in the context of the execution in the Netherlands of two European arrest warrants issued by two Polish regional courts, further clarified the content of the so-called double step approach outlined in the previous judgment.
The Court of Justice has, in fact, clarified the review that is incumbent on the judge requested to execute the arrest warrant and stated "Article 1(2) and (3) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, must be interpreted as meaning that, where the executing judicial authority called upon to decide on the surrender of a person in respect of whom a European arrest warrant has been issued has evidence of systemic or generalised deficiencies concerning the independence of the judiciary in the issuing Member State, in particular as regards the procedure for the appointment of the members of the judiciary, that authority may refuse to surrender that person:
– in the context of a European arrest warrant issued for the purposes of executing a custodial sentence or detention order, only if that authority finds that, in the particular circumstances of the case, there are substantial grounds for believing that, having regard inter alia to the information provided by that person relating to the composition of the panel of judges who heard his or her criminal case or to any other circumstance relevant to the assessment of the independence and impartiality of that panel, there has been a breach of that person’s fundamental right to a fair trial before an independent and impartial tribunal previously established by law, enshrined in the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, and
– in the context of a European arrest warrant issued for the purposes of conducting a criminal prosecution, only if that authority finds that, in the particular circumstances of the case, there are substantial grounds for believing that, having regard inter alia to the information provided by the person concerned relating to his or her personal situation, the nature of the offence for which that person is prosecuted, the factual context surrounding that European arrest warrant or any other circumstance relevant to the assessment of the independence and impartiality of the panel of judges likely to be called upon to hear the proceedings in respect of that person, the latter, if surrendered, runs a real risk of breach of that fundamental right." (Court of Justice, 20/02/2022, in Joined Cases C-562/21 PPU and C-563/21, X and Y, § 103).
Moreover, the jurisprudence of legitimacy was oriented in a similar direction, noting that, on the subject of the European arrest warrant, for the purposes of refusing surrender to a foreign State based on the danger that the person will be subjected to proceedings in violation of the right to a fair trial, it is not sufficient the mere denunciation by the surrendering person of serious systemic deficiencies detected with respect to the issuing State, since it is necessary that he/she allege specific and concrete circumstances that can justify even the mere suspicion
of the unfairness of the proceedings (Sez. 6, no. 15924 of 21/05/2020, Mokrzyci, Rv. 278889 - 01, case relating to a request for surrender from the Polish judicial authorities, in relation to which the applicant had generically complained of the lack of independence.
In this case, the appellant had generically complained about the lack of independence and impartiality of the Polish judicial authorities, without alleging the actual negative impact of such shortcomings with respect to his own proceedings).
In the case in question, the Court of Appeal of Milan properly applied the principles established by the Court of Justice of the European Union and by the case law of legitimacy, pointing out, with certainly not apparent reasoning, that the systemic and generalized deficiencies of the Polish judicial system can not justify the refusal of surrender in the absence of evidence of individual injury to the subject requested in surrender.
In the Court of Appeal's assessment, no "serious and proven" risk of individual prejudice to the applicant's fundamental right to a fair trial before an independent and impartial judge has been demonstrated, also in view of the "common nature" of the alleged offence (receiving stolen goods).
The Court of Appeals has, moreover, congruently found in the judgment under appeal that there is no evidence that the lack of autonomy of the Polish judicial authority has caused concrete prejudice to the conduct of the trial against M and that individual repercussions cannot individual repercussions cannot be inferred from the power of the Polish Minister of Justice to order the secondement of judges.
It does not appear, moreover, that in the present case the measure to second the judge has any connection with the handling of the proceedings pending against M or has been determined by the same.
Moreover, the failure to revoke the European arrest warrant in the face of the partial restitution of the goods seized in favour of the appellant, as proposed, does not appear to be able to demonstrate individual prejudice to the impartiality of the judgement, in that it could well be the expression of a physiological discretionary evaluation of the permanence of the case.
5. For similar reasons, the additional plea submitted by the appellant close to the hearing must be considered unfounded and, therefore, must be rejected.
By that plea the appellant submits that further proof of the systemic lack of independence of the Polish judiciary is to be found in Judgment No 7 of 10 March 2022 of the Polish Constitutional Court, in which it was held that Article 6(1) of the ECHR, in so far as it guarantees the right of individuals to have their case heard by a court of justice, is to be interpreted as meaning that it is not possible for a court of justice to hear a case in which it has been heard by a court of justice.
right of individuals to have their case examined by a judge "pre-established by law", is incompatible with the Constitution of Poland.
As this Court has already pointed out, as long as the discipline of the European arrest warrant is not suspended, according to art. 7, par. 2, E.U.T., with regard to the Member State - the possibility of refusing the surrender must be recognized only "in exceptional circumstances", in which the executing judicial authority ascertains, as a result of a concrete evaluation of the specific case, that the surrender has been carried out by a court that has been appointed by the Member State in question.
outcome of a concrete evaluation of the specific case, that there are serious and proven reasons to believe that the requested person runs, as a result of the surrender, a real risk of violation of his/her fundamental rights (Sez. 2, no. 6633 of 17/02/2021, Mokrzyci, Rv. 280657 - 01, case related to the risk of violation of the rule of law detected by the Resolution of the European Parliament of 17 September 2020 regarding the lack of independence of the judiciary in Poland).
Indeed, recital 10 of Framework Decision 2002/584 states that the implementation of the mechanism of the European arrest warrant may be suspended only in the event of a serious and persistent breach by a Member State of the principles enshrined in Article 2 TEU, including that of the rule of law, established by the European Council pursuant to Article 7(2) TEU, and with the consequences provided for in paragraph 3 of the same Article.
It is only where there is a decision by the European Council, followed by suspension by the Council of the application of Framework Decision 2002/584 in respect of the Member State concerned, that the executing judicial authority would be obliged to refuse automatically to execute any European arrest warrant issued by that Member State.
European arrest warrant issued by that Member State, without having to carry out any concrete assessment of the real risk, incurred by the person concerned, of infringement of the essential content of his fundamental right to a fair trial (Court of Justice, Court of Justice, 25 July 2018, C-216/18 PPU, LM. S, § 7).
6. By the second ground of appeal, the appellant complains of failure to comply with or misapplication of the criminal law, in relation to Article 2 of Law No. 69 of 2005, Articles 2 and 3 ECHR, Article 4 CDFUE and lack of reasoning with regard to the erroneous assessment as to the absence of a risk of infringement of the right of the (defendant) to be subjected to inhuman and degrading treatment in case of surrender.
7. The reason is unfounded.
The defect in reasoning complained of by the appellant is, in fact, insubstantial since the Court of Appeal of Milan, in implementation of the principles affirmed by the Grand Chamber of the Court of Justice in its judgment of 5 April 2016 (404/15, Aaranyosi and C 659/15, Caldararu) and by the jurisprudence of legitimacy (ex plurimis: Cass. Sez. 6 no. 23277 of 1/6/2016, Barbu, Rv 267296), examined the complaints made by the appellant and held that they do not highlight situations of specific and, therefore, individual risk for the appellant.
The judgments of the Edu Court invoked by the appellant (Orchhowski v. Poland and Kauczor v. Poland), moreover, do not refer to the current conditions of the Polish penitentiary system, having been issued in 2009, and the documents of the Committee for the Prevention of Torture and Inhuman and Degrading Treatment (CPT) do not provide a basis for a presumption of innocence. (CPT) do not establish an individual risk in the forms outlined by the jurisprudence of the Court of Justice and the Supreme Court, as they refer primarily to abuses committed in the precautionary phase of the arrest.
Similarly, there is no violation of the law denounced in the grounds of the Court of Appeal of Milan.
The jurisprudence of legitimacy, in several sentences, has recently pointed out that it does not appear necessary to request individualized information on prison conditions in Poland, being sufficient the general information emerging from the report
of the Committee for the Prevention of Torture of the Council of Europe of July 25, 2018, which defined as acceptable the material conditions of police custody institutions (the cells would be of sufficient size and adequately equipped) and only hoped for an improvement of those in prisons (at that time, however, equipped with a space of 3 square meters for each prisoner, i.e. in line with the minimum threshold of individual intramurals space established for the purposes of art. 3 ECHR by the European Court of Human Rights) (ex plurimis: Sez. 6, no.
107266 of 04/23/2022, Danilul; Sez. 6, no. 15924 of 05/21/2020, Mokrzyci, Rv. 278889 - 01; Sez. 6, no. 8081 of 02/25/2021, Kalwajtys).
8. With the fourth reason, the appellant complains about the failure to comply with or the erroneous application of the criminal law, in relation to art. 7 of Law no. 69 of 2005, regarding the erroneous assessment of compliance with the requirement of double criminality in the case in question.
9. The reason is, however, unfounded. According to the constant orientation of this Court, in fact, with regard to the European arrest warrant, in order to meet the condition of double criminality provided for by art. 7, paragraph 1, of I. April 22, 2005, no. 69, it is not necessary that the scheme of the European arrest warrant is in line with the law. 69, it is not necessary that the abstract scheme of the incriminating norm of the foreign system finds its exact correspondence in a norm of the Italian system, but it is sufficient that the concrete case is punishable as a crime in both systems, with no relevance to the possible diversity not only of the sanctioning treatment, but also of the title and of all the elements required for the configuration of the crime (ex plurimis: Sez. 6, no. 27483 of 29/05/2017, Majkowska, Rv. 270405 - 01; Sez. 6, no. 22249 of 03/05/2017, Bernard, Rv. 269918-01; Sez. 6, no. 19406 of 17/05/2012, Ferrari, Rv. 252723-01; Sez. 6, no. 4538 of 01/02/2012, Cozma, Rv. 251790 - 01).
Also following the amendment of art. 7 of law no. 69 of April 22, 2005, as a result of legislative decree no. 10 of February 2, 2021, in order to meet the requirement of dual criminality, which is an essential prerequisite for being able to take place, it is not necessary for the legal qualification and the individual constituent elements of the incriminating cases envisaged by the requesting and requested countries to coincide (Sez. 6, no. 21336 of 26/05/2021, Brocai, Rv. 281509 - 01, in application of the principle, the Court excluded the occurrence of double criminality with reference to contraband conduct framed in Articles 292 and 294 of Presidential Decree no. 43 of January 23, 1973, being crimes decriminalized by Article 1, paragraph 1, of Legislative Decree no. 8 of January 15, 2016).
Declining these consolidated principles in the case in question, it must be noted that the divergence between the case in the Polish criminal code and the Italian one highlighted by the appellant does not allow to exclude the existence of double criminality as defined by art. 7 of Law no. 69 of 2005 and interpreted by the constant orientation of the jurisprudence of legitimacy, since, as correctly pointed out by the Court of Appeal of Milan, the charge concretely formulated against M is easily referable to the internal case of receiving stolen goods.
10. With the third plea, the appellant alleged failure to comply with or misapplication of criminal law, in relation to art. 5 TEU, art. 6, 7, 52 CDFUE, art. 5-8 ECHR, and lack of reasoning with regard to the violation of the principle of of proportionality by the Polish judicial authority in issuing the European arrest warrant against M.
11. The plea can be upheld to the extent set out below. Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States is based on the principle of mutual recognition, of which it was the first concrete expression.
11.1. Article 1(2) of the Framework Decision on the European arrest warrant states that "Member States shall execute every European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision".
The Framework Decision provides for strict exceptions to this rule in the form of mandatory (Art. 3) and optional (Art. 4 and 4-bis) grounds for non-execution.
11.2. The Court of Justice of the European Union has also stated that the primacy of EU law and its effectiveness preclude Member States from introducing ex novo grounds for non-execution or extending the scope of those provided for by the Framework Decision.
The Framework Decision has, in fact, regulated the matter of the limits to surrender in an exhaustive manner and, therefore, it is not possible to impose further restrictions on the execution of a warrant, either through state transposition rules or through the interpretative activity of national judges (Court of Justice, 26/02/2013, in case C-399/11, Melloni, par. 44).
11.3. The European arrest warrant issued by the Polish judicial authority is accompanied by a statement of reasons in which it is specified that the warrant was issued "for the purpose of conducting the investigative proceedings under way at the District Prosecutor's Office in Siedlce..." and it is added that "APM is in hiding from the judicial authorities, outside the national borders, and therefore it is not possible to carry out activities with his participation that are necessary for the investigative proceedings in the case...being conducted by the District Prosecutor's Office in Siedlce".
As far as it appears from the grounds it would seem to be in the presence of a European arrest warrant issued for exclusively investigative needs (moreover unspecified in content and time) and without any reference to the subsequent prosecution.
Article 1, par. 1, of the Framework Decision 2002/584/JHA, however, defines the European arrest warrant as "a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a person sought for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order".
The definition of the European legislator, therefore, does not contemplate a European arrest warrant instrumental to merely investigative needs, since it must always be aimed at the exercise of criminal prosecution.
This Court has, moreover, affirmed that a European arrest warrant issued exclusively for the purpose of subjecting the person requested to be surrendered to acts of investigation (in this case, interrogations and comparisons) cannot be executed, because in this way the coercive instrument would be used for investigative purposes, which are not provided for by the Framework Decision of 13 June 2002 and the relative implementing law no. 69 of 22 April 2005 (Sez. 6, no. 15970 of 17/04/2007, Piras, Rv. 236378-01).
The jurisprudence of legitimacy has, on other occasions, deemed legitimate the handing over in execution of a European arrest warrant for the purposes of the exercise of criminal prosecution in relation to the measure aimed at allowing the taking of an interrogation (Sez. 6, no. 43386 of 11/10/2016, Berdzik, Rv. 268305 - 01), of a confrontation (Sez. 6, no. 51511 of 18/12/2013, Lampugnani, Rv. 258510 - 01) and accompaniment for investigative purposes in order to carry out the interrogation and formal recognition (Sez. 6, no. 45043 of 20/12/2010, Velardi, Rv. 249219).
In these pronouncements, however, the Court has decided cases in which the acts of investigation to be carried out were specifically identified, determined ab origine, and not absolutely indeterminate, as in the present case.
The inadmissibility of a European arrest warrant for exclusively investigative and indeterminate reasons is
exclusively investigative and indeterminate is, moreover, confirmed by Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 on the European Investigation Order in criminal matters.
Recital 25 of the Directive states that "This Directive lays down rules on the performance at all stages of criminal proceedings, including trial, of an investigative measure, where necessary with the participation of the person concerned for the purposes of gathering evidence.
For example, a European Investigation Order may be issued for the temporary transfer of such a person to the issuing state or for the conduct of a hearing by videoconference. However, where such a person is to be transferred to another Member State for the purposes of criminal proceedings, including to appear before a court for trial, a European Arrest Warrant (EAW) should be issued in accordance with Council Framework Decision 2002/584/JHA."
Recital 26 adds that "In order to ensure proportionate use of the EAW, the issuing authority should examine whether an EIO is an effective and proportionate means of conducting criminal proceedings. The issuing authority should consider, in particular, whether issuing an EIO for the purpose of hearing a person under investigation or an accused person by videoconference would be a viable alternative."
These provisions show how, in the law of the European Union, the European Arrest Warrant cannot be issued exclusively for investigative purposes, detached from the exercise of criminal prosecution in the requesting state, since alternative instruments of European cooperation in the common legal area are provided for the pursuit of legitimate investigative purposes.
The objective uncertainty as to the investigative reasons underlying the adoption of the European Arrest Warrant at issue, therefore, requires clarification, through the request for additional information to the issuing authority, pursuant to art. 16 of Law no. 69 of 2005, as to which investigative acts must be carried out with the presence of the person requested to be surrendered, and whether his/her presence is indispensable for the continuation of the proceedings or for the prosecution.
Only such a determination will allow, in fact, to clarify whether the European arrest warrant complies with the paradigm outlined by Article 1, paragraph 1, of Framework Decision 2002/584/JHA and to fully examine the complaint made by the applicant.
12. On the basis of these findings, the appeal must be upheld and the appealed sentence must be annulled with reference to another section of the Court of Appeal of Milan in order to acquire the additional information indicated above.
P.Q.M.
Annul the contested sentence and refer the case back to another section of the Court of Appeal of Milan for a new judgment. It is sent to the Clerk of the Court for the formalities referred to in article 22, paragraph 5, of Law no. 69 of 2005.
Thus decided on 14/04/2022