The refusal of the M.A.E. ‘in the state of the acts’: the Supreme Court between the anvil of cooperation and the hammer of human rights

(by Filippo Ottonelli)

In a judgment dated 8 November 2023 (no. 45291/2023, Sixth Criminal Section), the Supreme Court has ruled that any refusal of surrender, pronounced by the national judge due to lack of sufficient information to exclude the danger for the surrendered person to suffer inhuman and degrading treatment in the requesting State, must be understood as “as things stand”, since the national court must, at the same time as refusing surrender, (i) set a time-limit for the requesting State to provide the information necessary to exclude the danger invoked, and (ii) involve Eurojust in order to urge it to comply with the request for information.

The refusal of surrender pronounced by the national court can therefore be considered lawful and definitive only when the requesting State has not provided the requested information within the time limit set by the court itself, and notwithstanding the involvement of Eurojust.

The case

The case arose from a request for the execution of a European Arrest Warrant issued by the Greek Judicial Authority against an Albanian national, who was under investigation for the crime of robbery.

Twice the Court of Appeal of Genoa had executed the EAW, considering that all the conditions for the surrender of the Albanian citizen were met. Both decisions had been annulled with referral by the Supreme Court, on the grounds that the information available to the Genoa Court was not sufficient to exclude the danger of the suspect being subjected to inhuman and degrading treatment in Greek prisons – due to their overcrowded conditions -, resulting in a violation of Article 3 ECHR.

Following the second annulment in cassation, the Court of Appeal had decided to reject the request for the execution of the EAW, as the lack of information requested from the Greek authorities remained.

This time, it was the Prosecutor General’s Office that appealed in cassation, arguing that the Ligurian territorial court had rejected the request for execution of the EAW without exercising, as it should have done, all the powers in its possession to obtain from the Greek authorities the information necessary to dispel any doubt as to the risk invoked.

The Court’s reasoning

In ruling on the question submitted to it, the Court took as its starting point the interpretation – offered by the European Court of Justice – of the principle of “mutual trust and full cooperation between the States of the Union”, according to which the decisions of national courts may not prevent surrender to another Member State merely because the latter delays in forwarding the information necessary for the decision on surrender itself.

 

Therefore, if the information transmitted by the State issuing the EAW is not sufficient to exclude the risk of inhuman and degrading treatment, the national court will have to refuse surrender, but the refusal will have to be considered to be pronounced at the “state of the facts”.

This implies that the national court will have to

a) set a deadline, reasonable and appropriate to the specific case, within which the judicial authority of the requesting State must transmit the requested information in order to decide on the execution;

b) address Eurojust at the same time, to urge the issuing State to comply with the request for information from the executing State.

On the basis of these principles, therefore, the Supreme Court annulled the judgment under appeal, with referral to another section of the Court of Appeal of Genoa for the precise application of these principles of law.

Perspectives

The ruling in comment represents an undoubted consolidation of the principle of mutual trust between States of the Union, an indispensable bulwark of judicial cooperation in criminal matters.

It remains to be understood how wide the road is open to the risk of the national judge granting excessively “generous” terms to the issuing State; and how compatible such generosity is with the right of every citizen to have his case examined within a reasonable time (Art. 6 ECHR) and to move freely within the Member States (Art. 2 prot. 4 ECHR).