In proceedings for the execution of a European Arrest Warrant, once all the conditions for surrender have been established, as well as the absence of any grounds for refusal, the court must assess the possible existence of a situation of serious illness of the person sought, as well as 'serious and proven grounds for believing that [the] surrender would expose the person in question to a real risk of a significant reduction in his or her life expectancy or a rapid, significant and irreparable deterioration in his or her state of health'.
In the event that the court finds that such conditions do in fact exist, it must suspend the decision on surrender, and 'urge the issuing judicial authority to transmit any information relating to the conditions under which that person is expected to be prosecuted or detained, as well as the possibilities of adapting those conditions to the person's state of health in order to prevent that risk materialising', in the manner provided for by Article 16 of Law No 69 of 2005 and already used by the Courts of Appeal to carry out the assessments as to the actual existence of a "real risk of inhuman or degrading treatment" as a result of situations of prison overcrowding in the issuing State, in accordance with the Aranyosi and Căldăraru judgment, or of a "real risk of violation of the fundamental right to a fair trial", in accordance with the LM judgment.
Where the interlocutions thus carried out enable a solution to be found that avoids this risk, the court of appeal will issue a decision in favour of surrender.
If, on the other hand, as a result of the discussions with the issuing judicial authority, it has not been possible to find an adequate solution "within a reasonable period of time", the same court of appeal must issue a decision refusing surrender.
The execution of European arrest warrants is, in fact, conditioned by respect for the fundamental rights of the requested person, within the meaning of Article 1(3) of Framework Decision 2002/584/JHA: a provision, the latter, which the Italian legislature had originally implemented with Articles 1 and 2 of Law No 69 of 2005, in the version prior to the amendments made by Legislative Decree No 10 of 2021, and is now implementing - following those amendments - with the new wording of Article 2.
Those provisions did not authorise - and do not authorise - the Italian judicial authority to refuse the surrender of requested persons on the basis of "purely national standards of protection of fundamental rights [...] where this might undermine the primacy, unity and effectiveness of Union law (Court of Justice of the European Union, judgment of 26 February 2013, in Case C-617/10, Fransson, paragraph 29; judgment of 26 February 2013, in Case C-399/11, Melloni, paragraph 60)". The fundamental rights to which the Framework Decision and - consequently - the national transposing legislation are bound, according to Article 1(3) of the Framework Decision, 'are, rather, those recognised by European Union law, and consequently by all the Member States when they implement European Union law: fundamental rights to the definition of which, moreover, the constitutional traditions common to the Member States (Article 6(3) TEU and Article 6(3) TFEU) contribute in an eminent manner. 6(3) TEU and 52(4) CFREU)" (Order No 216 of 2021, point 7.3. of the Consideration in Law; similarly, Order No 217 of 2021, point 7 of the Consideration in Law).
ITALIAN CONSTITUTIONAL COURT
JUDGMENT NO. 177
YEAR 2023
composed of Messrs: President: Silvana SCIARRA; Judges: Daria de PRETIS, Nicolò ZANON, Franco MODUGNO, Augusto Antonio BARBERA, Giulio PROSPERETTI, Giovanni AMOROSO, Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D'ALBERTI,
has pronounced the following
JUDGMENT
in the judgment on the constitutional legitimacy of Articles 18 and 18-bis of Law No 69 of 22 April 2005 (Provisions to bring domestic law into line with Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States), brought by the Corte d'appello di Milano, sezione quinta penale, in the criminal proceedings against E. D.L, by order of 17 September 2020, entered under No 194 of the register of orders for 2020 and published in the Official Gazette of the Republic No 2, first special series, of the year 2021.
Having regard to the statement of defence of E. D.L. and the statement of intervention of the President of the Council of Ministers
Hearing at the public hearing on 4 July 2023 of Judge-Rapporteur Francesco Viganò;
Hearing of Mr. Vittorio Manes and Mr. Nicola Canestrini for E. D.L. and Mr. Maurizio Greco, avvocato dello Stato for the President of the Council of Ministers;
deliberated in the council chamber of 17 July 2023.
In fact
1.- By order of 17 September 2020 (reg. ord. no. 194 of 2020), the Court of Appeal of Milan, Fifth Criminal Section, raised questions on the constitutionality of Articles 18 and 18-bis of Law no. 69 of 22 April 2005 (Provisions to bring domestic law into line with Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States), with reference to Articles 2, 3, 32 and 110 (recte: 111, as clarified by the referring court in the subsequent order for correction of a material error of 2 February 2021) of the Constitution, in so far as they do not provide as grounds for refusing surrender, in the context of European arrest warrant procedures, 'chronic health reasons of indefinite duration entailing the risk of consequences of exceptional gravity for the requested person'.
1.1.- The referring court sets out that it has to decide on the request for the surrender of E. D.L., in execution of a European arrest warrant issued by the Municipal Court of Zadar (Croatia) on 9 September 2019, for the prosecution of the wanted person, charged with the offence of possession with intent to distribute and transfer of drugs, committed on Croatian territory in 2014.
The psychiatric report ordered on E. D.L. revealed the presence of a "psychotic disorder not otherwise specified", which requires the continuation of pharmacological and psychotherapeutic therapy to avoid probable episodes of psychic decompensation, as well as a "strong suicide risk" connected to the possible imprisonment; therefore, in the opinion of the referring court, the transfer to Croatia of the person concerned, in addition to interrupting the possibility of treatment, would entail "a concrete risk for the health of the subject which could have effects of exceptional gravity".
1.2.- The Court of Appeal of Milan points out, however, that among the grounds for refusing to execute a European arrest warrant, exhaustively provided for by Articles 18 and 18-bis of Law no. 69 of 2005, there is no general ground based on the need to avoid violations of the fundamental rights of the person requested to be surrendered, and in particular his right to health.
Nor would the possibility - once the Court of Appeal has ordered the surrender of the person concerned - for the President of the Court or his delegate to suspend its execution under Article 23(3) of Law No 69 of 2005 be appropriate to ensure full protection of the rights of the person concerned. The assessment of the state of health of the person concerned would in fact be postponed to a stage of an executive nature intended to be concluded by a non-appealable act. The suspension of the proceedings would also be of indefinite duration, given the chronic nature of the pathology from which the requested person suffers, in contrast with the ratio of the remedy in Article 23(3), which would instead be designed to suspend the arrest warrant "in the presence of a state of illness that has a diagnosis and a foreseeable duration".
1.3.- In these conditions, the judge in question observes, the decision to order the surrender of the person concerned would result in the violation of his right to health, "defined in the various meanings of the right to physical inviolability and the right to adequate care", and protected as such by both Articles 2 and 32 of the Constitution and - at the level of European law - by Article 35 of the Charter of Fundamental Rights of the European Union.
Moreover, the rules in force violate the principle of equality set out in Article 3 of the Constitution, by treating persons subject to a European arrest warrant less favourably than those whose extradition is requested, for whom Article 705(2)(c-bis) of the Code of Criminal Procedure provides that the Court of Appeal must give a ruling against extradition 'if reasons of health or age entail the risk of exceptionally serious consequences for the person requested'.
Finally, the failure to provide for a ground for refusal linked to the health condition of the person concerned, in the case of chronic and potentially irreversible illness, would conflict with the principle of reasonable duration of proceedings under Article 111 of the Constitution. In such cases, the rules in force would produce - as a result of the suspension of execution following the sentence ordering surrender, pursuant to Article 23, paragraph 3, of Law No. 69 of 2005 - "a procedural paralysis destined to last for an entirely indefinite period of time", with consequent prejudice both to "the need to avoid the continuation of protracted proceedings" and to "the right of the defendant to be tried - or in any case to see the procedural phase to which he is subjected concluded - in a reasonable time".
The President of the Council of Ministers, represented and defended by the Avvocatura Generale dello Stato, has intervened in the case, asking that the questions be declared inadmissible or in any event unfounded.
The intervener notes, first of all, that the possibility of suspending the surrender, guaranteed by Article 23(3) of Law No 69 of 2005, would radically prevent any infringement of the right to health of the requested person.
He then observes that the results of the expert's report ordered by the Court of Appeal, as summarised in the order of referral, do not show the irreversibility of the psychiatric pathologies from which the person concerned is allegedly suffering, nor specific elements capable of corroborating the alleged suicide risk; this would lead to an insufficient description of the case in question.
In any event, the Court of Appeal could have followed, in the present case, the procedure indicated by the Court of Justice of the European Union in a number of recent cases concerning conditions of prison overcrowding or systemic or generalised deficiencies concerning the independence of the judiciary of the issuing State (cited are the judgments of 5 April 2016, in Joined Cases C-404/15 and C-659/15 PPU, Aranyosi and Căldăraru; 25 July 2018, in Case C-216/18 PPU, LM; 25 July 2018, in Case C-220/18 PPU, ML; 15 October 2019, in Case C-128/18, Dorobantu). Therefore, "the referring court should first of all have supplemented the information at its disposal (above all [...] with reference to the forms of therapeutic and psychological assistance and supervision that could be activated, in the event of surrender, by the issuing State) and, only at the end, should have determined accordingly, possibly [...] also "...terminating..." the EAW procedure where the alleged problem did not appear to be resolvable "...within a reasonable time...".
The activation of the procedure introduced by the judgments of the Court of Justice, starting from the Aranyosi judgment, would also deprive of foundation the complaints relating to the alleged infringement of the principle of equality with respect to the regulation of the extradition procedure, "substantially identical, the possible negative unblocking of the two different procedures appearing, all things being equal", as well as that relating to the reasonable duration of the surrender procedure, which would itself be incorporated in the "Aranyosi test".
3.- E. D.L. entered an appearance before the Court through his counsel, who in their briefs urged that the questions put forward be upheld, subject to a possible reference to the Court of Justice for a preliminary ruling, emphasising in particular that the execution of the European arrest warrant can never be to the detriment, in the European Union legal system as well as in the Italian legal system, of the protection of the fundamental rights of the individual, including the right to health, which is directly linked to the inalienable value of human dignity.
4.- The Union of Italian Criminal Chambers (UCPI) and the European Criminal Bar Association and Fair Trials have filed written opinions as amici curiae.
By order of the President of this Court of 12 July 2021, the opinions of the UCPI and European Criminal Bar Association were admitted, which put forward arguments in favour of the merits of the questions raised, subject to possible referral for a preliminary ruling to the Court of Justice of the European Union. The opinion of Fair Trials was not admitted because it was drafted in a language other than Italian, which is the language of the case in proceedings before this Court.
5.- In its Order No 216 of 2021, the Court observed that the questions referred to it primarily concern the interpretation of European Union law, given that Articles 18 and 18-bis of Law No 69 of 2005, criticised by the referring court, implement Articles 3, 4 and 4-bis of Framework Decision 2002/584/JHA on the European Arrest Warrant, which - in regulating the mandatory and optional grounds for refusal of surrender - do not contemplate the situation of serious danger to the health of the person concerned arising from the surrender itself, linked to a chronic pathology of potentially indefinite duration.
The order therefore suspended the proceedings and referred the following question to the Court of Justice of the European Union, pursuant to Article 267 of the Treaty on the Functioning of the European Union: 'Is Article 1(3) of Framework Decision 2002/584/JHA on the European arrest warrant, read in the light of Articles 3, 4 and 35 of the Charter of Fundamental Rights of the European Union, compatible with the principle of proportionality? 3, 4 and 35 of the Charter of Fundamental Rights of the European Union (CFREU), must it be interpreted as meaning that, if the executing judicial authority considers that the surrender of a person suffering from a serious, chronic and potentially irreversible illness could expose him to the risk of serious harm to his health, it must request from the issuing judicial authority information making it possible to rule out the existence of that risk and must refuse surrender if it does not obtain assurances to that effect within a reasonable period?
6.- The Court of Justice answered these questions for a preliminary ruling in its judgment of 18 April 2023 in Case C-699/21, E. D.L.
6.1.- The Court of Justice first recalled that under the principle of mutual recognition "the executing judicial authorities may refuse to execute a European arrest warrant only on grounds based on Framework Decision 2002/584, as interpreted by the Court" (paragraph 34).
The aforementioned Framework Decision does not provide for the possibility of refusing to execute a European arrest warrant solely on the ground that the requested person suffers from serious, chronic and potentially irreversible illnesses, given that, "[i]n view of the principle of mutual trust underlying the area of freedom, security and justice", there is a presumption of the adequacy of the care and treatment offered in other Member States for the purpose of dealing with such illnesses (paragraph 35).
6.2.- Nevertheless, under Article 23(4) of Framework Decision 2002/584/JHA, the executing judicial authority may temporarily suspend the surrender of the requested person where it would "manifestly endanger the health of that person, for example by reason of a temporary illness or medical condition [...] prior to the date foreseen for his or her surrender" (paragraph 37).
That power of suspension must be exercised in the light of Article 4 CDFUE, since it cannot be ruled out that "the surrender of a seriously ill person may involve, for that person, a real risk of inhuman or degrading treatment [...], either because of the standard of care available in the issuing Member State or, in certain circumstances, independently of it" (paragraph 39). Such a situation - which presupposes "a minimum threshold of severity [of treatment] which exceeds the unavoidable level of suffering inherent in detention" (paragraph 40) - "would arise in the case of the surrender of a seriously ill person for whom there is an imminent risk of death or where there are serious grounds for believing that , although not running an imminent risk of death, he would, in the circumstances of the case, face a real risk of being exposed to a serious, rapid and irreversible decline in his state of health or a significant reduction in his life expectancy' (paragraph 41).
It follows that, where the executing judicial authority has, 'in the light of the objective elements at its disposal, serious and substantiated grounds' for considering that surrender of the wanted person, who is seriously ill, would expose him or her to such a risk, it is obliged to order the suspension of the surrender pursuant to Article 23(4) of Framework Decision 2002/584/JHA (paragraph 42) and, in accordance with the duty of sincere cooperation enshrined in Article 4(3), first subparagraph, of the Treaty on European Union (TEU), it must 'request the issuing judicial authority to communicate any information necessary to satisfy itself that the manner in which the criminal proceedings giving rise to the European arrest warrant will be conducted or the conditions of that person's possible detention make it possible to exclude the risk' (paragraph 47).
6.3. - If "assurances" are given by the issuing judicial authority that the "exceptionally serious" and "chronic and potentially life-threatening" condition from which the person concerned suffers "will be the subject, in that Member State, of appropriate treatment or care, and this, either in a prison environment or in the context of alternative arrangements for keeping that person at the disposal of the judicial authorities of that Member State" (paragraph 49), the executing judicial authority will be required to execute the arrest warrant, immediately informing the issuing judicial authority and agreeing with it on a new date for surrender (paragraph 48).
If, on the other hand, "in exceptional circumstances, in the light of the information provided by the issuing judicial authority, as well as any other information available to the executing judicial authority", the latter concludes that surrender would expose the requested person to a risk of a significant reduction in his life expectancy or a rapid, significant and irremediable deterioration in his state of health, and that such a risk cannot be excluded "within a reasonable time" (paragraph 50), it would not be possible to use Article 23(4) of the Framework Decision to surrender the person in question. 23(4) of the Framework Decision to "postpone the surrender of a wanted person for a considerable, or even indefinite, period of time" (paragraph 51). Such an interpretation would be contrary to the letter and the 'general scheme' of that provision, and would leave the requested person 'exposed for an indefinite period to the European arrest warrant issued against him and to the coercive measures taken, where appropriate, by the executing Member State, despite the fact that there is no realistic prospect of that person being surrendered to the issuing Member State' (ibid.).
In the hypothesis just outlined, "account must also be taken of Article 1(3) of Framework Decision 2002/584, under which the existence of a risk of violation of fundamental rights may allow the executing judicial authority to refrain, exceptionally and following an appropriate examination from following up a European arrest warrant" (paragraph 52), so that "the executing judicial authority may not, in accordance with Article 1(3) of Framework Decision 2002/584, interpreted in the light of Article 4 of the Charter, follow up the European arrest warrant" (paragraph 53).
6.5.- The Court of Justice therefore concluded that "[t]he provisions of Articles 1(3) and 23(4) 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, read in the light of Article 4 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that
- where there are reasonable grounds for believing that the surrender of a requested person, pursuant to a European arrest warrant, would manifestly endanger his health, the executing judicial authority may, exceptionally, temporarily suspend that surrender
- where the executing judicial authority called upon to decide on the surrender of a seriously ill requested person pursuant to a European arrest warrant considers that there are serious and substantiated grounds for believing that such surrender would expose that person to a real risk of a significant reduction in his or her life expectancy or of rapid deterioration significant and irreparable deterioration in his state of health, it must suspend such surrender and urge the issuing judicial authority to transmit any information relating to the conditions under which that person is to be prosecuted or detained and to the possibilities for adapting those conditions to the person's state of health in order to prevent that risk materialising
- where, in the light of the information provided by the issuing judicial authority and of all other information available to the executing judicial authority, it appears that that risk cannot be excluded within a reasonable time, the latter authority must refuse to execute the European arrest warrant. Conversely, if that risk can be excluded within such a reasonable time, a new surrender date must be agreed with the issuing judicial authority' (paragraph 55 and operative part).
7.- At the hearing on 4 July 2023, the party's defence requested that the questions be upheld in the light of the judgment of the Court of Justice, while the Advocate General's Office insisted on the conclusions already delivered.
Considered in law
1.- With the order referred to in the epigraph (reg. ord. no. 194 of 2020), the Court of Appeal of Milan, fifth criminal section, has raised questions of constitutional legitimacy of Articles 18 and 18-bis of Law no. 69 of 2005, with reference to Articles 2, 3, 32 and 111 Cost, insofar as they do not provide as grounds for refusing surrender, in the context of European arrest warrant procedures, 'chronic health reasons of indefinite duration entailing the risk of consequences of exceptional gravity for the requested person'.
2.- The questions are admissible.
2.1.- First of all, the objection of inadmissibility raised by the Attorney General's Office is unfounded, according to which the order for reference does not show what harm could be caused to the right to health of the person sought, since the possibility of suspension of execution guaranteed by Article 23, paragraph 3, of Law no. 69 of 2005 would radically prevent any possible prejudice to his health.
In fact, the referring court gives detailed reasons as to why, in its view, the possibility of suspension of enforcement under Article 23(3) of Law No 69 of 2005 would not be capable of guaranteeing full protection of the right to health of the person sought. That is sufficient for the purposes of the admissibility of the questions, the assessment by this Court as to the actual suitability of that remedy being a matter of substance.
2.2.- Nor is the further objection raised by the Advocate General of the State well founded, according to which the order for reference did not adequately illustrate the pathologies from which the person sought to be examined suffered in the case at issue in the main proceedings, with consequent inadequate reasoning as to the relevance of the questions.
The referring court has in fact plausibly argued, on the basis of the documentary evidence obtained and the psychiatric expert's report, the reasons why the interruption of the treatment to which the person sought is currently subject and his possible placement in a prison in Croatia could lead to an aggravation of the psychiatric pathology from which he is suffering, with a consequent significant risk of suicide. This must be considered sufficient for the purposes of assessing the relevance of the questions raised.
2.3. - Lastly, the objection - also raised by the Advocate General of the State - that the order for reference did not consider the possibility of following the procedure indicated by the Court of Justice in Aranyosi and Căldăraru, LM, ML and Dorobantu (supra, point 2 of the Findings of Fact), and to obtain information from the issuing judicial authority in order to find a suitable placement for the requested person during the proceedings against him, terminating the procedure if such a solution could not be found within a reasonable time.
All the judgments of the Court of Justice referred to concern, in fact, situations characterised by the presence of systemic deficits in the issuing State - relating, in particular, to situations of generalised prison overcrowding or insufficient guarantees of the independence of the judiciary - which are not, by contrast, taken into account in the case at issue in the main proceedings; Consequently, the principles set out in those judgments could not, sic et simpliciter - in the absence at least of clarifications as to their interpretation by the Court of Justice - have been applied by the referring court to the different hypothesis in which the pathological conditions, chronic and of indefinite duration, of the individual requested are liable to worsen significantly in the event of surrender, in particular where the issuing State requires him to be kept in prison.
3.- There is also no need to return the documents for a fresh assessment of the relevance and manifest lack of foundation of the questions in the light of the ius superveniens represented by the amendments made to the two provisions censured, as well as to Article 2 of Law no. 69 of 2005, by Legislative Decree No 10 of 2 February 2021 (Provisions for the full adaptation of national legislation to the provisions of Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States, in implementation of the delegation of power referred to in Article 6 of Law No 117 of 4 October 2019). And this for the reasons already illustrated in the Order No. 216 of 2021 (points 3 and 4 of the Considerato in diritto), which must be considered here fully recalled.
4.- On the merits, first of all the complaints made with reference to Article 3 of the Constitution must be declared unfounded, which assume as a tertium comparationis Article 705, paragraph 2, letter c-bis) of the Code of Criminal Procedure, which provides that the court of appeal must pronounce a sentence contrary to extradition "if reasons of health or age entail the risk of exceptionally serious consequences for the person requested".
The tertium comparationis evoked is, however, not homogeneous. In fact, Framework Decision 2002/584/JHA intended to replace the traditional extradition procedures with a simplified surrender system based on the direct relationship between the judicial authorities of the Member States, inspired by the principle of the "free movement of judicial decisions" (recital 5), based in turn on the idea, set out in the conclusions of the Tampere European Council of 15 and 16 October 1999, of their "mutual recognition" (recital 6). That system "is based on a high level of confidence between Member States" (recital 10), in particular as regards each Member State's respect for the fundamental rights recognised by Union law (Court of Justice, E. D.L. judgment, paragraph 30, and further references therein).
As most recently observed in the E.D.L. judgment, it is precisely this mutual trust that precludes, as a rule, 'that the executing judicial authorities may refuse to execute a European arrest warrant on the sole ground that the person concerned by that arrest warrant is suffering from serious, chronic and potentially irreversible illness. In view of the principle of mutual trust underlying the area of freedom, security and justice, there is, in fact, a presumption that the care and treatment offered in the Member States for the treatment, in particular, of such pathologies are adequate' (paragraph 35); this presumption can be rebutted, in the individual case, only under the strict conditions set out by the Court of Justice itself, to which we shall return in a few moments.
Entirely different, however, is the context in which traditional extradition instruments operate, in which the presumption in question does not operate at root: this makes a comparison between the two types of cooperation instruments impracticable.
5.- On the other hand, as regards the questions of legitimacy raised with reference to Articles 2, 32 and 111 of the Constitution, in the light of the judgment in E. D.L. they must be held to be unfounded in the following terms.
5.1.- According to the referring court, the failure of Law No. 69 of 2005 to provide for a ground for non-execution of the European arrest warrant where there is a "risk of exceptionally serious consequences" in the event of surrender, connected with "chronic health reasons of indefinite duration" affecting the person sought, would be contrary to his inviolable right to health, based on Articles 2 and 32 of the Constitution.
In order to avert such a risk, the remedy of suspension of execution provided for by Article 23, paragraph 3, of Law No. 69 of 2005 would not be sufficient, since such a remedy - precisely because of the chronic nature of the pathology from which the person sought suffers - would entail a procedural paralysis of indeterminable duration, with consequent prejudice, in particular, to the right of the person concerned to have his procedural position defined within a reasonable time.
5.2.- In its Order No. 216 of 2021, this Court first of all concurred with the referring court's assessment as to the unsuitability of the remedy provided by Article 23, paragraph 3, of Law No. 69 of 2005 with respect to the need to protect the right to health of the person sought. In this regard, it has been pointed out that in the Framework Decision, in the light of which the Italian provision must be interpreted, the "exceptional" deferment of surrender seems to be provided for in relation to situations of a merely "temporary" nature and appears to be an incongruous remedy in relation to chronic pathologies of indefinite duration. In such cases - it was again observed in Order no. 216 of 2021 - "the deferment of the execution of the European arrest warrant [... ] would risk being prolonged indefinitely", on the one hand preventing the issuing State from prosecuting or executing the sentence against the person concerned; and, secondly, by forcing the person concerned to plead his chronic pathologies not in the surrender proceedings - in which his defence guarantees are fully deployed - but at a later procedural stage, destined to result in an order of the President of the Court or his delegate, while maintaining the person concerned 'in a situation of continuous uncertainty as to his fate, contrary to the need to guarantee a reasonable length of time in any proceedings liable to affect his personal liberty' (paragraph 6. 3. of the Recital in law).
The impossibility of refusing surrender, in the situation under examination, on the basis of the general clause of respect for the "supreme principles of the constitutional order of the State" and the "inalienable rights of the person" contained today in Article 2 of Law No. 69 of 2005, as reformulated by d. No. 10 of 2021 (i.e. on the basis of the former wording - applicable ratione temporis in the judgment a quo - of Articles 1 and 2 of Law No. 69 of 2005, which conditioned the execution of the European arrest warrant in the Italian legal system, inter alia, to the "principles and [the] rules contained in the Constitution"). Such clauses, in fact, cannot be interpreted in such a way as to authorise the competent court of appeal to refuse surrender outside the cases provided for by European Union law, as interpreted by the Court of Justice; it is then for the Constitutional Court alone "to verify the compatibility of European Union law, or of national law implementing European Union law, with those supreme principles and inviolable rights" (point 7.5. of the Consideration of Law).
Order No 216 of 2021 recalled, however, that European Union law itself cannot 'tolerate that the execution of the European arrest warrant leads to an infringement of the fundamental rights of the person concerned as recognised by the Charter and by Article 6(3) TEU' (paragraph 8 of the preamble), as is moreover clear from Article 1(3) of Framework Decision 2002/584/JHA.
This Court has therefore decided to ask the Court of Justice whether the principles already set out by the latter with reference to cases in which the surrender of the person requested could expose him to a serious risk of his fundamental rights being infringed as a result of systemic deficiencies in the issuing State - such as, in particular, situations of prison overcrowding or lack of independence of the judiciary - are capable of being extended also to a hypothesis such as the one now under consideration. The purpose of this is to allow direct dialogue between the judicial authorities of the issuing State and the surrendering State in order to find a solution capable of avoiding the risk of serious harm to the health of the requested person connected with the surrender itself, and of terminating the surrender procedure where the existence of such a risk cannot be ruled out within a reasonable time (point 8.2. of the preamble and operative part). All of this is done with a view to striking a balance between the reasons for safeguarding the health of the person applied for - which is the subject of protection both in the national constitutional system, under Articles 2 and 32 of the Constitution and in the European Union legal order, under Articles 3, 4 and 35 CDFUE (paras. 9.1. and 9.2. of the preamble) - as well as the "interest in prosecuting suspected offenders, ascertaining their responsibility and, if found guilty, ensuring that they are punished" in the European legal area: an interest, the latter, which underlies the European Union and national rules on the European arrest warrant (para. 9.3. of the preamble).
Such a balance - the Court concluded - could best be achieved by means of a search, shared between the judicial authorities of the issuing State and the executing State, for "solutions which would allow, in the case in point, the person concerned to be tried in the issuing State while guaranteeing him the full rights of defence and at the same time avoiding exposing him to the risk of serious harm to his health, for example by placing him in an appropriate facility in the issuing State during the trial" (paragraph 9.5. of the Preamble to the judgment).
5.3.- In response to the question thus formulated, the Court of Justice first of all reiterated, in its judgment in E. D.L. (on which more fully above, paragraph 6 of the Consideration in Fact), that the judicial authorities of the executing State may in principle refuse to surrender the requested person only in the cases provided for by Framework Decision 2002/584/JHA, it being presumed in particular that each Member State is able to guarantee appropriate treatment for the illness from which the requested person is suffering.
However, the Court of Justice also recalled that, according to Article 23(4) of the Framework Decision, the executing judicial authority may suspend the surrender of the requested person where it could result in that person 'running a real risk of being exposed to a serious, rapid and irreversible decline in his state of health or a significant reduction in his life expectancy', or a fortiori a danger to his own life, even in view of the lack of treatment appropriate to his pathological condition in the issuing State. If, in fact, the surrender of the requested person would expose him or her to such risks, its actual execution would be incompatible with that person's right not to be subjected to inhuman or degrading treatment, enshrined in Article 4 CDFUE (paragraphs 39 to 41).
Consequently, the Court of Justice itself has held that where the executing judicial authority has, 'in the light of the objective elements at its disposal, serious and substantiated grounds' for considering that surrender of the wanted person, who is seriously ill, would expose him or her to such a risk, it is obliged to order the suspension of the surrender pursuant to Article 23(4) of Framework Decision 2002/584 (paragraph 42).
As suggested by this Court in its Order No 216 of 2021, the Court of Justice made it clear that in such a case the executing judicial authority would have to "ask the issuing judicial authority to transmit any information necessary to satisfy itself that the manner in which the criminal proceedings at the origin of the European arrest warrant will be conducted or the conditions of that person's possible detention make it possible to exclude the risk" (paragraph 47).
Where the judicial authority of the issuing State provides, "within a reasonable time", assurances as to the treatment and care to which the requested person will be subjected - either in a prison environment or in the context of non-custodial measures - which make it possible to exclude that risk, the arrest warrant must be executed (paragraphs 48 and 49).
If, on the other hand, as a result of the interlocutions, it is not possible to exclude that risk within a reasonable time, the executing judicial authority will have no option but to 'refrain, exceptionally and following an appropriate examination, from acting on a European arrest warrant', and consequently 'refuse to execute it', taking into account the general prohibition of violating the fundamental rights of the requested person laid down in Article 1(3) of the Framework Decision (paragraphs 52 and 53 and operative part). Indeed, according to the Court of Justice, a situation of suspension of enforcement which leaves the person concerned exposed, for an indefinite period, to a procedure potentially restricting his fundamental rights, despite the absence of any realistic prospect of surrender to the issuing judicial authority, could not be tolerated (paragraph 51).
5.4.- This Court shares the view, expressed in agreement by the referring court and by the Court of Justice itself, that the execution of a European arrest warrant - issued for the purposes either of prosecution or of execution of a penalty or a detention order - should never entail exposing the requested person to a risk of rapid, significant and irreparable deterioration of his state of health, and a fortiori of a reduction in life expectancy.
Pursuing the arrest warrant in such circumstances would entail - as the Court of Justice itself emphasises - a violation of Article 4 CDFUE, exposing the person concerned to the risk of inhuman and degrading treatment; and would in any event result, from the point of view of constitutional law, in an infringement of the inviolable right to health of the person sought, protected by Articles 2 and 32 of the Constitution.
On the other hand, the remedy originally envisaged by the Avvocatura Generale dello Stato - represented by a mere stay of execution, of potentially indefinite duration, in the presence of a serious chronic pathology afflicting the person sought - would be incompatible with that person's right, protected by Article 111, second paragraph, of the Constitution, to an expeditious resolution of his case.
The solution identified by the Court of Justice in the judgment in E. D.L. now makes it possible to avert such a scenario, by means of a path that unfolds in three essential stages: (a) suspension of the decision on surrender, the purpose of which is to allow (b) direct dialogue between the judicial authorities in order to find a solution that avoids serious risks to the wanted person's health, which in turn may lead (c) to execution of the surrender or a final decision refusing surrender in the residual hypothesis that such a solution cannot be found, even after such dialogue.
5.5.- It remains, at this point, to specify how the solution indicated by the Court of Justice with an eye to the entire legal area of the Union must be inserted into the specific Italian legislative context, represented by Law no. 69 of 2005 transposing Framework Decision 2002/584/JHA, so as to exclude the profiles of conflict with the Constitution feared by the referring party, as well as the same fundamental rights recognised by the law of the Union.
5.5.1.- In that regard, it must first be borne in mind that the interpretative guidance provided by the Court of Justice relates to an instrument - Framework Decision 2002/584/JHA - which is 'binding on the Member States as to the result to be achieved without prejudice to the powers of the national authorities as to form and methods', and in any event has no direct effect within the meaning of Article 34(2)(b) of the Treaty on European Union, in the version resulting from the Treaty of Amsterdam in force at the time of its adoption.
Accordingly, in incorporating into Italian law the procedural mechanism identified by the Court of Justice, account must be taken of the particular legislative context represented by Law No 69 of 2005, in which the national legislature made use of the wide discretion, as regards the choice of "form" and "means", granted to it by the Framework Decision in order to adapt the indications of purpose contained in the latter to the specific characteristics of Italian proceedings.
Accordingly, the indications now provided by the Court of Justice as to the result to be achieved - to avoid infringement of the fundamental rights of a seriously ill wanted person through direct dialogue between the judicial authorities of the issuing State and the executing State - must also be calibrated and specified in such a way as to fit harmoniously into that legal context.
5.5.2.- The E. D.L. judgment focuses on Article 23(4) of the Framework Decision, which allows the "executing judicial authority" to temporarily postpone surrender in the presence of "serious humanitarian reasons, for example if there are serious grounds for believing that it would manifestly endanger the life or health of the requested person". The Court of Justice interprets that clause in the light of Article 1(3) of the Framework Decision as meaning that the same 'executing judicial authority' should request information from the issuing judicial authorities in order to find an appropriate solution to avoid risks to the health of the wanted person, and possibly refuse surrender if such an interlocution proves fruitless.
The Italian legislator transposed Article 23(4) of the Framework Decision by Article 23(3) of Law No 69 of 2005. This provision attributes the competence to suspend the surrender by reasoned decree - in the presence, inter alia, of "serious reasons to believe that the surrender would endanger the life or health of the person" - not to the authority responsible for deciding on the surrender (i.e. the court of appeal in its ordinary collegial composition, pursuant to Art. 5 of Law No 69 of 2005), but to the 'president of the court of appeal' alone, or to a 'magistrate delegated by him', to whom the law generally attributes the competence to take care of the execution of the arrest warrant after the decision in favour of surrender taken by the court of appeal.
Well, this Court has already had occasion to clarify in Order No. 216 of 2021 that such a remedy - entrusted to a monocratic jurisdictional authority different from that, in collegial composition, which ordered the surrender, and resulting in a measure that the jurisprudence of legitimacy considers not appealable by cassation (Court of Cassation, Sixth Criminal Section, judgment 26 April - 10 May 2018, no. 20849) - is not suitable for guaranteeing adequate protection of the inviolable right to health, and a fortiori to life itself, of the person applied for, in hypotheses such as the one now under examination. The nature of the fundamental right at stake requires, in fact, full cognition on the part of the judge, in the context of a procedure that respects all the guarantees of due process of law and is punctually regulated by law; a procedure necessarily destined to conclude with a measure that can be appealed to cassation, in accordance with the provisions of Article 111, paragraph 7, of the Italian Constitution.
On the other hand, the logic of the Framework Decision - and of the E.D.L. judgment itself - rests on the assumption of identity between the "executing judicial authority", competent to decide on the existence of the conditions for surrender under Articles 3, 4 and 4-bis of the Framework Decision, and that competent to decide on the possible suspension of surrender under Article 23(4), also referred to as the "executing judicial authority". From this point of view, it is well explained why the Court of Justice entrusts to this same authority the power to "refuse" the execution of the warrant when the phase of interlocution envisaged by the judgment in E.D.L. proves fruitless.
It follows that, in order to ensure to the fullest extent possible the effectiveness of Framework Decision 2002/584/JHA, as interpreted by the judgment in E. D.L, jurisdiction to ensure the procedural remedy articulated by the Court of Justice must necessarily be entrusted, in the Italian legal system, to the same court already competent to rule on surrender under Article 5(1) of Law no. 69 of 2005: and therefore to the court of appeal in collegiate composition, to which the Italian legislature has entrusted, in principle, the decisions on the European arrest warrant liable to directly affect the fundamental rights of the wanted person, starting with his personal freedom, as well as any decisions on the refusal of surrender; decisions, all of which are subject to the possibility of appeal in cassation, in accordance with the aforementioned constraint deriving from Article 111, paragraph 7, of the Constitution.
5.5.3.- The detailed procedure outlined by the judgment in E. D.L. therefore finds its natural place, in the system of Law No. 69 of 2005, within the procedure for deciding on the request for execution, governed by Articles 17 et seq. thereof; and may usefully be placed there after the positive and negative conditions provided for in particular by Articles. 17, 18 and 18a, but before the final decision on surrender, which will thus remain subject to a single appeal in cassation under Article 22, thus avoiding the risk of having to institute, after the appeal in cassation against the decision on surrender, a new procedure before the Court of Appeal, for the sole purpose of verifying the conditions for surrender laid down in the judgment in E.D.L., a procedure that would also be terminated by a measure that could again be appealed in cassation. Such a solution would obviously result in an unnecessary lengthening of the time taken to complete the proceedings, in diametrical contrast with the purpose - underlying the entire structure of Framework Decision 2002/584/JHA - of ensuring a more expeditious execution of the surrender decisions compared with traditional extradition procedures.
Therefore, once all the prerequisites legitimising surrender have been ascertained, as well as the absence of hostile causes under Articles 18 and 18-bis of Law no. 69 of 2005, the court of appeal will have to assess the possible existence of a situation of serious illness of the wanted person, as well as of "serious and proven grounds for believing that [the] surrender would expose the person in question to a real risk of a significant reduction in his or her life expectancy or of a rapid, significant and irremediable deterioration in his or her state of health" (Court of Justice, judgment E. D.L, second sentence of the operative part).
In the event that the court finds that such conditions do in fact exist, it must - according to the second indent of the operative part of the E.D.L. judgment - suspend the decision on surrender, and "urge the issuing judicial authority to transmit any information relating to the conditions in which that person is expected to be prosecuted or detained and the possibilities of adapting those conditions to the person's state of health in order to prevent that risk materialising", in accordance with the procedure laid down by Article 16 of Law No 69 of 2005. 16 of Law No 69 of 2005 and already used by the Courts of Appeal to carry out the assessments as to the actual existence of a "real risk of inhuman or degrading treatment" as a result of situations of prison overcrowding in the issuing State, in accordance with the Aranyosi and Căldăraru judgment, or of a "real risk of violation of the fundamental right to a fair trial", in accordance with the LM judgment.
Where the interlocutions thus carried out enable a solution to be found that avoids this risk, the court of appeal will issue a decision in favour of surrender.
If, on the other hand, as a result of the discussions with the issuing judicial authority, it has not been possible to find an adequate solution "within a reasonable time", the same court of appeal must issue a decision refusing surrender, in accordance with the third sentence of the operative part of the judgment.
This is without prejudice, of course, to the competence of the President of the Court of Appeal, or of the judge delegated by him, under Article 23(2) to (4) of Law No 69 of 2005, to suspend the surrender for the reasons set out therein, including any situations of danger to life or health of a transitory nature, or in any event arising after the decision in favour of surrender by the Court of Appeal: situations referred to in the first introductory part of the operative part of the judgment in E. D.L, in which the Court of Justice essentially reproduces what is already provided for generally in Article 23(4) of the Framework Decision.
5.6.- It is possible to arrive at the overall result outlined above by way of interpretation, without there being any need for the declaration of the unconstitutionality of Articles 18 and 18-bis of Law No 69 of 2005 urged by the referring court.
The execution of European arrest warrants is, in fact, conditioned by respect for the fundamental rights of the requested person, within the meaning of Article 1(3) of Framework Decision 2002/584/JHA: a provision, the latter, which the Italian legislature had originally implemented with Articles 1 and 2 of Law no. 69 of 2005, in the version prior to the amendments made by Legislative Decree no. 10 of 2021, and is now implementing - following those amendments - with the new wording of Article 2.
This Court has already had occasion to clarify that those provisions did not authorise - and do not authorise - the Italian judicial authority to refuse the surrender of requested persons on the basis of "purely national standards of protection of fundamental rights [...] where this might undermine the primacy, unity and effectiveness of Union law (Court of Justice of the European Union, judgment of 26 February 2013, in Case C-617/10, Fransson, paragraph 29; judgment of 26 February 2013, in Case C-399/11, Melloni, paragraph 60)". The fundamental rights to which the Framework Decision and - consequently - the national transposing legislation are bound, according to Article 1(3) of the Framework Decision, 'are, rather, those recognised by European Union law, and consequently by all the Member States when they implement European Union law: fundamental rights to the definition of which, moreover, the constitutional traditions common to the Member States (Article 6(3) TEU and Article 6(3) TFEU) contribute in an eminent manner. 6(3) TEU and 52(4) CFREU)" (Order No 216 of 2021, paragraph 7.3. of the preamble; similarly, Order No 217 of 2021, paragraph 7 of the preamble).
However, the provisions in question can, and indeed must, be read in accordance with Article 1(3) of the Framework Decision, and thus operate as safety valves to prevent the execution of arrest warrants from leading to results contrary to fundamental rights in the scope attributed to them by European Union law, as interpreted by the case-law of the Court of Justice.
It follows that the court of appeal - once it has ascertained, when deciding on surrender, that it is impossible to find a solution capable of protecting the health of the person sought in the issuing State, following the procedure indicated by the judgment in E. D.L. - will be obliged to refuse the surrender itself, in application of the general clauses just mentioned, in the light of the Court of Justice's own precise indications on the extent of the fundamental rights at stake (thus, with respect to the hypothesis of refusal of surrender by the court of appeal in the presence of a risk of inhuman or degrading treatment connected with prison overcrowding, in the sense indicated by the Aranyosi and Căldăraru judgment, also Court of Cassation, Sixth Criminal Section, judgment 16-18 November 2022, no. 44015).
5.7. - In conclusion, the questions raised with reference to Articles 2, 32 and 111 of the Constitution are not well-founded, since it is possible to remedy the failure to provide, in the provisions censured, for a ground for refusal based on a serious risk to the health of the person concerned through a systematic interpretation of Law no. 69 of 2005 in the light of the judgment in E. D.L.; an interpretation which - in the terms just specified - ensures its conformity with the constitutional parameters referred to.
on these grounds
THE CONSTITUTIONAL COURT
1) Declares unfounded the questions of the constitutionality of Articles 18 and 18-bis of law no. 69 of 22 April 2005 (Provisions to bring domestic law into line with the Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between the Member States) raised, with reference to Article 3 of the Constitution, by the Court of Appeal of Milan, 5th Criminal Section, with the order indicated in the epigraph
2) Declares unfounded, in the terms stated in the grounds, the questions of constitutionality of Articles 18 and 18-bis of law no. 69 of 2005, raised, with reference to Articles 2, 32 and 111 of the Constitution, by the Corte d'appello di Milano, sezione quinta penale, with the order indicated in the epigraph.
Thus decided in Rome, in the seat of the Constitutional Court, Palazzo della Consulta, on 17 July 2023.
F.to:
Silvana SCIARRA, President
Francesco VIGANÒ, Editor
Roberto MILANA, Director of the Chancellery
Filed at the Court Registry on 28 July 2023
The Director of the Chancellery
F.to: Roberto MILANA