References: Unreported, 14 Feb 2007
Court of Cassation Sez 6 (Italy). The appellant challenged the issue by the Hamburg Public Prosecutor’s Office of a European Arrest Warrant on the ground that it should have been issued and signed by a judge.
Held: The argument failed: ‘The claim alleging breach of article 1(3) of Law no 69 of 2005 on the ground that the EAW was not signed by a judge is completely unfounded.
The provision allegedly requiring signature by a judge does not refer to the EAW, as the appellant mistakenly claims, but to the precautionary measure on the basis of which the warrant was issued: in the present case, it is in fact the arrest warrant issued by the Hamburg District Magistrate’s Court on 24 August 2005, regularly signed by Judge Reinke.
The guarantee specified in the aforesaid article1(3) does not relate to the act requesting the Member State to grant extradition but is directly connected with the custodial measure, that is to say it is a substantial guarantee concerned with the basic conditions underlying the EAW, which must be subject to jurisdiction. In this procedure, the true guarantee of personal freedom is not the fact that the EAW is issued by a judicial authority but the fact that the warrant is based on a judicial measure.
Moreover, article 6 of the framework decision leaves to the individual Member State the task of determining the judicial authority responsible for issuing (or executing) a European Arrest Warrant, and the Italian implementing law, with regard to the active extradition procedure, provides for certain cases in which the Public Prosecutor’s office is to be responsible for issuing the EAW (article 28 of Law no 69/2005).
Essentially, the alleged breach of the law in respect of the fact that the EWA was signed by the Hamburg Public Prosecutor’s Office, must be excluded.’
This case is cited by:
- Cited – Assange -v- The Swedish Prosecution Authority SC (Bailii, [2012] UKSC 22, Bailii Summary, SC Summary, UKSC 2011/0264, SC, [2012] 2 AC 471, [2012] 3 WLR 1, [2012] 4 All ER 1249, [2013] 1 CMLR 4)
The defendant sought to resist his extradition under a European Arrest Warrant to Sweden to face charges of sexual assaults. He said that the prosecutor who sought the extradition was not a judicial authority within the Framework Decision.