European Arrest Warrant: A new referral to the Italian Constitutional Court

Abstract

The Italian Constitutional Court has been asked to assess whether articles 18 and 18-bis of Law 69/2005 on the European Arrest Warrant (EAW) comply with the constitutional rights to personal inviolability and health (arts. 2 and 32 of the Constitution). The issue arose from a case before the Milan Court of Appeal concerning an Italian citizen wanted by Croatia for drug-related offences. Medical evaluations confirmed that, although fit to stand trial, he suffers from a long-term psychiatric condition and is at risk of suicide; transferring him to Croatia could interrupt essential therapies and endanger his health.

Neither the EU Framework Decision 2002/584 nor Italian Law 69/2005 provides an explicit ground to refuse surrender on health-related fundamental rights grounds; the only relevant tool is the temporary postponement mechanism for humanitarian reasons (art. 23). The Milan Court of Appeal argues that this safeguard is insufficient because it is temporary, non-adversarial, and not subject to appeal. It therefore questioned the constitutional legitimacy of the current legal framework, recalling both EU fundamental rights principles and relevant case law from the UK recognising disproportionate interference with private life as a legitimate ground to block surrender.

If the Constitutional Court finds the law unconstitutional, Courts of Appeal would be required to refuse surrender when it poses a concrete risk to the person’s health. In such cases, the issuing State could instead rely on Framework Decision 2009/829 on supervision measures as an alternative to detention, allowing control of the suspect in Italy while guaranteeing continuity of care.