European Arrest Warrant: Cassation Court 30560/2025 and Consent for Refusal of Surrender

The European Arrest Warrant (EAW) is an essential tool for judicial cooperation within the European Union, aimed at simplifying the surrender of wanted persons. However, its application can present complexities, especially in balancing efficiency with the protection of individual rights. A recent and significant ruling by the Court of Cassation, Judgment no. 30560 of 2025, has provided fundamental clarifications on the optional refusal of surrender and the role of the issuing State, incorporating crucial indications from the Court of Justice of the European Union (CJEU).

Optional Refusal of Surrender in the EAW: A Matter of Balance

Introduced by Framework Decision 2002/584/JHA and transposed into Italian law by Law no. 69 of 2005, the EAW is based on the principle of mutual recognition of judicial decisions. Although it aims for almost automatic execution, the legislation provides for specific grounds for refusal, some mandatory and others optional. Among the latter, Article 18-bis, paragraph 2, of Law no. 69 of 2005 allows the executing State to refuse surrender when the requested person is a national or resident of its territory and the sentence can be served in Italy. It is precisely on this option that the most recent case law has focused.

Cassation Court Judgment 30560/2025 and the Influence of the CJEU

The Court of Cassation, with Judgment no. 30560 of September 8, 2025, addressed a relevant case involving the defendant D. O. A., annulling with referral the decision of the Court of Appeal of Genoa. This ruling is of crucial importance because it incorporates and applies a fundamental decision of the Court of Justice of the European Union of September 4, 2025, in case C-305/22. The CJEU precisely outlined the boundaries within which the executing State can exercise the optional refusal, introducing an element of dialogue and consent that transforms the nature of this decision.

In the context of executing a European Arrest Warrant, the executing State, if it intends to exercise the optional refusal of surrender referred to in Article 18-bis, paragraph 2, of Law no. 69 of April 22, 2005 – implementing Article 4, point 6, of Framework Decision no. 2002/584/JHA – is required, by virtue of the judgment of the Court of Justice of the European Union of September 4, 2025, C-305/22, to request the consent of the issuing State for the execution of the sentence, stating that the conditions for refusal are met due to the social reintegration needs of the requested person, and also proposing the sentence to be executed, if different from that imposed by the conviction judgment, and setting a reasonable deadline within which the sentencing State must respond. Consequently, following this dialogue, surrender must be ordered if the requested State denies consent or fails to transmit the certificate.

This maxim from the Cassation Court marks a significant change: optional refusal is no longer a unilateral choice. The executing State must now initiate mandatory dialogue with the issuing State. This means that if surrender is to be refused for reasons related to the requested person's nationality or residence and the possibility of serving the sentence in Italy, it is necessary to:

• Request consent from the issuing State for the execution of the sentence.
• Clearly state the reasons for refusal, with particular attention to the requested person's social reintegration needs.
• Propose the sentence to be executed, if different from the original one.
• Set a reasonable deadline for the issuing State's response.

It is crucial to understand that, in case of denial of consent or failure to respond within the deadline, the executing State will still be obliged to proceed with the surrender. This mechanism ensures a delicate balance between the sovereignty of States, the needs of social reintegration, and the imperative to ensure the execution of criminal sentences throughout the Union.

Conclusions: Essential Dialogue for European Justice

Judgment no. 30560 of 2025 by the Court of Cassation represents a fundamental evolution in the application of the European Arrest Warrant. It underscores the importance of a collaborative approach among Member States, guided by the case law of the CJEU. It is no longer a matter of simple automatic application, but a process that requires careful assessment and effective communication, especially when fundamental rights and the prospects of an individual's social reintegration are at stake. For legal professionals, this ruling reiterates that European judicial cooperation, while aiming for efficiency, must always safeguard fundamental principles and consider the human and rehabilitative dimension of punishment.