The European Arrest Warrant and Domestic Legal Orders. Tensions between Mutual Recognition and Fundamental Rights: The Italian Case

This article presents and discusses some recent decisions on the European Arrest Warrant by the Italian higher courts, the Constitutional Court and the Court of Cassation. Though not as challenging to the EAW as the ‘first round’ of European judgments of 2005, they bring however some interesting developments on aspects concerning the enforcement of EAW and domestic provisions related to fundamental rights protection. Secondly, these cases allow analysis of mutual recognition, the principle underlying the whole EAW system. A first element stressed here is the importance of dialogue among European actors on third pillar instruments and more generally subjects involving criminal law and justice administration. Secondly, it is suggested here that there are several views on the EAW and mutual recognition. Analysis of Italian case law reveals that domestic courts are faced with the issue of enforcing EAW and securing fundamental rights protection; in so doing, they remain anchored in the domestic system of legal guarantees, which could lead to divergent solutions across European states. The suggestion made is that mutual recognition requires an active role to be played by courts, that it has systemic implications, and that it requires domestic courts to be able to exercise some political discretion, not so different as under extradition schemes.