Opinion of the Advocate General — ECLI:EU:C:2025:712
Date: 2025-09-18
Language of the case: Italian

Translation C-95/24 – 1 
Case C-95/24 [Khuzdar] i 
Request for a preliminary ruling 
Date lodged: 
6 February 2024 
Referring court: 
Corte di appello di Napoli (Italy) 
Date of the decision to refer: 
6 February 2024 
Criminal proceedings against: 
ATAU 
  
ORDER 
for a request for a preliminary ruling to the Court of Justice of the European 
Union concerning the validity and interpretation of acts of the institutions of the 
European Union (Article 267 of the Treaty on the Functioning of the European 
Union) 
The Corte di Appello di Napoli (Court of Appeal, Naples, Italy), specialised 
division, by operation of law, for preventive measures, […] 
[…] 
in the proceedings for the European arrest warrant pursuant to l. 69/05 (Law 
No 69/05) brought by the Slovak Republic against: 
ATAU, […] 
having regard to the European arrest warrant of 5 October 2015 issued by the 
District Court of Dunajska Streda (Slovakia) for the enforcement of Slovak 
criminal conviction No 3T/219/2009 of 23 August 2010, which became final on 
7 September 2010, sentencing the requested person to a total of five years’ 
imprisonment, a sentence still to be carried out in its entirety; 
[…] [national procedure] 
 
i The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings. 
EN 
REQUEST FOR A PRELIMINARY RULING OF 6. 2. 2024 – CASE C-95/24 
 
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OBSERVES 
1. Facts 
On 5 October 2015, the Slovak Republic issued a European arrest warrant for the 
enforcement of Slovak criminal conviction No 3T/219/2009, delivered by the 
District Court of Dunajska Streda (Slovakia) on 23 August 2010 and which 
became final on 7 September 2010, sentencing the requested person ATAU (alias 
ATAU) to a total of five years’ imprisonment, a sentence still to be carried out in 
its entirety. The requested person was found by the criminal investigation police 
in Italy on 19 June 2023 and was provisionally arrested. The Court of Appeal was 
then called upon to assess the surrender requested by the Slovak Republic by 
means of the European arrest warrant. During the proceedings before the Court of 
Appeal, the requested person declared and demonstrated that he had been lawfully 
and actually resident in Italy for more than five years. He thus applied to the Court 
of Appeal to refuse his surrender and order the sentence imposed on him by the 
Slovak criminal conviction to be carried out in Italy, by means of the recognition 
of that judgment for enforcement in Italy. 
To assess the application, which is not manifestly unfounded, the Court of Appeal 
requested the Slovak Republic to complete the certificate specifying the 
procedural safeguards applied to the convicted person. By memorandum dated 
2 November 2023, the District Court of Dunajska Streda replied that the convicted 
person had not been present at the trial resulting in his conviction. However, he 
had been assisted and represented by a lawyer during the trial. Furthermore, he 
had not been given notice of the date and place of the trial, but had been aware 
that his trial was pending because he had been arrested and placed in pre-trial 
detention in Slovakia on 28 September 2009 for the same offence. On 
15 December 2009, he had been released and placed in a refugee camp in 
Slovakia, but had fled on 31 December 2009. Since he had not returned and had 
not provided an address for service, the Slovak court had been unable to trace him 
or serve the summons on him to appear at the court hearing. As a result, the 
hearing took place in the absence of the convicted person, who had disappeared 
without trace despite being aware of the trial. The convicted person had been 
assisted and represented at the trial by a defence lawyer, at the end of which he 
was given a five-year custodial sentence. 
Since, without further investigation, there do not appear to be any other grounds 
for refusing the surrender, the Court of Appeal must ascertain whether the 
conditions for refusing the surrender have been satisfied, subject to recognition of 
the judgment allowing the five-year custodial sentence imposed on the requested 
person to be carried out in Italy, as per his application. 
KHUZDAR 
 
3 
2. Provisions of national law relied on 
Article 18a(2) of legge n. 69 (Disposizioni per conformare il diritto interno alla 
decisione quadro 2002/584/GAI del Consiglio, del 13 giugno 2002, relativa al 
mandato d’arresto europeo e alle procedure di consegna tra Stati membri) (Law 
No 69, provisions to bring national 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) of 22 April 2005, in the version 
applicable ratione temporis, provides that ‘when the European arrest warrant has 
been issued for the purposes of execution of a custodial sentence or detention 
order, the appeal court may refuse the surrender of the Italian citizen or of a 
person who has been lawfully and actually resident or staying in Italian territory 
continuously for at least five years … provided that it orders such custodial 
sentence or detention to be executed in Italy in accordance with its domestic law’. 
In the case of ATAU (alias ATAU), the documents before the court suggest that 
those conditions were satisfied. 
Article 24 of decreto legislativo n. 161 (Disposizioni per conformare il diritto 
interno alla Decisione quadro 2008/909/GAI relativa all’applicazione del 
principio del reciproco riconoscimento alle sentenze penali che irrogano pene 
detentive o misure privative della libertà personale, ai fini della loro esecuzione 
nell’Unione Europea) (Legislative Decree No 161 laying down provisions to 
bring domestic law into line with Council Framework Decision 2008/909/JHA of 
27 November 2008 on the application of the principle of mutual recognition to 
judgments in criminal matters imposing custodial sentences or measures involving 
deprivation of liberty for the purpose of their enforcement in the European Union) 
of 7 September 2010 provides that, in the event that the Corte di appello (Court of 
Appeal) refuses the surrender requested with a European arrest warrant based on a 
criminal conviction and orders the enforcement of the sentence in Italy, it must 
simultaneously recognise the enforcement in Italy of the foreign criminal 
conviction on which the European arrest warrant is based, where the relevant 
requirements are satisfied. 
Accordingly, under Italian law, the Court of Appeal, where it decides to refuse the 
surrender and orders the enforcement in Italy of the foreign criminal conviction, 
must recognise that judgment pursuant to Legislative Decree No 161 of 
7 September 2010, provided the requirements are satisfied. 
Article 13(1)(i) of Legislative Decree No 161 of 7 September 2010 […] provides 
that ‘the court of appeal may refuse to recognise the conviction in any of the 
following cases:… (i) if the person did not appear in person at the trial resulting in 
the decision to be carried out, unless the certificate states: (1) that, in due time, the 
person either was summoned in person and thereby informed of the scheduled 
date and place of the trial or, by other means, actually received official 
information of the scheduled date and place of that trial in such a manner that it 
was established unequivocally that he or she was aware of the scheduled trial, and 
were informed that a decision may be handed down if he or she does not appear 
REQUEST FOR A PRELIMINARY RULING OF 6. 2. 2024 – CASE C-95/24 
 
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for the trial; or (2) that, being aware of the date on which the trial was scheduled, 
he or she had given a mandate to a legal counsellor, either appointed by the person 
concerned or assigned to him or her, and were indeed defended by that counsellor 
before the court; or (3) that, after having been served with the decision and 
informed expressly of the right to a retrial, or an appeal, in which the person has 
the right to participate and which allows the merits of the case, including fresh 
evidence, to be re-examined, he or she stated expressly that he or she does not 
contest the decision or did not request a retrial or appeal within the applicable time 
frame’. 
In the present case, as mentioned above, the requested person had never been 
informed of the scheduled date and place of the trial, as provided for in 
subparagraph (1), or of the date on which the trial was scheduled, as provided for 
in subparagraph (2), and he did not receive the information referred to in 
subparagraph (3). The Slovak Republic has disclosed that he was aware only that 
the trial was pending, because he had been arrested and placed in pre-trial 
detention for three months. Once released, he had disappeared without a trace, so 
it had not been possible to inform him of the scheduled date and place of the trial 
or of the fact that a decision would be handed down even if he did not appear for 
the trial. 
Therefore, in the present case, even if the Court of Appeal did decide to refuse the 
surrender and order the sentence to be carried out in Italy, it would be unable to do 
so, because the requirements for refusing to recognise the judgment have all been 
satisfied. 
As to the procedural safeguards relating to the European arrest warrant, 
Article 1(1a) of Law No 69 of 22 April 2005 […], in the version applicable 
ratione temporis, provides that ‘when it has been issued for the purpose of 
enforcing a custodial sentence or a detention order imposed at the end of a trial in 
which the person concerned has not appeared in person, the European arrest 
warrant shall also stipulate at least one of the following conditions: … (b) the 
person concerned, informed of the trial, was represented at the trial resulting in the 
aforementioned decision by a legal counsellor, appointed by or assigned to the 
person concerned’. 
It must be concluded therefore that when the convicted person has been informed 
of their pending trial, and is assisted by a legal counsellor, surrender in execution 
of the European arrest warrant is permitted, whereas recognition of the judgment 
in the executing State is not. 
The surrender based on the European arrest warrant is permitted on the sole 
condition that the convicted person, assisted by a legal counsellor, has been 
informed that his or her trial is pending. By contrast, recognition of the judgment 
in the executing State is permitted on the condition that the convicted person, 
assisted by a legal counsellor, has been informed of the date on which the trial has 
been scheduled. 
KHUZDAR 
 
5 
In the present case, those provisions mean that ATAU (alias ATAU) could be 
surrendered to the Slovak Republic, because he had been assisted by a legal 
counsellor and informed that his trial was pending. However, Italy could not, 
despite him actually residing in Italian territory for more than five years and 
having made a request to that effect, refuse the surrender by ordering the sentence 
to be carried out in Italy, because he had not been informed of the date on which 
the trial had been scheduled. 
Paradoxically, therefore, the procedural safeguard envisaged for the convicted 
person as regards recognition of the judgment is more extensive than the 
procedural safeguard relating to the European arrest warrant. This is detrimental to 
the convicted person, rather than being in his favour. 
In the present case, in fact, ATAU (alias ATAU) could not benefit from the 
refusal of surrender resulting from him actually residing in Italy for five years 
because, paradoxically, the procedural safeguard provided by the Slovak Republic 
(notification that the trial is pending) is weaker than the one envisaged for the 
recognition of the judgment (notification that a date has been scheduled for the 
trial). Had that not been the case, it would have allowed the sentence to be carried 
out in Italy if the surrender were refused. 
In such an event, the requested person would forfeit the right to serve his sentence 
in the executing State, not because he had benefited from a more extensive 
procedural safeguard, but paradoxically because he was the recipient of a weaker 
procedural safeguard. He was therefore penalised twice: first by the trial in 
absentia, not having been informed of the date on which the trial was scheduled, 
and subsequently by the surrender to the sentencing State instead of serving the 
sentence in the executing State, even though the other requirements had been 
satisfied. 
This system also leads to the paradoxical conclusion that the same criminal 
conviction cannot be recognised in Italy for the purposes of enforcement, because 
the procedural safeguard applied (notification that the trial is pending) is less than 
the one envisaged (date on which the trial has been scheduled), yet it allows 
surrender to the sentencing State for enforcement. Consequently, within the same 
European judicial area, the same judgment is considered to lack the minimum 
procedural safeguard necessary for its enforcement, but to offer the minimum 
procedural safeguard necessary for surrender to the same sentencing State that 
issued the judgment, granting the defendant the weaker safeguard. 
That finding should be compared with the provisions of EU law to assess whether 
EU law is valid and can be interpreted to the effect that the surrender may be 
refused, after recognition of the judgment for the sentence to be served in the 
executing State, even if there is no procedural safeguard for recognition of the 
judgment, whereas there is a procedural safeguard for the surrender based on the 
European arrest warrant. 
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3. Provisions of European Union law relied on 
Article 4(6) of Council Framework Decision 2002/584/JHA of 13 June 2002 on 
the European arrest warrant and the surrender procedures between Member States 
provides that the judicial authority in the executing Member State may refuse the 
surrender if the warrant has been issued for the purposes of execution of a 
custodial sentence and the sentenced person is staying in, or is a national or a 
resident of the executing Member State and that State undertakes to execute the 
sentence in accordance with its domestic law. 
Article 25 of Council Framework Decision 2008/909/JHA of 27 November 2008 
on the application of the principle of mutual recognition to judgments in criminal 
matters imposing custodial sentences or measures involving deprivation of liberty 
for the purpose of their enforcement in the European Union provides that, in the 
event that the judicial authority of the executing State refuses surrender under 
Article 4(6) of Council Framework Decision 2002/584/JHA of 13 June 2002, the 
provisions of Council Framework Decision 2008/909/JHA of 27 November 2008 
apply to recognition for the enforcement of sentences. 
Article 9(1)(i) of Framework Decision 2008/909/JHA […] provides that ‘the 
competent authority of the executing State may refuse to recognise the judgment 
and enforce the sentence, if: (i) according to the certificate provided for in 
Article 4, the person did not appear in person at the trial resulting in the decision, 
unless the certificate states that the person, in accordance with further procedural 
requirements defined in the national law of the issuing State: (i) in due time: either 
was summoned in person and thereby informed of the scheduled date and place of 
the trial which resulted in the decision, or by other means actually received 
official information of the scheduled date and place of that trial in such a manner 
that it was unequivocally established that he or she was aware of the scheduled 
trial and were informed that a decision may be handed down if he or she does not 
appear for the trial; or (ii) being aware of the scheduled trial had given a mandate 
to a legal counsellor, who was either appointed by the person concerned or by the 
State, to defend him or her at the trial, and was indeed defended by that counsellor 
at the trial; or (iii) after being served with the decision and being expressly 
informed of the right to a retrial, or an appeal, in which the person has the right to 
participate and which allows the merits of the case, including fresh evidence, to be 
re-examined, and which may lead to the original decision being reversed: 
expressly stated that he or she does not contest the decision or did not request a 
retrial or appeal within the applicable time frame’. 
EU law thus expressly provides that the condition for the recognition in the 
executing State of a criminal conviction handed down in the absence of the 
convicted person is the fact that he or she, assisted by a legal counsellor, has been 
informed at least of the scheduled date of the trial. The same provision exists in 
Italian law. 
KHUZDAR 
 
7 
The difference is that, whereas Italian law provides that failing such a procedural 
safeguard, the national court ‘shall refuse recognition’, EU law provides that, in 
such a case, the court of the executing State ‘may refuse to recognise the 
judgment’. Therefore, although under the equivalent Italian law the Court of 
Appeal would be obliged to refuse recognition, under EU law the Court of Appeal 
would have the power, but not the obligation, to refuse it. 
This difference is crucial in the present case: by applying the equivalent Italian 
law, it would not be possible to recognise the judgment for enforcement in Italy 
because ATAU (alias ATAU) had not been informed of the scheduled trial date, 
and therefore the Court of Appeal would have to surrender him to the Slovak 
Republic even if he were entitled to serve his sentence in Italy and had applied to 
do so. Conversely, by applying EU law – the source of the equivalent Italian 
legislation – the court of the executing State would have discretionary power to 
assess whether to recognise the foreign criminal conviction and, if so, to refuse the 
surrender and order the sentence to be carried out in Italy. 
It thus appears that the Italian law transposing EU law in the matter of the 
recognition of criminal convictions, both directly and indirectly through the 
European arrest warrant, conflicts with EU law by providing for the mandatory, 
rather than optional, refusal of recognition in the event that the abovementioned 
minimum procedural safeguards are not observed. 
Accordingly, it must be determined whether EU law is valid and should be 
interpreted to that effect. 
It is therefore necessary to request a preliminary ruling under Article 267 TFEU. 
4. Question referred for a preliminary ruling 
The Court of Justice of the European Union is requested to declare whether the 
combined provisions of the following articles: 
• Article 4(6) of Council Framework Decision 2002/584/JHA of 13 June 
2002; 
• Article 9(1)(i) and Article 25 of Council Framework Decision 
2008/909/JHA of 27 November 2008; 
must be interpreted as meaning that: 
1. the court of the executing State, requested to recognise a foreign 
criminal conviction, has discretionary power, not the obligation, to 
refuse recognition of the judgment, where it appears that the trial 
resulting in that judgment has not afforded the defendant any of the 
procedural safeguards provided for in Article 9(1)(i) of Council 
Framework Decision 2008/909/JHA of 27 November 2008; 
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2. the court of the executing State, requested to order the surrender based 
on a European arrest warrant issued to enforce a judgment, when the 
conditions for ordering the surrender of the convicted person to the 
sentencing State and the requirements for refusing the same have all 
been satisfied, simultaneously ordering that the sentence be carried out 
in the territory of the executing State, has the power to refuse the 
surrender, recognise the judgment and order the enforcement of that 
judgment in its territory, even if the trial resulting in the recognised 
judgment has not afforded the accused any of the procedural 
safeguards provided for by Article 9(1)(i) of Council Framework 
Decision 2008/909/JHA of 27 November 2008. 
[…] [instructions for the registry] 
Naples […] 
[…]