Article 6 of the Italy–Chile Treaty provides that extradition may be refused if, at the time of the request, the person sought is a national of the requested Party, unless such nationality was acquired for the purpose of preventing extradition. Although the Court of Appeal’s assessment as to the alleged instrumental nature of the citizenship application is certainly incorrect (since the application was submitted in 2011, i.e., at a time not suspect because it predates the commission of the offences underlying the extradition request), it must nevertheless be noted that the optional refusal is entrusted to the discretionary assessment of the Minister of Justice, as correctly stated by the Court of Appeal. This constitutes the exercise of a power expressly provided for in accordance with Article 26 of the Constitution, which allows the extradition of nationals when it is provided for by international conventions, without prejudice to the possibility of an optional refusal of surrender based on a discretionary evaluation entrusted to the executive branch and outside the jurisdiction of the judicial authority.

Presence in the national territory as a prerequisite for extradition: the presence in the italian territory of the person whose extradition is sought constitutes an essential prerequisite for the request of the foreign state. it follows that, where it is established that the requested person is no longer present in italy, the conditions for ruling on extraditability are not met and the court must declare that there is no need to proceed.

In the context of the extradition of a citizen of a European Union Member State to a third country, the obligation to inform the Member State of nationality arises only where the requested person is physically present within the territory of the European Union at the time the extradition request is made. No such obligation exists where the person is already outside the EU territory because he or she has already been materially surrendered to the requesting State pursuant to a prior final extradition decision. (Case concerning a German national already extradited to Chile, against whom a supplementary extradition procedure was initiated in relation to a different criminal offence.)

The case concerned the enforced disappearance of a detainee during the period immediately following the 1973 military coup led by Augusto Pinochet in Chile. The requested person, a former military officer, was sought for prosecution in connection with the kidnapping, detention, torture and disappearance of the victim, who was never found. The defence argued that the offence was time-barred under both Italian and Chilean law and that the requested person had merely followed superior orders. The Court held that the historical facts amounted to a complex criminal conduct equivalent, under Italian law, to kidnapping combined with voluntary homicide and constituting crimes against humanity not subject to statutory limitation periods. It further found sufficient evidentiary material linking the requested person to the victim’s unlawful detention and disappearance and therefore declared the conditions for extradition to Chile fulfilled.