Extradition: the Italian Supreme Court on the “expiry of the custodial measure” following provisional arrest for failure to comply with the 40-day time limit

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Extradition: the Italian Supreme Court on the “expiry of the custodial measure” following provisional arrest for failure to comply with the 40-day time limit

By Guido Stampanoni Bassi — Pistochini Avvocati
06 Mag 2026🇬🇧 English🇮🇹 Italian
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Abstract
Judgment No. 18594/2025 of the Sixth Criminal Section of the Italian Supreme Court addresses the issue of the “expiry of the custodial measure” following provisional arrest for extradition purposes, with particular regard to the forty-day time limit provided for under Article 715(6) of the Italian Code of Criminal Procedure and Article 16 of the European Convention on Extradition. The Court held that, within that time limit, the requesting State must transmit not only the extradition request itself, but also all the documents required under Article 700 of the Italian Code of Criminal Procedure and Article 12 of the Convention, including the original foreign custodial order on the basis of which the provisional arrest of the sought person had been executed. Subsequent arrest warrants, even if issued before the formal extradition request, cannot be regarded as sufficient. The Supreme Court also criticised the Milan Court of Appeal for failing to address the specific defence argument concerning the absence of the original arrest warrant, clarifying that such omission cannot be justified by the lack of an Italian translation of the documents, by considerations relating to the conformity of the acts with the domestic law of the requesting State, or by reference to alleged mechanisms for extending the custodial measure.
Full Text

In extradition matters, the Sixth Criminal Section of the Italian Supreme Court (judgment No. 18594/2025) addressed the issue of the “expiry of the custodial measure” following provisional arrest for extradition purposes (under Article 715(6) of the Italian Code of Criminal Procedure, as well as Articles 12 and 16 of the ), taking a position, in particular, on the requirement that the documents to be transmitted by the requesting State within the 40-day time limit must necessarily include the original arrest warrant on the basis of which the sought person had initially been provisionally arrested in Italy for extradition purposes. According to the Court, subsequent arrest warrants issued after the provisional arrest (albeit before the formal extradition request) cannot be regarded as sufficient for that purpose.

Before examining the merits of the issue, the Supreme Court recalled several principles now well established in Italian case law, according to which:

– in extradition proceedings governed by the European Convention on Extradition of 13 December 1957, the provisional coercive measure applied pursuant to Article 715 of the Italian Code of Criminal Procedure must be revoked if, upon expiry of the maximum period of forty days from the arrest, the extradition request together with the supporting documents has not been addressed by the Ministry of Justice of the requesting State to the Italian Ministry of Justice, or has not been transmitted through diplomatic channels, it being irrelevant that extradition itself has not yet taken place within that same period;

– the failure of the supporting documentation attached to the extradition request to arrive within forty days from the application of the custodial measure entails the revocation of the coercive measure, without producing any effect on the continuation of the extradition proceedings themselves;

– considering that Article 700 of the Italian Code of Criminal Procedure expressly provides that extradition may only be granted if the request is accompanied by the judicial decision constituting the legal basis of the request, it follows from both the Convention and the domestic statutory provisions that, in extradition proceedings, regardless of the procedural circumstances giving rise to them, the custodial measure may never continue beyond forty days in the absence of the documents referred to in Article 700 of the Italian Code of Criminal Procedure and Article 12(2) of the European Convention on Extradition, in particular the foreign judicial order imposing the restriction on liberty;

– non-compliance with Article 201 of the implementing provisions of the Italian Code of Criminal Procedure, according to which requests originating from a foreign authority and the related acts and documents must be accompanied by an Italian translation, does not give rise to nullity. Consequently, an extradition decision remains valid even where the request and supporting documentation have not been translated into Italian, since the translation of the documents into English only may be considered permissible under Article 23 of the European Convention on Extradition, and the lack of an Italian translation does not prevent the Italian judicial authority from resorting to the assistance of an interpreter in order to remedy translation omissions concerning documents relevant for the decision to be adopted.

The Sixth Section was called upon to rule on an appeal against a decision by the Milan Court of Appeal rejecting an application for revocation of a custodial measure in prison. The defence application was based on the alleged failure to comply with the obligation to transmit the required documentation within forty days from the provisional arrest, since the requesting State had transmitted, together with the extradition request, an arrest warrant issued after the provisional arrest rather than the original warrant preceding it.

Against that background, the Supreme Court held that “the issue raised by the appellant, centred on the failure to transmit the coercive measure underlying the extradition request, is of decisive relevance in relation to Article 715(6) of the Italian Code of Criminal Procedure, since it is necessary to assess the meaning of the condition laid down therein requiring that the ‘extradition request and the documents referred to in Article 700’ be received by the Ministry of Foreign Affairs or by the Ministry of Justice, in light of the alleged absence, among such documents, of the custodial order issued on 28 May 2024” (namely, the arrest warrant issued by the authorities of the requesting State).

In affirming that principle, the Court criticised — and quashed with remand — the decision of the Milan Court of Appeal for having “failed to address” the defence argument based precisely on the absence of the arrest warrant, clarifying that such omission could not be justified:

– neither by a “generic reference to the receipt of the extradition request by the Ministry of Justice”, since the issue concerned the absence of the supporting documents attached thereto;

– nor by the lack of an Italian translation of the documentation (the Court of Appeal having stated that, since the documents were in English, it would have had to wait for their Italian translation);

– nor by reference to the alleged conformity of the act with the domestic law of the requesting State, such argument being considered “irrelevant”, since the defence challenge concerned the absence of the document rather than its compliance with the requesting State’s domestic legal order;

– nor, finally, by reference to the possible existence of a mechanism allowing an “extension” of the custodial measure by the authorities of the requesting State, an argument described by the Supreme Court as “eccentric”.

In conclusion, where the defence specifically requests judicial scrutiny as to the completeness of the documents transmitted by the requesting State within the forty-day period following the provisional arrest of the sought person — and, in particular, as to the necessary inclusion of the original custodial order on the basis of which the provisional arrest had been executed, notwithstanding the existence of subsequent arrest warrants — it becomes “decisive”, for the purposes of revoking the custodial measure, to verify “whether the arrest warrant (to be understood as the original warrant on the basis of which the provisional arrest had been requested) was effectively transmitted to the competent Italian Ministry, as a prerequisite of the extradition request, having regard to the combined provisions of Article 16(4) of the Convention and Article 715(6) of the Italian Code of Criminal Procedure”.