Articles

In matters of extradition to a foreign State, when verifying the existence of reasons precluding the issuance of a decision favourable to surrender which, pursuant to Article 714(3) of the Code of Criminal Procedure, prevent the adoption of a coercive measure intended to ensure its execution, the Court of Appeal is required to assess whether, on the basis of objective and reliable elements, there is a risk that the person to be surrendered will be subjected, in the requesting State, to inhuman or degrading treatment.

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.

This short note addresses the regime governing the limitations to the obligation to extradite under the Extradition Convention between the Member States of the Community of Portuguese-Speaking Countries, namely the grounds for inadmissibility and the optional grounds for refusal. It further considers its relationship with the Portugues Law on the International Judicial Cooperation in Criminal Matters (Law no. 144/99 of 31 August), as the subsidiary legal framework applicable to extradition matters, in order to identify the points of convergence and divergence between the two.

The article examines the entry into force of Protocol No. 16 to the European Convention on Human Rights, which introduced the possibility for the “highest courts and tribunals” of the Contracting States to request advisory opinions from the Grand Chamber of the European Court of Human Rights on questions of principle relating to the interpretation or application of the Convention and its Protocols. After reconstructing the origins and underlying rationale of the mechanism — in particular the strengthening of judicial dialogue between national courts and the Strasbourg Court, as well as the reduction of the Court’s growing caseload — the article highlights the main differences between the Protocol No. 16 procedure and the preliminary reference mechanism before the Court of Justice of the European Union, with particular emphasis on the non-binding nature of advisory opinions delivered by the ECtHR. The contribution further analyses the procedural requirements laid down by the Protocol, the role entrusted to the highest domestic courts, and the first practical application of the mechanism by the French Court of Cassation. Particular attention is devoted to the Italian framework, including the draft legislation concerning the ratification of Protocol No. 16, the identification of the “highest courts and tribunals” entitled to submit requests for advisory opinions, and the scholarly debate regarding the possible inclusion of the Italian Constitutional Court among the courts empowered to make such requests.