Italy

So-called passive extradition is the procedure through which a foreign State requests Italy to surrender a person in order to subject that person to criminal proceedings (extradition for prosecution) or for the enforcement of a sentence (extradition for enforcement). In Italy, it is governed by the Code of Criminal Procedure and by any applicable international conventions.

Passive extradition in Italy is primarily governed by Articles 697 to 722 of the Italian Code of Criminal Procedure. At the international level, Italy is a party to the 1957 European Convention on Extradition and its Additional Protocols, as well as to numerous bilateral treaties with individual States. As regards European Union Member States, the European Arrest Warrant (EAW) is governed by Law No. 69 of 22 April 2005, which implemented Council Framework Decision 2002/584/JHA.

Several authorities are involved. First, the territorially competent Court of Appeal, before which the so-called judicial phase takes place and which determines whether the legal requirements for extradition are met. The same Court of Appeal is also competent to impose any precautionary measures aimed at preventing the person sought from absconding, in order to ensure that, should extradition be granted, the requested person has not in the meantime left the jurisdiction. Decisions of the Court of Appeal may be challenged before the Supreme Court of Cassation. The Prosecutor General at the Court of Appeal and the Minister of Justice are also involved; the latter exercises significant powers at every stage of the proceedings, including in relation to precautionary measures, among them the power to decide whether to give effect to the extradition request.

The existence of a treaty or convention is very common. In any event, extradition may also take place in the absence of a treaty, by applying the provisions of the Italian Code of Criminal Procedure. Where no convention exists, or where the applicable convention does not provide otherwise, the Court of Appeal shall render a judgment in favour of extradition if there are serious indications of guilt, or if there is an irrevocable judgment of conviction, and provided that, in respect of the same facts, no criminal proceedings are pending and no irrevocable judgment has been delivered in Italy against the person whose extradition is sought.

Proceedings may be started in two ways: by means of a formal request from the foreign State, transmitted through diplomatic channels to the Ministry of Justice, together with the documentation required by law and by any applicable treaties; or by means of a request for provisional arrest, submitted on an urgent basis—often based on the existence of an Interpol Red Notice concerning the person sought—pending transmission of the full extradition request, which in that case must be submitted in the weeks following the arrest.

Where the Minister of Justice decides to give effect to the extradition request, he or she transmits it, together with the accompanying documents, to the Prosecutor General at the competent Court of Appeal within thirty days of receipt. Within thirty days from the date on which the extradition request is received, the Prosecutor General files his or her submissions before the Court of Appeal. A hearing on the merits is then scheduled in order to decide whether the extradition request should be granted or refused.

If, as usually happens, a precautionary measure has been imposed, a hearing may be scheduled before the hearing on the extradition request in order to decide on any applications seeking the revocation or replacement of that measure.

The decision lies with the territorially competent Court of Appeal, sitting as a panel of three judges. Jurisdiction is determined by the place where the person sought is located. Jurisdiction lies, in order, with the Court of Appeal in whose district the accused or convicted person has his or her residence, abode, or domicile at the time the extradition request reaches the Minister of Justice; failing that, with the Court of Appeal that ordered the provisional arrest under Article 715; or with the Court of Appeal whose President validated the arrest under Article 716. If jurisdiction cannot be determined on any of those grounds, jurisdiction lies with the Court of Appeal of Rome.

Yes. Judgments of the Court of Appeal—both those concerning precautionary measures and those concerning the extradition request itself—may be challenged before the Supreme Court of Cassation.

No. By way of exception, where the judgment by which the Court of Appeal ruled on the extradition request is challenged, the Supreme Court may also act as a court with jurisdiction over the merits.

In the absence of the required documentation—including the measure restricting personal liberty, the description of the facts, the applicable legal provisions, and any relevant judgments—any precautionary measure that has been imposed may cease to have effect if the documentation is not transmitted within the prescribed time limits (40 days under the European Convention on Extradition).

Yes. Subject to reciprocity, the requesting State may participate in the proceedings before the Court of Appeal and the Supreme Court of Cassation through counsel admitted to practise before the Italian judicial authorities.

Yes. The Italian authorities may arrest the person concerned even before the formal extradition request has been submitted.

It is a measure that may be carried out by the judicial police where a request for provisional arrest has been made by the requesting State. The authority that effected the arrest must immediately inform the Minister of Justice and, as soon as possible and in any event no later than 48 hours, place the arrested person at the disposal of the President of the Court of Appeal in whose district the arrest took place, by transmitting the relevant report. Unless the arrested person must be released, the President of the Court of Appeal shall, within the following 48 hours, validate the arrest by order and, where the legal requirements are met, impose a coercive measure.

Yes. An Interpol Red Notice may provide the basis for provisional arrest; indeed, it is treated as equivalent to a request for provisional arrest and results in the individual concerned acquiring the status of a person wanted for extradition purposes.

Once a person has acquired the status of a person wanted for extradition purposes, it is sufficient for the judicial police to verify the data recorded in the Interpol database—for example during a border control or as a result of an accommodation alert—for provisional arrest to be carried out.

It is the system under which hotel operators and other accommodation providers must, within 24 hours of arrival, communicate the identity details of their guests to the territorially competent police authorities.

As a general rule, the requesting State must transmit the full request within 40 days of the provisional arrest. That time limit may vary depending on the applicable convention. In the case of a European Arrest Warrant, different and stricter time limits apply, as these are laid down directly by EU legislation.

If the requesting State fails to transmit the extradition request and its annexes within the prescribed time limit, any precautionary measure should in principle be lifted immediately and the person released. The Italian authorities may not keep the individual in custody beyond that time limit in the absence of a formal extradition request. A fresh request may, however, be submitted at a later stage, provided the legal requirements are met.

Yes. The Court of Appeal may replace custodial detention with less restrictive measures, including house arrest or an obligation to report to the judicial police, after assessing the flight risk and the personal circumstances of the individual concerned.

The Court must rely on concrete and current factors, such as the person’s ties to the territory, the existence of stable family and employment links, the availability of travel documents, and the conduct of the person concerned. The seriousness of the alleged offence alone is not sufficient; what is required is an individualised assessment of the circumstances of the specific case.

In order to obtain a less intrusive measure than custodial detention, it may be necessary to show that the person sought has a connection with Italy or that suitable accommodation is available, such as a residence with relatives living in Italy or other housing arrangements, including accommodation rented by a relative of the person sought.

The requested person has the right to be assisted by counsel of choice or, failing that, by court-appointed counsel. Where a coercive measure has been imposed, the President of the Court of Appeal must, as soon as possible and in any event within five days of the execution or validation of the measure, establish the identity of the person, question him or her, and, after informing the person of the legal consequences, ascertain whether he or she consents to extradition or waives the protection afforded by the specialty principle. The person also has the right to an interpreter if he or she does not understand Italian.

The requested person may declare his or her consent to surrender.

Where the detention proves to have been wrongful, the person sought may be entitled to compensation for wrongful detention.

Yes. You may still be arrested in other countries on the basis of an Interpol Red Notice.

There are several grounds on which extradition must be refused: for example, where the offence is of a political nature; where the person has already been finally tried in Italy for the same facts (ne bis in idem); where the offence is punishable by the death penalty in the requesting State, without sufficient assurances that such penalty will not be carried out; where there is a risk of inhuman or degrading treatment (for example because of prison conditions); where there is a risk of persecution on grounds of race, religion, nationality, or political opinions; or where the offence is time-barred under either Italian law or the law of the requesting State.

Yes. Article 3 of the European Convention on Human Rights constitutes an absolute limit on extradition. If there are substantial grounds for believing that, once extradited, the person would face a real risk of being subjected to torture or to inhuman or degrading treatment or punishment, extradition must be refused irrespective of the seriousness of the offence alleged. Likewise, structurally inadequate prison conditions in the requesting State may justify refusal of extradition or the making of surrender conditional upon the provision of specific assurances.

Italian courts must carry out a concrete assessment of the risk of inhuman or degrading treatment, taking into account reports by international organisations (Amnesty International, Human Rights Watch, CPT), judgments of the European Court of Human Rights, and any other available documentary material. Where a real risk is established, the Court may require the requesting State to provide specific and individualised assurances as to the conditions of detention.

The existence of criminal proceedings pending in Italy in respect of the same facts constitutes a ground for refusal of extradition, in application of the ne bis in idem principle and in light of Italy’s interest in prosecuting the case itself. The Court of Appeal assesses the overlap between the facts underlying the foreign request and those forming the subject matter of the Italian proceedings, as well as the procedural stage reached by the latter.

As a general rule, no. The physical presence of the person on Italian territory is a necessary precondition for the starting and conduct of extradition proceedings. In the absence of the person, no precautionary measures may be imposed and no hearing may be held before the Court of Appeal.