Moldova

Extradition requested in relation to two separate convictions, but transmitted by the Italian Minister of Justice with respect to only one of them (without mentioning the other). Stating — as argued by the Prosecutor – that this was merely a “clerical error in the transmission note” is debatable, as there is no certainty as to the position that the Minister of Justice intended to take with regard to the extradition request relating to the second judgment. The ministerial silence concerning the “second judgment”—especially when contrasted with the explicit stance taken on the “first judgment”—leaves room for both possible interpretations: on the one hand, the hypothesis of a material error; on the other hand, an implicit expression of intent not to proceed with the extradition request. Accordingly, interpreting such silence one way or the other is, from a logical standpoint, entirely open to dispute. It is also possible that the theory of a material error will ultimately prove to be correct in practice. But it is equally possible that the alternative explanation is the “true” one. Preferring one hypothesis over the other—by interpreting an equivocal element—risks encroaching upon a sphere that, as noted, falls within the prerogatives and responsibilities of the Minister.

A judgment rejecting an extradition request — even where such rejection follows the mere withdrawal of the request by the requesting State — precludes the adoption of a subsequent decision granting extradition following the submission by the same State of a new request concerning the same facts. On the contrary, a decision of a purely procedural nature (such as one based on the absence of the requested person from the national territory) is not capable of producing the preclusive effect. Accordingly, even if the sought person is no longer present within Italian territory, the person has an interest in obtaining a decision on the merits rather than a merely procedural ruling. However, if the Court has already obtained and deemed adequate the assurances requested from the requesting State, it may no longer issue a judgment rejecting the extradition request on the merits, but only a decision of “no grounds to proceed”.

Prison conditions in Moldova: where an alert situation exists, arising from the established presence of risk conditions, the necessary assessment by the Italian courts requires that specific assurances be obtained from the issuing State. Such assurances cannot be limited to general statements, but must be individualized in relation to the situation of the person concerned by the surrender proceedings. Moreover, the scrutiny of the guarantees regarding the treatment of the requested person must be all the more rigorous, considering that the offence for which the conviction was issued would not be classified as serious under our legal system.

Pursuant to Article 16(4) of the European Convention on Extradition, provisional coercive measures applied to a person subject to extradition proceedings shall be revoked if, within forty days from the provisional application of such measure, the request for extradition and the supporting documentation have not been received by the Ministry of Foreign Affairs or the Ministry of Justice.

The Court of Appeal must assess, including by requesting supplementary information, the circumstances alleged by the person concerned regarding the risk of being subjected to inhuman or degrading treatment, obtaining “individualised” information on the detention regime that will be applied to the extraditee and evaluating, in addition to the general conditions existing in the prisons of the requesting State, also in light of his or her age and state of health, whether necessary by seeking assurances that the person concerned will be able to continue receiving treatment within the penitentiary facilities of the requesting State. Moreover, in several rulings, the Supreme Court has excluded the risk of persons extradited to Moldova being subjected to degrading treatment, precisely by relying on the reliability of the information provided by the Moldovan institutional authorities.

In extradition proceedings, the so-called "Petruhhin mechanism", although applicable during the pretrial phase, always requires citizenship of an EU Member State: this mechanism, actually, does not apply indiscriminately, but only to the benefit of persons for whom the provisions of the Treaty on European Union (TEU) regarding Union citizenship and Article 18 of the Treaty on the Functioning of the European Union (TFEU) give rise to the applicability of the Treaties

Surrender may be granted where the assurances provided exclude the existence of impediments, insofar as they are based on up-to-date and individualized information relating to the situation of the person concerned by the surrender proceedings, both as regards the adequacy of the penitentiary facilities and the actual treatment that will be afforded to the requested person with reference to the detention conditions in the receiving institutions. The defence submissions are, in fact, generic, as they merely raise doubts as to the reliability of such assurances, relying on information predating that acquired in the proceedings and failing to engage with the factual elements set out in the challenged decision, which specifically records the space and conditions guaranteed to the applicant in both penitentiary institutions.

Where information from authoritative and reliable sources is available—first and foremost in light of the findings of the european court of human rights in judgments concerning the requesting state, as well as the reports of 30 june 2016 and 13 december 2018 of the european committee for the prevention of torture of the council of europe (cpt), and the united nations report of 21 december 2017 on prison overcrowding and degrading treatment in moldovan prisons—the judicial authority must assess and weigh the concrete risk that the requested person may be exposed to inhuman or degrading treatment. Such risk must be evaluated in connection with the conditions of detention in the prisons of the requesting state, particularly where linked to overcrowding or other structural, rather than merely contingent, deficiencies.

The requested person must be informed of the subject-matter of the extradition proceedings. Accordingly, where such information did not cover additional episodes of fraud described in the custodial order subsequently transmitted in support of the extradition request, this gives rise to a ground of nullity. Indeed, in order to safeguard defence rights, once the subject-matter of the extradition proceedings has changed, the judicial authority must order the appearance of the person concerned; failure to do so results in nullity for violation of the right of defence and, consequently, in the invalidity of the acts carried out in the proceedings.