Moldova

Moldova requested the extradition of the requested person for the enforcement of a three-year and six-month prison sentence for theft. The Court of Appeal ordered detention pending extradition, relying on the seriousness of the offence, the length of the sentence and the person’s allegedly brief presence in Italy. The Court of Cassation held that this reasoning was merely apparent because flight risk must be based on specific, concrete and current circumstances drawn from the requested person’s individual situation. The seriousness of the conviction alone was insufficient, particularly where the defence had produced evidence of stable residence, employment and family ties in Italy. As the lower court had also failed to explain why detention in prison was the only suitable measure, the Court quashed the order without remand, declared the detention measure ineffective and ordered the requested person’s immediate release.

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.

In extradition proceedings, the Italian Supreme Court has jurisdiction under Article 718(1) of the Code of Criminal Procedure to decide an application for the revocation or replacement of a precautionary measure only when the case file is before it for the determination of whether the legal conditions for extradition are satisfied. That exceptional jurisdiction does not arise merely because an appeal concerning the coercive measure is pending before the Supreme Court. Applying this principle, the Court ordered the transmission of the case file to the Court of Appeal as the competent court to decide the application for revocation or replacement of the measure.

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.