Moldova

The European Convention on Extradition does not empower the judicial authority of the requested State to review whether the judgment underlying the extradition request is enforceable, once that judgment has been classified as enforceable by the requesting State. Moreover, under the system established by the European Convention on Extradition, the judicial authority of the requested State is not entitled to review the reasoning of the conviction judgment. Accordingly, the conditions for extradition may be found to be satisfied even where the statement of reasons has not been transmitted, unless the person sought alleges that the foreign proceedings involved a violation of fundamental rights or that the judgment contains provisions contrary to the fundamental principles of the Italian legal order.

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.

Moldova requested the extradition of the requested person for the execution of an eight-year custodial sentence for aggravated fraud. The Italian Supreme Court held that, where qualified sources indicate a general risk of inhuman or degrading treatment in the requesting State, the executing court must obtain complete, current and individualised information on the detention conditions that the person will face. It considered the information supplied by the Moldovan authorities sufficient because it identified the relevant prisons and described the material, sanitary, healthcare and personal-safety arrangements applicable to the requested person. The Court further clarified that the European Convention on Extradition requires the requesting State to produce an enforceable judgment of conviction, but does not require that judgment to be final or irrevocable, and therefore dismissed the appeal and upheld extradition.

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.

Moldova requested the extradition from Denmark of a Romanian-Moldovan national for prosecution, and concerns arose as to whether the prison conditions to which the requested person would be exposed were compatible with Article 3 ECHR and Articles 4 and 19(2) of the EU Charter. In response to requests for supplementary information, the Moldovan authorities provided detailed individualised assurances identifying the prisons and specific cells in which the requested person would be detained, guaranteeing at least 4 sq.m. of personal space and setting out material conditions, medical care and measures against inter-prisoner violence. Despite extensive reports documenting serious structural deficiencies in Moldovan prisons, the Supreme Court held that there was no basis for doubting the credibility of the Moldovan authorities’ statement concerning the specific conditions that could be expected for the requested person. It therefore found no real risk of inhuman or degrading treatment and upheld the decision granting extradition to Moldova.

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.

The case concerned a Moldovan request for extradition from Italy for the execution of an eighteen-year prison sentence imposed for murder. The proceedings followed an earlier annulment by the Italian Supreme Court, which had required the Court of Appeal to obtain specific and updated information from the Moldovan authorities on the prison where the requested person would be detained and on the actual detention conditions, including overcrowding, safety, hygiene and health care. After receiving supplementary information from the Moldovan Ministry of Justice, the Court of Appeal of Bologna held that the risk of inhuman or degrading treatment had been excluded. The Moldovan authorities indicated that extradited Moldovan nationals would be held in designated cells at Chisinau prison, with four square metres of personal space per detainee, adequate ventilation and lighting, separated sanitary facilities, daily outdoor exercise, access to hygiene, food and medical care, including treatment in external health facilities where necessary, and unrestricted access to lawyers on working days. The Court also found that the extradition request was supported by the required documents, that the foreign conviction was final and enforceable, and that double criminality was satisfied. It therefore declared that the conditions for extradition to Moldova were met.

The case concerned a Moldovan request for extradition from Italy for the execution of a final sentence imposed for corruption, together with the cumulation of a previous partially unserved sentence for aggravated fraud. The Court of Appeal of Bologna held that the conditions for extradition were satisfied. The request was supported by a translated final judgment, from which it appeared that the requested person had been able to participate in the Moldovan proceedings and had admitted the charges. Double criminality was also satisfied, since the conduct corresponded under Italian law to corruption and fraud offences. The Court rejected the defence argument that extradition would expose the requested person to treatment contrary to fundamental rights. It held that no concrete evidence had been produced to support that allegation. Referring to Supreme Court case law, the Court stated that the requested person bears the burden of submitting objective, precise, reliable and updated elements concerning detention conditions in the requesting State, capable of showing a real risk of treatment incompatible with fundamental rights. In the absence of such material, and noting that the foreign judgment provided for detention in a semi-closed prison regime, the Court found no obstacle under Articles 698 or 705 of the Italian Code of Criminal Procedure. Extradition to Moldova was therefore granted.

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.