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.

The case concerned a Romanian national sought by Moldova to serve a three-year sentence for facilitating prostitution. The Italian Supreme Court rejected the challenges based on double criminality, alleged discrimination in the revocation of the suspended sentence and the foreseeability of the criminal conviction, holding that these issues either concerned the merits of the foreign judgment or did not disclose an extradition bar. It found, however, that although the information provided by the Moldovan authorities was sufficient as regards the general prison system, it did not adequately address the requested person’s individual risk of reprisals arising from abuses allegedly suffered and reported during a previous period of detention in the same prison. The Court therefore annulled the decision and remanded the case so that specific assurances could be obtained to exclude that concrete and personal risk.

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.

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.

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.

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.