Peru

The requested person challenged the refusal to replace extradition detention with house arrest and electronic monitoring after the judicial decision authorising extradition to Peru had become final. The Italian Supreme Court held that precautionary needs and judicial review of their continued existence extend into the subsequent administrative phase of extradition, during which statutory maximum time limits also apply. Courts must therefore remain able to assess whether concrete and current precautionary needs, particularly flight risk, still justify detention or instead require its attenuation or revocation. The Court distinguished this situation from detention ordered during the administrative phase under Article 704(3) of the Code of Criminal Procedure for the imminent execution of the ministerial decree and the physical surrender of the requested person, which is functional to immediate delivery and does not depend on a separate assessment of precautionary needs. Since the Court of Appeal had failed to address the request for a less restrictive measure, the order was annulled and remitted for reconsideration.

The extension of the time limits of custodial detention ordered for extradition purposes — sought by the Prosecutor General pursuant to Article 714(4) of the Italian Code of Criminal Procedure — must be decided by the Court of Appeal, failing which the decision is void under the intermediate nullity regime, after a concrete and effective adversarial exchange between the parties. Such exchange does not require a participatory chamber procedure, but may also take place in written form.

The Court may place particular emphasis on the seriousness of the offences for which the person is sought (murder and robbery) and on the corresponding penalties, as well as on the circumstance that the individual is unlawfully present in the national territory, lacking a residence permit. Although some arguments relied upon are not entirely pertinent (such as the alleged unreliability of electronic monitoring devices—so-called “electronic bracelets”—in ensuring compliance with custodial requirements, “as unfortunately demonstrated by numerous news reports”), the reasoning of the Court of Appeal is primarily grounded on the seriousness of the offences for which the person is sought and the severity of the applicable penalties, in addition to the fact that the individual is illegally present in the national territory. These elements consistently led the Court to consider as recessive the circumstances put forward by the defence, namely that the applicant has relatives in Italy willing to accommodate him and that he carries out undeclared work. This constitutes a reasoning that is by no means merely apparent and, as such, is not subject to challenge at this stage. The appeal, in fact, alleges an erroneous assessment of the elements underlying the decision, thus raising an issue of reasoning which is not reviewable under Article 719 of the Italian Code of Criminal Procedure.

The requirements of concreteness and immediacy of the risk of flight, for the purpose of applying coercive measures, must be assessed by the precautionary judge on the basis of specific indicators capable of demonstrating—even inferentially—the existence of a real and foreseeable risk that the requested person may abscond in the near future, such as to justify the imposition of a restrictive measure. The severity of the sentence to which the person would be exposed in the event of surrender does not, in itself, constitute a relevant circumstance for these purposes.