Switzerland

Switzerland requested the extradition of the requested person for the enforcement of a final custodial sentence concerning drug-related offences and the unauthorised sale of medicinal products. The Italian courts had granted extradition only for drug trafficking and unauthorised pharmaceutical sales, while refusing it for possession of drugs for personal use because that conduct is subject only to an administrative sanction under Italian law and therefore fails the double criminality requirement. On appeal, the requested person incorrectly argued that extradition had also been granted for personal drug use. The Court of Cassation declared the appeal inadmissible, holding that the refusal concerning that offence had already become final and that the extradition order was limited to the offences for which double criminality was satisfied.

Switzerland requested the extradition of the requested person for prosecution in connection with three attacks on bank cash machines involving explosive material. The Italian Supreme Court held that, even where the applicable extradition convention does not expressly require the requested State to assess serious indications of guilt, the Italian judicial authority must not confine itself to a purely formal review of the documents but must conduct a summary assessment of whether the materials disclose evidence against the requested person. In the present case, the arrest warrant contained a detailed description of the alleged offences and identified several incriminating elements, including statements by a co-suspect and DNA traces connected with two of the incidents. The Court held that the defence objections sought an impermissible merits assessment of the evidence, rejected the appeal and upheld the favourable extradition decision.

Extradition and non-recognition of pre-trial detention served abroad by the requested person in connection with the same extradition request: in Italy it is not possible to aggregate periods of detention served abroad pursuant to a decision of a foreign judicial authority; any such claim must instead be raised before the requesting authority that sought extradition from Italy (should the requested person be extradited).

The judgment granting extradition for the enforcement of the overall sanction imposed by the conviction (custodial sentence and inpatient therapeutic measure) is lawful, and it is not necessary for Switzerland to issue a separate extradition title. It appears from the challenged decision that the extradition request concerns a custodial sentence of eight years’ imprisonment and that, on the basis of subsequent information provided by the Swiss Federal Office of Justice, the request also relates to the enforcement of the inpatient therapeutic measure. As also noted by the Court of Appeal, an analysis of the relevant provisions of the Swiss Criminal Code, together with the aforementioned communication from the Swiss Federal Office, shows that: (a) the Swiss sanctioning system is based on a dual-track model of penalties and inpatient therapeutic measures, applicable where the convicted person suffers from a mental disorder (Art. 59); (b) the inpatient therapeutic measure is ordered at the same time as the conviction, as occurred in the present case, where the Assize Court found that the applicant was affected by a mental disorder and that there was a therapeutic prospect capable of reducing the risk of reoffending through the application of such measure; (c) in such cases, the inpatient therapeutic measure is enforced prior to the custodial sentence, and its duration is deducted from the sentence imposed.

In the event that the requested person is not present within the national territory, the indispensable precondition for proceeding with surrender is lacking, and a decision of no grounds to proceed must be adopted. However, the Court considers that the information provided by the defence and by the Swiss authority is not decisive in this respect, as it merely demonstrates a certain tendency of the applicant to move frequently between the Italian and Swiss territories and vice versa. From another perspective, it must also be emphasized that, when expressly consulted, the Federal Office of Justice did not intend to withdraw the extradition request; therefore, an assessment of the merits of the request is required.

Extradition to a State bound by the ECHR cannot be refused on health grounds where: the requesting State provides adequate assurances regarding medical care; and there is no concrete evidence of a real risk of treatment contrary to Articles 2 or 3 ECHR. Mutual trust applies to “first circle” States (such as France), and no specific guarantees are required, even in the presence of serious health conditions, unless a concrete and individualised risk is demonstrated.

Risk of inhuman or degrading treatment and “reliability” of the requesting state: Switzerland is a member of the council of europe, has never been sanctioned for violations concerning detention conditions, and has not been included among the countries generally affected by systemic prison overcrowding. this means that the extradition request does not originate from a jurisdiction that is impermeable to the fundamental principles of the rule of law, nor from one in which such principles, although formally in force, are currently suspended, nor, finally, from a jurisdiction that has adopted prison overcrowding as a deliberate systemic choice or knowingly tolerates its persistence. moreover, the mere allegation of prison overcrowding in the requesting state does not, in itself, constitute a ground for refusing extradition. only in the presence of widespread situations of established incompatibility—manifested in forms attributable to deliberate choices or conscious acceptance by the competent authorities—can a concrete risk arise that a detainee would be subjected to inhuman or degrading treatment. otherwise, it is necessary to identify specific and concrete deficiencies, linked either to the individual’s particular circumstances (such as their state of health) or to actual situations of abuse.

Where an applicable convention – such as the one between Italy and Switzerland – does not provide for an assessment by the requested State of the existence of serious indications of guilt, the Italian judicial authority must not limit itself to a merely formal review of the documentation attached to the extradition request. Rather, it must ascertain that such documentation sets out the reasons why, from the perspective of the requesting State’s procedural system, it was considered probable that the requested person committed the offence underlying the extradition request. Accordingly, in carrying out this review – unlike the regime provided for under Article 705(1) of the Italian Code of Criminal Procedure – the requested State must neither independently assess this requirement nor critically re-evaluate the evidentiary material transmitted. In the present case, the Court of Appeal correctly adhered to the scope of review entrusted to it, highlighting the body of incriminating evidence (consisting of co-defendants’ statements, intercepted communications, and police investigations) on which the Swiss judicial authorities had based the provisional charge against the applicant. By contrast, the applicant sought to engage in an impermissible assessment of the probative value of individual items of evidence, effectively offering a direct – and moreover partial – reinterpretation of the evidentiary record.

The case concerned a Swiss request for extradition from Italy for prosecution in relation to aggravated continuing fraud and forgery of private documents. The alleged conduct involved a fraudulent investment scheme based on representations concerning gold trading and the ownership of mines, supported by allegedly false documents and communications. The Court of Appeal of Bologna held that extradition could be granted only in part. Double criminality was satisfied for the aggravated fraud allegations, which corresponded to fraud under Italian law and were not time-barred. However, extradition was refused for the offences of forgery of private documents, because the corresponding Italian offence had been repealed. The Court also examined whether Italian proceedings concerning similar or related conduct barred extradition. It held that only proceedings concerning the same historical facts and the same injured parties could prevent extradition, not merely proceedings involving analogous conduct or the same general context. Since overlap was established only for one specific fraud allegation already under investigation in Italy, extradition was excluded for that fact alone. Pending Italian proceedings for different facts did not prevent a finding of extraditability, since any decision to postpone surrender or allow temporary surrender fell within the competence of the Minister of Justice at the execution stage. The Court therefore declared the conditions for extradition satisfied for the aggravated fraud offences, except for the fact already pending before the Italian judicial authority, and refused extradition for private-document forgery.