The absence, in the requesting State, of effective protection of the guarantee of judicial impartiality, viewed from an objective standpoint, constitutes a bar to surrender, since that guarantee forms part of the essential core of the right to a fair trial and of the rights of the defence, in accordance with the fundamental principles of the legal order, as guaranteed by the Constitution and by supranational instruments. In the case at issue, the person injured by the offences charged against the requested person had sat on the judicial panel as reporting judge, had also dealt with the preliminary issue of his own incompatibility, had issued the arrest warrant, and had drafted the extradition request.

The case concerned Brazil’s request for the extradition of a former Brazilian parliamentarian, also holding Italian citizenship, for the execution of custodial sentences imposed by the Brazilian Supreme Federal Court for offences relating to unlawful access to judicial information systems and ideological falsification. The defence opposed extradition on several grounds, arguing that the proceedings in Brazil had violated fair trial guarantees, that the requested person had been subjected to political and judicial persecution, that the Brazilian Supreme Federal Court lacked impartiality, and that detention in Brazil — in particular in the women’s prison facility indicated by the Brazilian authorities — would expose her to a risk of inhuman or degrading treatment. The Court of Appeal of Rome first held that the late production of documents by the parties was admissible, since the strict five-day time limit for defence memoranda does not apply to documentary evidence in extradition proceedings and the material had been acquired and discussed at the hearing. On the merits, the Court found that the conditions for extradition under the Italy–Brazil treaty and Italian procedural law were satisfied. It rejected the objections based on fair trial and political persecution, holding that the extradition court could not reassess the merits of the foreign criminal proceedings and that the material relied on by the defence did not establish a flagrant denial of justice or a discriminatory prosecution. As to detention conditions, the Court considered the specific information and assurances provided by Brazil concerning the intended women’s detention facility, including separation from other categories of prisoners, access to medical care and educational activities, monitoring by institutional bodies, and available safeguards against abuse. The Court therefore concluded that the alleged risks had not been shown to be concrete, individualized and sufficiently serious to bar extradition. Extradition was granted, subject to the ordinary treaty and statutory safeguards on speciality and subsequent surrender.