In cases of extradition to the China, a concrete risk of exposure to inhuman or degrading treatment must be considered to exist (as held by the European Court of Human Rights in Liu v. Poland, 6 October 2022), in light of multiple reliable international sources reporting systematic human rights violations, the tolerated use of forms of torture, and the substantial impossibility for independent institutions and organizations to verify the actual conditions in detention facilities.

In matters of passive extradition to China, where the offence for which surrender is requested is, in abstract terms, punishable by the death penalty, pursuant to Article 698(2) of the Italian Code of Criminal Procedure, surrender cannot be ordered in the absence of a final and irrevocable judicial decision excluding the application of capital punishment in the конкрет case; general assurances provided by the requesting State are insufficient. The Court clarified that the provision set out in Article 3(f) of the treaty between Italy and China does not apply. According to that provision, for the purposes of executing an extradition request, it is sufficient that there are elements excluding a “well-founded fear” of being subjected to “other cruel, inhuman or degrading treatment or punishment”. However, that rule concerns the manner of execution of a penalty necessarily different from the death penalty.

Any divergence from the parameters of the Italian criminal system is, as a rule, irrelevant, unless such divergence is wholly unreasonable and manifestly conflicts with the general principles of legality and proportionality of penalties. Accordingly, extradition to China must be refused in respect of a person accused of conduct classified as fraud under Chinese law, which, under Italian law, would fall within the prohibition of pyramid selling schemes and chain sales under Article 5 of Law No. 173 of 2005. This is because, under the Chinese Criminal Code, that offence is entirely indeterminate as regards the maximum custodial sentence that may be imposed on the applicant if extradited and ultimately convicted, which is incompatible with the fundamental principle of the Italian legal system requiring the legislative predetermination of the maximum penalty.