🇮🇹 Italy → 🇺🇸 United States

The United States sought the extradition from Italy of Lee Gilley, charged in Texas with capital murder, an offence punishable by death or, alternatively, mandatory life imprisonment without parole. Although the U.S. Embassy had assured the Italian Government that the death penalty would not be imposed, the Court considered that an email from the competent prosecuting authority raised uncertainty as to whether the prosecution had definitively waived capital punishment and therefore found that the absolute level of protection required under Italian constitutional principles had not yet been established. The Court also applied the two-stage approach developed by the ECtHR in Sanchez-Sanchez v. the United Kingdom and held that, since a real risk of life imprisonment without parole had been established, further information was required on mechanisms capable of providing a genuine prospect of release or sentence review. It therefore requested supplementary information from the U.S. Department of Justice under Article XI of the Italy–U.S. Extradition Treaty, while rejecting the requested person’s application for release because of flight risk.

The case concerned a person held in custody in Italy pending extradition proceedings before the Court of Appeal of Bologna. The defence sought revocation or substitution of the custodial measure, arguing that the requested person’s health conditions were incompatible with prison detention. The Court of Appeal rejected the application, relying on the continuing risk of flight and on a prison medical report which considered detention compatible with the person’s health, without ordering an independent expert assessment. The Italian Supreme Court annulled that decision. It held that, where an application for revocation or replacement of custody is based on alleged incompatibility between the person’s health conditions and prison detention, the court must order medical assessments in expert form unless the alleged incompatibility is unsupported by adequate justification or the situation is clearly compatible with detention. That was not the case here. The prison medical report did not provide a stable and conclusive clinical picture, referred to the need for constant monitoring, and did not clarify whether the necessary diagnostic and therapeutic measures could be adequately and promptly provided within the prison system or in a prison medical facility. Only after such assessment could the court properly evaluate the continuing need for custody, the concreteness of the risk of flight, and the possible adequacy of less restrictive alternative measures. The order was therefore annulled with remand for a fresh assessment.

The case concerned a United States request for extradition from Italy for prosecution on a charge of conspiracy to commit money laundering. The Court of Appeal had declared the conditions for extradition satisfied, subject to the condition that any extradition detention served in Italy be credited against a sentence eventually imposed in the United States. The requested person appealed, raising several objections, including alleged defects in the extradition request, the subsequent substitution of the extradition title following a Grand Jury indictment, lack of United States jurisdiction, insufficient evidentiary basis, breach of speciality, disproportionate punishment and the risk of inhuman or degrading detention conditions. The Italian Supreme Court rejected all grounds except the complaint concerning detention conditions. It held that the replacement or formal development of the extradition title during the proceedings did not bar extradition where the factual basis remained the same and the new title was submitted before the Court of Appeal’s decision. It also held that Italian courts are not required, in extradition to the United States, to review the existence of United States jurisdiction as a ground for refusal, and that the “reasonable basis” requirement under the Italy–US extradition treaty does not require an autonomous assessment of serious evidence of guilt. The Court further rejected the argument that the maximum penalty of twenty years for money laundering conspiracy was, in itself, manifestly disproportionate. However, it found that the Court of Appeal had failed to properly address the defence submissions on detention conditions. The defence had relied not only on NGO material but also on official United States prison standards suggesting that personal space could ordinarily fall below three square metres per detainee. This was a qualified source capable of raising a potential Article 3 ECHR issue. The Court therefore held that the Court of Appeal should have sought complete, current and individualized information from the United States on the specific detention conditions that would apply in case of surrender. The judgment was annulled with remand for a new assessment limited to that issue.

In extradition matters, decisions concerning family contacts issued by the Court of Appeal are subject to appeal pursuant to Article 111(7) of the Italian Constitution, both when the Court acts as the judicial authority conducting the proceedings and, after the extradition judgment has become final, as the execution judge. The Court of Appeal may not reject a request for telephone conversations (including video calls) with the wife and minor child of the requested person merely by referring to obstructive reasons “for security purposes” or to communications received from the U.S. authorities. In the present case, there was no independent assessment showing that, having regard to the specific arrangements for the telephone communications and to the special protection afforded to contacts with minor children, there actually existed security concerns or a risk of interference with evidence.

General Prosecutor's speech - by which the Office starts the extradition proceedings - does not fall either among the acts for which a written translation is mandatorily required, nor among those — to be considered essential for the accused to understand the charges against him — for which the judge may order a translation ex officio or upon request of a party. The case concerns a sought person who, at the time the application was filed, was fully aware of the allegations against him, having already been served with a pre-trial detention order, duly translated for him.

The request by the Minister of Justice for the revocation of the custodial measure leaves no room for discretion, as the law provides that “revocation shall always be ordered if the Minister of Justice so requests.” In such cases, where the proceedings are pending before the Court of Cassation, that Court has jurisdiction to decide on the revocation of the measure, and the immediate release of the person sought for extradition must be ordered.

The failure or delay in transmitting the documents, expressly required by the Treaty, to the Ministry of Justice and/or the Ministry of Foreign Affairs entails the immediate loss of effectiveness of the precautionary measure. Indeed, since the matter concerns restrictions on personal liberty, the mandatory time limits laid down by the treaty provisions and by the corresponding rules of the Code of Criminal Procedure must be regarded as essential and applied with the utmost strictness (as affirmed by the Constitutional Court).

The requested person sought the revocation of detention pending extradition to the United States, or its replacement with house arrest subject to electronic monitoring, relying on his family ties, employment and residence in Italy. The Supreme Court held that flight risk in extradition proceedings must be assessed by reference to the purpose of securing surrender rather than solely according to the ordinary criteria applicable in domestic criminal proceedings. The Court found that the requested person’s recent presence in Italy, uncertain employment and housing situation, international mobility, access to financial resources and foreign connections supported a concrete and current risk of absconding. It also held that house arrest with electronic monitoring would not adequately prevent flight and that the effects of lawful and proportionate detention on family life did not, in themselves, amount to a breach of Article 8 ECHR.

The decision on an extradition request—even where it takes the form of a ruling of no need to proceed due to the person’s absence from the national territory—falls within the jurisdiction of the Court of Appeal sitting in its collegiate composition, and not of a delegated judge. Accordingly, where, as in the present case, the delegated judge has exercised a power that the legal system reserves to the Court of Appeal, the impugned decision must be deemed affected by absolute nullity for lack of judicial capacity, as it entails a violation of the constitutional principle of the natural judge pre-established by law.

The particular complexity of the case, including procedural and substantive issues raised by the Defence, may justify—where analyses and further inquiries are required—the extension of the custodial measure. Such activities also include engaging in communications with foreign authorities within the framework of the so-called Petruhhin mechanism.

The requested person challenged his extradition from Italy to the United States on several grounds, including allegedly inadequate detention conditions, the failure to transmit the original arrest warrant underlying the provisional arrest, lack of double criminality and the risk of a subsequent reclassification of the charges into an offence punishable by death. The Supreme Court held that the official information supplied by the United States was sufficiently specific to exclude a real risk of inhuman or degrading treatment. It further ruled that the failure to transmit the original warrant was cured by the subsequent production, together with the extradition request, of a new warrant issued for the same offences following indictment, since the extradition title may be formally replaced before the Court of Appeal decides the case. The complaints concerning double criminality and the death penalty were also rejected, and extradition was upheld.

Extradition to the United States and loss of effectiveness of pre-trial detention in the absence of a timely extradition request (and supporting documents) within 45 days The extradition treaty between Italy and the United States provides that, within 45 days of the arrest, the United States must transmit to Italy the formal extradition request together with the documentation required under Article X. The purpose is to prevent provisional arrest from turning into prolonged detention without the formal legal basis constituted by a proper extradition request. In the present case, the arrest was carried out on 10/10/2025, from which date the above-mentioned peremptory time limit began to run. Since the Court of Appeal rendered its decision at a time when, within the mandatory time limits set by the Treaty, neither the extradition request nor the required documentation had yet been received — as was instead necessary — the challenged order must be quashed without remand and the custodial measure currently in force must be revoked.

The requested person challenged the refusal to replace detention pending extradition to the United States with house arrest. He argued that a note transmitted by the United States Department of Justice could not be used because the requesting State may participate in domestic extradition proceedings only under the conditions laid down by Article 702 of the Italian Code of Criminal Procedure. The Supreme Court rejected that argument, holding that the note formed part of the documentation supporting the extradition request and did not amount to the requesting State’s formal intervention or participation in the proceedings. In any event, the information contained in the note had merely reinforced a flight-risk assessment already based on other factors, including the inadequacy of the proposed residence, the absence of stable ties with Italy, substantial financial resources and the possibility of obtaining accommodation abroad. The appeal was dismissed and detention was maintained.

The replacement by the requesting State of the extradition title for the same facts, prior to the decision of the Court of Appeal, does not constitute a ground precluding a finding of extraditability. It has been held that “there is nothing to prevent, provided that the cause of action remains unchanged, the legal basis of the extradition request from being subsequently and formally replaced by the requesting State before the Court of Appeal renders its decision. Such a novatio integrates the extradition request, thereby becoming part of it, and does not infringe any defence rights, since the person concerned is made aware of it prior to the decision.”

The requested person challenged his extradition from Italy to the United States for conspiracy, computer fraud and money laundering, principally alleging a risk of inhuman or degrading treatment at the Essex County Correctional Facility. The Supreme Court held that the Court of Appeal had adequately investigated the individual risk through three requests for supplementary information and could rely on the official assurances supplied by the requesting State. The existence of organisational deficiencies or isolated incidents of violence did not establish a concrete risk of systemic violations of fundamental rights. The Court also found that converting criminal proceeds into bitcoin could satisfy double criminality by corresponding to the Italian offence of self-laundering. The further complaints concerning speciality, proportionality of punishment, credit for time spent under house arrest and the right to a fair trial were rejected as hypothetical or unfounded. Extradition was therefore upheld.

The United States requested the extradition of a Russian-German national from Italy for offences connected with the operation of a cryptocurrency exchange platform and money laundering. Germany subsequently issued a European Arrest Warrant concerning conduct allegedly overlapping with the facts underlying the extradition request. The Supreme Court quashed the decision authorising extradition because the Court of Appeal had relied on a decision issued in the separate EAW proceedings without formally introducing it into the extradition case or allowing the parties to comment on it, thereby breaching the adversarial principle. The Court further held that the requested judicial authority must activate the Petruhhin notification mechanism by informing the member state of nationality and allowing it a reasonable period to take appropriate action. In addition, where an EAW and a third-country extradition request coexist, the judicial authority must seek the prior opinion of the Minister of Justice under the EU-US Extradition Agreement before deciding which request should take precedence. The case was remitted for a new decision.

In extradition matters, the seizure of the corpus delicti and of items pertaining thereto, ordered on an urgent basis by the judicial police within the framework of an extradition procedure, must be validated by the Court of Appeal. The latter is required to provide reasons—on the basis of the applicable conventional framework, as well as Article 714(1) of the Italian Code of Criminal Procedure, insofar as not derogated—regarding the existence of a nexus of pertinence between the seized assets and the offence underlying the extradition request, through an assessment of the evidentiary needs put forward by the requesting foreign authority (in the present case, a seizure carried out by the judicial police in the context of an extradition procedure initiated by the United States of America).

The requirement of a custodial sentence exceeding one year, as provided for by Article II of the bilateral Extradition Treaty between Italy and the United States of America of 13 October 1983, ratified by Law No. 225 of 26 May 1984, for the purposes of extraditability to either State, must be understood as referring to the maximum statutory penalty provided for under the laws of both countries for the offence forming the subject of the extradition request.

In extradition proceedings, the international ne bis in idem principle does not preclude surrender where a final judgment has previously been delivered, against the same person and in respect of the same facts, by a state that is not a member of the European Union. Applying this principle, the Supreme Court dismissed the appeal against extradition to the United States of a person who had already been convicted in Switzerland for the same facts.

With regard to the issue of limitation periods under the law of the requesting State, international practice relating to the application of treaties that provide for the statute of limitations as a ground for refusal of extradition shows that it is not for the requested State to autonomously and directly determine whether the limitation period has expired. This is for the obvious reason that such an assessment may involve complex legal evaluations that must be carried out exclusively by the authorities of the requesting State, as also affirmed, for example, in the Explanatory Reports prepared by the Council of Europe for the 1957 European Convention on Extradition and its Fourth Protocol. Accordingly, it is for the requesting State to provide, where appropriate and even upon request by the requested State, information as to whether or not the “prosecution is time-barred”. Such indications, being official and formal in nature, cannot be subject to further verification nor, a fortiori, to review by the requested State.

In extradition proceedings, the judicial authorities of the United States of America—which are constitutionally bound to comply with international treaties—are bound by the rule of speciality laid down in Article XVI of the bilateral Extradition Treaty between Italy and the United States of 13 October 1983. Under that provision, in the absence of the consent of the requested State or conduct by the extradited person amounting to an implied waiver, the requesting State may not detain, try or punish that person for acts committed prior to surrender other than those for which extradition was granted.

Flight risk: the reasoning of the Court of Appeal is adequate and comprehensive where it relies on the occasional and precarious nature of the applicant’s presence in Italy, as well as the absence of any genuine ties to the national territory, as elements demonstrating a concrete risk of flight.

Failure of the translation of the precautionary measure order: in extradition proceedings for surrender abroad, the failure to translate the order imposing a custodial measure in respect of a foreign national who does not understand italian results in its nullity, with the consequent regression of the proceedings to the stage at which the invalid act was carried out, for the purpose of translation and renewal of the subsequent acts.

In matters of extradition of a national of a Member State of the European Union to a third State, the requested Member State, in application of the notification mechanism outlined in the judgment of the Court of Justice of the European Union (Grand Chamber, 6 September 2016, C-182/15), is required to inform the State of nationality also where that State’s domestic law alone provides nationality as a ground for refusing surrender. This is in order to enable that State to issue, in turn, a European Arrest Warrant and request surrender for the purpose of prosecuting the same acts.

In extradition proceedings, the international ne bis in idem principle applies only where a final foreign criminal judgment has determined the responsibility of the same person for the same offence. It does not apply to a previous decision refusing extradition issued by another State. The Court also held that, under the Italy-US Extradition Treaty, extradition may be granted for the US offence of conspiracy even though it does not fully correspond to the Italian offence of criminal association, provided that double criminality exists for the offences forming the object of the conspiracy. The appeal against extradition to the United States was declared inadmissible.

The absence of the person sought for extradition, even if due to a “deliberate escape,” results in a ruling that the case should not proceed; the presence of the person sought for extradition in the requested State is an essential prerequisite for the application of the extradition process: if that person is no longer within the territory of the Italian Republic, this essential prerequisite is no longer met

Traditional extradition treaties refer to institutions of the criminal law of individual States — such as double criminality — for the specific purpose of allowing the requested State to assess the 'recognisability' and therefore the acceptability of the punitive claim of the requesting State, thereby ensuring the requirement of reciprocity. As regards criminal thresholds, the bilateral treaty with the United States contains no specific provisions on this point, which means that the double criminality requirement must be assessed according to the ordinary rules — that is, by way of a concrete, in concreto verification.

The United States requested the extradition of the appellant to face charges of conspiracy, computer fraud, bank fraud and currency smuggling. The appellant argued, inter alia, that an earlier refusal of the same extradition request by Spain created a ne bis in idem bar, that the offences did not satisfy the double-criminality requirement and that the prosecution was time-barred under Italian law. The Supreme Court held that the Spanish decision, which was based on the absence of assurances concerning the place where any sentence would be served, did not amount to a final determination on the merits capable of preventing Italy from considering the request. It further held that conspiracy and the fraud charges satisfied the applicable treaty requirements, whereas currency smuggling had been decriminalised in Italy and therefore failed the double-criminality test. The judgment was consequently quashed without remand only in respect of the currency-smuggling charge, while the appeal was dismissed in all other respects.

Extradition, difference in penalties and risk of a “de facto” life sentence: case law has already addressed the issue of the sentencing regime under united states criminal law, which provides for higher maximum penalties for certain offences than those applicable under italian law. the possibility that a life sentence may be imposed does not, in itself, constitute a ground for refusing a decision granting extradition for prosecution to that country, given that the us legal system provides for various mechanisms which, depending on the detainee’s conduct, may allow for early release even in the case of a life sentence, albeit on the basis of discretionary assessments by different public authorities—unless the requested person demonstrates a real risk of being subjected to inhuman or degrading treatment contrary to article 3 of the echr.

The Court of Appeal must refuse extradition “where reasons of health or age entail a risk of consequences of exceptional gravity for the requested person.” Such a ground for refusal may apply not only where adequate medical treatment cannot be ensured in the requesting State, but also where the extradition procedure itself is liable to prejudice the person’s health. In particular, such prejudice does not arise from any negative impact on the individual’s health, but only where extradition may result in consequences of exceptional gravity, namely serious and objectively verifiable pathological effects. Accordingly, the Court cannot confine its assessment to verifying whether the healthcare facilities in the requesting State are adequate to meet the person’s therapeutic needs, but must also take into account the concrete impact—and thus the potential adverse effects—of the surrender procedure on the requested person’s health. This includes, for example, the difficulties and possible complications arising from the transfer abroad or the need to avoid interruption of ongoing medical treatment.

Under the framework governed by the bilateral treaty of 13 october 1983, the possibility that a life sentence may be imposed does not constitute a bar to the issuance of a favourable extradition decision. this is due to the existence, within the united states legal system, of various mechanisms which, in relation to individuals sentenced to life imprisonment, may allow for early release—albeit on the basis of discretionary assessments by different public authorities—or, in any event, for commutation where humanitarian grounds or progress in the rehabilitative process are established. this is without prejudice to the situation where the requested person specifically alleges the existence of a real risk of being subjected to inhuman or degrading treatment, contrary to article 3 of the European Convention on Human Rights.

The case concerned an extradition request by the United States for two requested persons accused in the Southern District of New York of conspiracy to launder money and conspiracy to distribute narcotics. The requested persons challenged the surrender decision on several grounds, including lack of translation of the extradition request, insufficiency of the supporting documents, lack of serious indications of guilt, absence of double criminality, and the existence of related criminal proceedings in Italy. The Italian Supreme Court held that, under the Italy–United States extradition treaty, the Italian court is not required to carry out an autonomous assessment of the evidential basis of the accusation, but only to verify that the summary of facts explains why, from the perspective of the requesting State, it is probable that the requested persons committed the offences. The Court also held that double criminality does not require exact correspondence between the legal classifications in the two systems: the US offence of conspiracy may correspond to Italian associative offences, including criminal association and drug-trafficking association. As to the alleged Italian proceedings, the Court found no total identity of facts and held that any territoriality-based refusal under the treaty was optional and fell within the competence of the Minister of Justice, not the judicial authority. The appeals were therefore dismissed and the extradition order upheld.