🇮🇹 Italy → 🇺🇸 United States

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 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.

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.

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.

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 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 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.