🇮🇹 Italy → 🇺🇸 United States

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.

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 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.

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 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.

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.

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.

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.