🇮🇹 Italy → 🇨🇳 China

Compensation for wrongful detention is not payable where, at the time of the arrest and the subsequent imposition of the custodial measure, the arrest of the person concerned was entirely lawful and only thereafter a ruling of inadmissibility was issued due to the disappearance of the underlying basis, following the requesting State’s failure to submit or pursue the extradition request. Accordingly, where a provisional arrest and the subsequent provisional custodial measure were ordered for a period of 30 days — a period even shorter than the forty days provided for under Article 715(6) of the Italian Code of Criminal Procedure — in compliance with the applicable bilateral extradition treaty, in respect of a person subject to an arrest warrant issued by a foreign judicial authority, and on the basis of a finding of a risk of absconding, there is no scope to recognise wrongful detention, not even in the form of so-called “formal” unlawfulness.

In extradition proceedings, as regards compensation for unlawful detention and the “formal unlawfulness” of the custodial measure, until a complete extradition request has been received and translated into Italian, it is not possible to verify whether the conditions for surrender are actually met, nor can it be assumed that the requesting State will fail to submit the extradition request within the prescribed time limits (with the consequent lapse of the custodial measure). Therefore, at this initial stage, the Court must assess the existence of a risk of flight on the basis of the elements available at that time (and this assessment will form the basis for any subsequent evaluation of unlawful detention).