🇮🇹 Italy →

With regard to the so-called “Petruhhin doctrine” developed by the Court of Justice of the European Union, the principle according to which the requested State is obliged to inform the State of nationality, in order to allow the latter to issue, in turn, a European Arrest Warrant for the purpose of prosecuting the same acts, can only operate within the phase specifically devoted to the substantive examination of the extradition request, and cannot therefore be extended to the provisional detention phase, which is instead the subject of the present proceedings.

The requirements of concreteness and currency of the risk of absconding in European Arrest Warrant proceedings must be assessed by the court dealing with precautionary measures in light of the specific needs and characteristics of surrender proceedings. Accordingly, it is reasonable to attach weight to the applicant’s unjustified departure from Romanian territory, occurring precisely at the time of the conviction imposed on him, as a factual element from which the risk of future evasion of surrender may be inferred. For the same reasons, it is consistent to ground the finding of a “high” risk of absconding on the very statements made by the requested person during the validation hearing, where he declared that he had participated in the first-instance proceedings but left the country after lodging the appeal and, expressly, that he had moved to Italy—where his mother is established—seeking refuge at a residence considered, in abstract terms, suitable for the application of a non-custodial measure, thereby intending to evade the consequences of criminal proceedings and of a conviction which he considers unjust.

Flight risk which justifies the application of a measure restricting personal liberty, may be understood as the risk that the requested person may leave the territory of the requested State, thereby jeopardizing compliance with the international obligation to secure their surrender to the requesting State. However, the existence of such a risk must be duly reasoned and grounded on concrete, specific, and indicative elements demonstrating a genuine propensity and a real possibility of clandestine departure by the requested person. Such elements must have a close connection to the factual circumstances and must not be based on presumptions, preconceived general assessments, or merely possible and hypothetical scenarios according to abstract human contingencies.

Among the circumstances that the Court of Appeal may rely on to establish flight risk are also those relating to the number and seriousness of the new offences for which the extradition of the requested person has been sought, as well as their ability to move across continents.

The Court may place particular emphasis on the seriousness of the offences for which the person is sought (murder and robbery) and on the corresponding penalties, as well as on the circumstance that the individual is unlawfully present in the national territory, lacking a residence permit. Although some arguments relied upon are not entirely pertinent (such as the alleged unreliability of electronic monitoring devices—so-called “electronic bracelets”—in ensuring compliance with custodial requirements, “as unfortunately demonstrated by numerous news reports”), the reasoning of the Court of Appeal is primarily grounded on the seriousness of the offences for which the person is sought and the severity of the applicable penalties, in addition to the fact that the individual is illegally present in the national territory. These elements consistently led the Court to consider as recessive the circumstances put forward by the defence, namely that the applicant has relatives in Italy willing to accommodate him and that he carries out undeclared work. This constitutes a reasoning that is by no means merely apparent and, as such, is not subject to challenge at this stage. The appeal, in fact, alleges an erroneous assessment of the elements underlying the decision, thus raising an issue of reasoning which is not reviewable under Article 719 of the Italian Code of Criminal Procedure.

In assessing the existence of flight risk, the mere availability of accommodation suitable for house arrest, the absence of stable ties to the national territory, and a demonstrated propensity for international travel—allegedly supported by financial means and logistical networks—do not, in themselves, constitute sufficient grounds to deny the application of less severe custodial measures. Such elements, if relied upon in abstract or generalized terms, amount to mere suspicion rather than a concrete and individualized assessment of the case. Accordingly, where house arrest is requested, the judicial authority is required to provide specific reasoning as to the inadequacy of that measure, which cannot be inferred solely from factors that are, in principle, neutral, such as financial capacity or habitual mobility across different countries.

Extradition and coercive measures: the requirements of concreteness and present relevance of flight risk must be assessed by the judge in light of the purpose of surrender, to which the procedure is directed, and therefore through a prognostic assessment, based on concrete elements drawn from the requested person’s life, as to the risk that he or she may evade it by leaving the national territory.

The requirements of concreteness and immediacy of the risk of flight, for the purpose of applying coercive measures, must be assessed by the precautionary judge on the basis of specific indicators capable of demonstrating—even inferentially—the existence of a real and foreseeable risk that the requested person may abscond in the near future, such as to justify the imposition of a restrictive measure. The severity of the sentence to which the person would be exposed in the event of surrender does not, in itself, constitute a relevant circumstance for these purposes.

The existence of a flight risk, which justifies the application of a measure restricting personal liberty, must be supported by a reasoned assessment based on specific, concrete, and indicative elements pointing to a real possibility that the requested person may abscond clandestinely. The severity of the penalty that the person would face upon surrender does not, in itself, constitute a relevant factor for this purpose. In the present case, the reasoning provided by the Court of Appeal is merely apparent, as it relied on a factor—the seriousness of the offence—which is not, per se, unequivocally indicative of a flight risk, while at the same time failing to verify the existence of elements capable of establishing the concreteness and present nature of such risk, or, conversely, its absence. As to the type of decision, the Court considers that the preferable solution is to make the annulment of the order for lack of reasoning entail the immediate release of the requested person.

In matters of precautionary measures, the requirements of concreteness and currency (actuality) of the risk of flight must be assessed by the judge in light of the purpose of surrender, to which the procedure is directed, and therefore on the basis of a prognostic evaluation, grounded in concrete elements drawn from the person’s life, as to the risk that he may evade it by leaving the national territory. That being said, the fact that the person’s wife is domiciled in Italy and that the lease agreement is in her name—relied upon by the defence as new elements allegedly demonstrating the person’s ties to Italy—were deemed of lesser weight, also in light of the circumstance that the identification and arrest of the appellant required a specific surveillance and tracking operation by the police, which would indicate the occasional nature of his presence in the place where he was found.

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.

Where multiple applications for house arrest are filed within a short timeframe, the Court of Appeal may legitimately reject the subsequent requests by referring to the reasoning already set out in previous decisions, provided that no new and relevant elements have been introduced. In such circumstances, defence arguments relating to the requested person’s personal or professional situation, or to their ties with the national territory, may be deemed insufficient to alter the prior assessment of custodial needs—especially where the Court has already highlighted a concrete risk of absconding or the existence of transnational support networks making alternative measures inadequate.

Flight risk: the reasoning is adequate where the court has assessed the requested person’s position within the territory, their personality, the circumstance that the attempted murder for which they are charged was allegedly commissioned to a hitman against their brother-in-law for economic reasons, their employment, the reasons for their domicile being different from their registered residence, and, from various perspectives, their actual ties to the state.

With regard to the request to replace the current custodial measure with house arrest, and as to why such measure — even with the prescribed conditions and safeguards — would not be sufficient to neutralise the identified precautionary needs, the Court is effectively silent. It follows that the challenged order must be quashed on this point; the Court of Appeal shall apply the stated principles and carry out a fresh assessment as to the adequacy of the measure currently in place, or the possibility of replacing it with house arrest.

Flight risk justifying the application of a measure restricting personal liberty may be understood as the risk that the requested person may abscond from the territory of the requested State, thereby jeopardising compliance with the international obligation to ensure his or her surrender to the requesting State. The existence of such a risk must be duly reasoned and grounded on concrete, specific, and indicative elements demonstrating a genuine propensity and a real possibility of clandestine departure by the requested person. These elements must be closely connected to the factual circumstances of the case and must not be based on presumptions, preconceived general assessments, or merely hypothetical or abstract possibilities.

The notion that the detention in custody of the requested person constitutes an indispensable element of extradition proceedings has been abandoned; at the same time, however, where extradition is granted, the surrender of the requested person must still be ensured. Where the requesting State has not submitted any request for provisional arrest, nor indicated any concrete situation of urgency connected with an imminent risk of flight, the Court of Appeal cannot merely assert, in an apodictic manner, the existence of a risk of flight without providing any reasoning as to the circumstances allegedly justifying such risk.