🇮🇹 Italy →

Whereas, on the one hand, the restriction of personal liberty is functionally—and therefore also temporally—limited to the fulfilment of such obligations, on the other hand the risk of flight typically arises, in practice, in broader terms than in ordinary matters, with the consequence that the balancing of interests (protection of personal liberty vs. the fulfilment of the demands of justice) inherently entails an assessment of broader scope than under the ordinary framework of values within our legal system, this being associated with a different standard of reasoning required from the court.

Extradition and non-recognition of pre-trial detention served abroad by the requested person in connection with the same extradition request: in Italy it is not possible to aggregate periods of detention served abroad pursuant to a decision of a foreign judicial authority; any such claim must instead be raised before the requesting authority that sought extradition from Italy (should the requested person be extradited).

The issue raised concerns the absence, under German law, of a precautionary measure equivalent to house arrest, which—according to the defence—would be proportionate to the seriousness of the alleged offence and to the personality of the offender. It follows that Pr.Gj. would be unjustifiably subjected, solely for the purpose of enabling the conduct of the trial, to a restriction of personal liberty more severe than necessary, in breach of the principle of proportionality enshrined in Article 49 of the Charter of Fundamental Rights. Judicial review cannot extend to questioning the system of precautionary measures provided for by another Member State and their regulatory framework, since Framework Decision 2002/584/JHA is itself based on relations of mutual trust and cooperation between Member States. The Court is not unaware that, according to a broad interpretation of the expression “pre-trial detention” contained in Framework Decision 2009/829/JHA (as an instrument for the execution in Italy of a graduated measure such as house arrest), house arrest could fall within the scope of that instrument. However, it considers preferable to adhere to the line of case law according to which that body of provisions refers exclusively to non-custodial measures. A different interpretation would, in fact, lead to an improper overlap between those provisions and the regulatory framework governing active surrender proceedings under the European Arrest Warrant, which unquestionably applies—pursuant to Article 28 of Law No. 69 of 22 April 2005—where the measure to be executed is that of house arrest.