🇮🇹 Italy →

Moldova requested the extradition of the requested person for the enforcement of a three-year and six-month prison sentence for theft. The Court of Appeal ordered detention pending extradition, relying on the seriousness of the offence, the length of the sentence and the person’s allegedly brief presence in Italy. The Court of Cassation held that this reasoning was merely apparent because flight risk must be based on specific, concrete and current circumstances drawn from the requested person’s individual situation. The seriousness of the conviction alone was insufficient, particularly where the defence had produced evidence of stable residence, employment and family ties in Italy. As the lower court had also failed to explain why detention in prison was the only suitable measure, the Court quashed the order without remand, declared the detention measure ineffective and ordered the requested person’s immediate release.

The requested person challenged an order validating his provisional arrest for extradition purposes and imposing detention pending proceedings requested by Algeria. The Italian Supreme Court held that an appeal against an extradition-related precautionary measure must be lodged within ten days from the latest notification of the order to the requested person or counsel. It found that the appeal had been filed out of time and clarified that a subsequent order correcting the legal basis of the original decision did not reopen the time limit, since correction merely makes explicit an effect already contained in the original order. The appeal was therefore declared inadmissible, without examination of the arguments concerning double criminality, the validity of the correction and flight risk.

The requested person challenged the refusal to replace extradition detention with house arrest and electronic monitoring after the judicial decision authorising extradition to Peru had become final. The Italian Supreme Court held that precautionary needs and judicial review of their continued existence extend into the subsequent administrative phase of extradition, during which statutory maximum time limits also apply. Courts must therefore remain able to assess whether concrete and current precautionary needs, particularly flight risk, still justify detention or instead require its attenuation or revocation. The Court distinguished this situation from detention ordered during the administrative phase under Article 704(3) of the Code of Criminal Procedure for the imminent execution of the ministerial decree and the physical surrender of the requested person, which is functional to immediate delivery and does not depend on a separate assessment of precautionary needs. Since the Court of Appeal had failed to address the request for a less restrictive measure, the order was annulled and remitted for reconsideration.

The case concerned a person sought by Kuwait for extradition in relation to a money laundering offence and subject to extradition detention in Italy. Following an earlier annulment by the Italian Supreme Court, the Court of Appeal of Rome replaced custody in prison with house arrest at the requested person’s home in Rome, with electronic monitoring, relying essentially on his health conditions. Kuwait challenged that decision, arguing that the Court of Appeal had failed to assess the continuing concreteness and actuality of the risk of flight, despite the requested person’s foreign nationality, lack of stable ties in Italy, and the fact that the extradition proceedings had already been concluded. The Italian Supreme Court upheld the appeal. It held that, in extradition proceedings, the existence of a flight risk justifying coercive measures must be assessed concretely and currently, on the basis of recent factual indicators showing a real and foreseeable risk that the person may abscond and jeopardize Italy’s international obligation to secure surrender. The Court found that the Court of Appeal had merely replaced prison custody with a less restrictive measure on the basis of the requested person’s precarious health, without explaining whether a concrete flight risk still existed and, if so, whether house arrest with electronic monitoring was sufficient to address it. Since the previous annulment had expressly required the lower court to reassess both the existence of flight risk and the adequacy of any alternative measure, the order was annulled with remand for a fresh assessment.

As regards precautionary needs in European Arrest Warrant proceedings, the requirements of concreteness and actuality of the risk of flight for the application of coercive measures must be assessed by the judge in light of the specific characteristics and purposes of the surrender procedure, which is aimed at the traditio in vinculis of the requested person, by carrying out a prognostic assessment of the risk that the person may abscond. In the present case, no reasoning was provided as to the need to apply the precautionary measure. The challenged order merely stated, as the basis for the measure, the need to ensure the surrender of the appellant, without referring to any objective and concrete elements capable of supporting a precautionary prognosis, which in fact was not even formulated. Accordingly, in the complete absence of any indication in this regard, the contested order must be annulled without referral, with a declaration that the precautionary measures applied to the appellant have lost their effect.

The extension of the time limits of custodial detention ordered for extradition purposes — sought by the Prosecutor General pursuant to Article 714(4) of the Italian Code of Criminal Procedure — must be decided by the Court of Appeal, failing which the decision is void under the intermediate nullity regime, after a concrete and effective adversarial exchange between the parties. Such exchange does not require a participatory chamber procedure, but may also take place in written form.

In extradition proceedings, a decision refusing to revoke or replace detention must be translated into a language understood by the requested person where their lack of knowledge of Italian has already been established. Translation of the operative part alone is insufficient where the reasons are filed later, since the person must be able to understand the grounds for the continued deprivation of liberty and exercise their defence rights effectively. Moreover, when deciding any application concerning the imposition, revocation or modification of detention, the court must assess whether objective, reliable and up-to-date evidence indicates a real risk that the requested person would be subjected to inhuman or degrading treatment in the requesting State. Such an assessment cannot be deferred exclusively to the merits stage of the extradition proceedings.

The requested person challenged the refusal to revoke pre-extradition detention or replace it with house arrest in proceedings concerning an Albanian extradition request based on a conviction for bodily injury. The Court of Appeal had relied mainly on the requested person’s lack of employment, limited command of Italian, recent arrival and weak social integration in Italy. The Supreme Court of Cassation quashed the order, holding that flight risk must be supported by specific, concrete and symptomatic elements showing a genuine propensity and real possibility of clandestine departure. Considerations relating merely to the degree of social integration in the requested State are not sufficient unless connected to a predictive assessment based on the requested person’s conduct.

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.

Article 714 requires, for the adoption of a coercive measure aimed at securing surrender, a prognostic assessment as to whether the conditions exist for a judgment granting extradition. This provision constitutes an unavoidable “safeguard” for the requested person, as it prevents the risk of unjustified restrictions on his personal liberty and introduces a threshold already at the moment when the Court must decide whether to impose the coercive measure — and also when it is called upon to decide on an application for revocation or replacement of the measure. Therefore, especially if the request comes from a State — Turkey — whose situation is extremely complex, in light of the circumstances specifically documented by the defence concerning the risk of violations of the requested person’s fundamental rights, the Court cannot omit the prognostic assessment.

The case concerned a requested person subject to an extradition request from Switzerland for drug trafficking and aggravated money laundering. The Court of Appeal of Ancona had ordered pre-trial custody in prison, relying essentially on the seriousness of the alleged offences and on a presumed flight risk. The appellant challenged the order, arguing that the court had failed to provide concrete reasons for the existence of a flight risk and had not assessed the adequacy of the custodial measure, including in light of her personal and family circumstances. The Supreme Court of Cassation held that precautionary measures must remain adequate and proportionate throughout their application and that the lower court’s reasoning was merely assertive and silent on adequacy. It therefore annulled the order and remanded the case to the Court of Appeal of Ancona for a new assessment, including possible substitution with house arrest.

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.

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.

In assessing whether pre-trial measures have lost their effectiveness under the law of the requesting State, the Italian court cannot review the merits of the powers exercised by the Macedonian judicial authority. Therefore, where it does not appear that the precautionary measure has been revoked, the judicial authority of the requested State cannot challenge its validity.

The ministerial request for the application of pre-trial detention, submitted with a view to a favourable decision on surrender under article 704(3) of the italian code of criminal procedure, is not binding on the judicial authority. the custodial measure must in any event be ordered in light of the precautionary needs relating to the extradition proceedings, to be assessed pursuant to article 714(2) of the italian code of criminal procedure. accordingly, a concrete assessment is required as to the existence of a risk of absconding and the adequacy of the requested custodial measure.

Secisions on the revocation or substitution of coercive measures ordered for extradition purposes pursuant to article 716 of the italian code of criminal procedure, following arrest by the judicial police, fall within the jurisdiction of the court of appeal, sitting in a panel, after the scheduling of a specific hearing, and not of a single judge delegated by the president of the court of appeal.

The appeal before the Court of Cassation is inadmissible because it was lodged through an application personally signed by the requested person, thus in breach of Article 613 of the Italian Code of Criminal Procedure, which provides — on pain of inadmissibility — that such appeal must be signed by a lawyer admitted to practice before the higher courts.

The annulment with remittal (reversal and remand) of the judgment deciding on the extradition request does not directly affect the custodial measure ordered in connection with it, given the autonomy between those decisions, as confirmed by Article 714(4) of the Italian Code of Criminal Procedure, which provides for a time limit on the duration of the measure linked to the completion of the extradition proceedings.

The provisional custodial measure ordered by the Court of Appeal following an extradition request from a foreign State and a reasoned request by the Minister of Justice must be revoked if, within 40 days, the extradition request and supporting documents have not been received by the Ministry of Foreign Affairs or the Ministry of Justice. It is not required that, within the same time limit, such documentation be also transmitted to the judicial authority. In the present case, the extradition documentation had been received by the Ministry of Foreign Affairs when it was delivered to the Italian Embassy in Astana (Kazakhstan), whose jurisdiction also extends to the Kyrgyz Republic, in the absence of dedicated diplomatic missions handling exclusively Italian–Kyrgyz bilateral relations.

In extradition proceedings, the Italian Supreme Court has jurisdiction under Article 718(1) of the Code of Criminal Procedure to decide an application for the revocation or replacement of a precautionary measure only when the case file is before it for the determination of whether the legal conditions for extradition are satisfied. That exceptional jurisdiction does not arise merely because an appeal concerning the coercive measure is pending before the Supreme Court. Applying this principle, the Court ordered the transmission of the case file to the Court of Appeal as the competent court to decide the application for revocation or replacement of the measure.