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The case concerned an Albanian request for execution extradition based on a final one-year prison sentence for escape and possession and manufacture of false identification documents. The requested person challenged the decision granting extradition, arguing that he had already fully served the sentence in Italy through extradition custody and that the Albanian authorities had themselves indicated that they no longer had an interest in surrender. The Italian Supreme Court upheld the appeal. It held that, where the sentence for which extradition is sought has already been entirely served in Italy through precautionary custody in the extradition proceedings, surrender for execution is barred, since crediting pre-surrender detention against the sentence is a fundamental principle of the Italian legal order and a fundamental right of the person. The Court therefore annulled the surrender decision without remand, declared the existing precautionary measure terminated, and ordered the requested person’s release unless detained on other grounds.

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.

It is certainly not for the Italian judicial authority to verify the existence of the custodial requirements set out in Article 274 of the Italian Code of Criminal Procedure for the adoption of a “domestic” precautionary measure by the foreign judicial authority. The only relevant consideration is that the European Arrest Warrant constitutes a judicial decision issued for the purpose of conducting criminal proceedings. It is therefore clear that the challenged decision confuses two distinct levels: on the one hand, the precautionary measure issued by the requesting State; on the other, the measure to be adopted by the requested State in order to ensure the execution of the warrant through the surrender of the requested person.

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 request by the Minister of Justice for the revocation of the custodial measure leaves no room for discretion, as the law provides that “revocation shall always be ordered if the Minister of Justice so requests.” In such cases, where the proceedings are pending before the Court of Cassation, that Court has jurisdiction to decide on the revocation of the measure, and the immediate release of the person sought for extradition must be ordered.

In the absence of an extradition treaty between Italy and Pakistan, the rules of the Italian legal system apply, in particular Article 698(2) of the Italian Code of Criminal Procedure, which does not allow “prosecutorial” extradition to a foreign State (nor the application of a coercive measure) where the offence for which extradition is sought is punishable by death in the requesting State. Indeed, in the absence of a final foreign judicial decision excluding the application of the death penalty in the specific case, the Italian judicial authority has no margin of discretion. Consequently, under the current legal framework, no decisive weight may be attached to the assurances contained in the “certificate of moratorium on capital punishment” attached by the Pakistani authorities to the extradition request, stating that the Government of that State has suspended executions and that, should the death penalty be imposed, it would not be carried out without the prior consent of the Italian Government.

Deterioration of health conditions and incompatibility of the detainee’s health conditions with the prison regime: when ruling on an application for revocation or replacement of the measure, the Court of Appeal must take into account the content of the defence submissions where new elements are alleged in comparison with the previous assessment.

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.

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).

In matters of flight risk, neither prior convictions nor the severity of the sentence can, in themselves, establish proof of a risk of absconding, as they are abstract considerations from which it is not possible to infer a genuine intention to evade the decision that the Court of Appeal will ultimately take at the end of the proceedings. In particular, while the severity of the sentence is an element of undeniable relevance, it cannot be regarded as the sole benchmark; rather, it must be assessed in conjunction with other specific factors capable of demonstrating a concrete likelihood that the requested person may clandestinely abscond.

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.

EAW: although flight risk may, by its nature, be assessed more broadly than in ordinary proceedings, it must nonetheless exist and cannot dissolve into a form of “inadmissible presumption”. It must display characteristics of concreteness as well as present relevance, and must be supported by specific reasoning grounded in concrete elements drawn from the requested person’s life. Accordingly, the Italian court cannot base pre-trial detention in custody solely on the seriousness of the alleged offence, the severity of the penalties imposed, or the fact that the arrested person—despite being domiciled in Italy and identified by means of an Italian identity card—has not provided elements capable of excluding such risk (all the more so where the offence was committed many years earlier).

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.

Assessment of flight risk must take into account all the available elements and must not be “deficient”, to the point of being merely apparent, nor disconnected from the elements underlying the application for a coercive measure and the supporting materials. Judges must therefore assess any departure from or unavailability within Italy of the requested person, as this constitutes an objectively verifiable factor grounding the risk of evading surrender.

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 conclusion of extradition proceedings with a decision favorable to surrender does not preclude judicial review of an application for revocation or substitution of the coercive measure imposed within the incidental de libertate proceedings, provided that the application is based on grounds relating to the subsequent ineffectiveness of the measure or the absence of custodial requirements linked to the risk of flight, and insofar as the person has not yet been surrendered to the requesting State. This is subject to the condition that no final decision has been rendered on the issue within the main extradition proceedings, such decision giving rise to an intra-procedural bar (preclusione endoprocessuale).

The Court of Appeal cannot merely assert the adequacy of a non-custodial measure (such as an obligation to report to the police) without providing any reasoning—even in concise terms—on the existence of a risk of absconding. This is all the more so where the same Court highlights factors—such as the limited overall sentence to be served in the requesting State, the requested person’s strong ties to the territory, the availability of a fixed residence in Italy, a lease agreement, and a permanent employment contract—which not only fail to support such a risk, but in fact mitigate it.

Precautionary measure: the requirements of concreteness and present relevance of the risk of flight must be assessed by the court in light of the purpose of surrender to which the procedure is directed. Such assessment must therefore be based on a prognostic judgment, grounded on specific elements drawn from the requested person’s life, as to the risk that he or she may evade surrender by leaving the national territory. (In the present case, the risk of flight was inferred from the manner in which the requested person had clandestinely travelled from one continent to another, under extremely harsh conditions and exposing himself to very serious risks to his personal safety).

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.

In matters of extradition, the ministerial request for the application of pre-trial detention, submitted following a decision favourable to surrender under Article 704(3) of the Italian Code of Criminal Procedure, is not binding on the judicial authority, as the custodial measure must in any event be ordered in light of the precautionary needs pertaining to the extradition proceedings, to be assessed pursuant to Article 714(2) of the Italian Code of Criminal Procedure.

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.

The requested person must be informed of the subject-matter of the extradition proceedings. Accordingly, where such information did not cover additional episodes of fraud described in the custodial order subsequently transmitted in support of the extradition request, this gives rise to a ground of nullity. Indeed, in order to safeguard defence rights, once the subject-matter of the extradition proceedings has changed, the judicial authority must order the appearance of the person concerned; failure to do so results in nullity for violation of the right of defence and, consequently, in the invalidity of the acts carried out in the proceedings.