🇮🇹 Italy →

The requested person challenged an Italian appellate judgment ordering surrender to Spain for prosecution in connection with an aggravated robbery allegedly committed in Ibiza. He argued that the European Arrest Warrant lacked a sufficient evidentiary basis, that flight risk was absent, and that personal and family medical circumstances should prevent surrender. The Supreme Court of Cassation declared the appeal inadmissible, holding that, following the 2021 reform of Italian EAW legislation, the warrant is no longer required to set out serious indications of guilt or include a separate account of the evidentiary sources, provided that it adequately describes the circumstances of the offence and the requested person’s degree of participation. The Court further held that the executing judicial authority may not reassess the precautionary requirements underlying the warrant, while health-related concerns ordinarily pertain to the execution phase rather than constituting grounds for refusal.

The requested person challenged his surrender to Spain under a prosecutorial European Arrest Warrant concerning alleged participation in an organised group carrying out robberies of luxury watches. The Italian Supreme Court held that, following the 2021 reform of Law No. 69/2005, the absence of an indication of serious evidence of guilt or of the evidentiary sources supporting the accusation does not constitute a ground for refusing surrender. It clarified that the warrant need only contain the minimum formal information necessary for the executing authority to perform the checks assigned to it, including the nature and legal classification of the offences, the time and place of their commission, and the requested person’s alleged degree of participation. The executing court may not request the underlying precautionary order in order to reassess the evidentiary basis, and any failure by the issuing State to provide such information cannot justify refusal of surrender.

In extradition proceedings governed by the 1957 European Convention on Extradition, the Italian judicial authority, even where the applicable convention does not require a full assessment of serious indications of guilt, must carry out a summary assessment under Article 705 of the Italian Code of Criminal Procedure. Such assessment cannot, however, amount to a detailed review of the evidentiary framework, since the requesting State is not required to transmit the evidence itself, but only sufficiently precise factual allegations and an indication of the evidentiary basis supporting the accusation within the requesting State’s procedural system.

Switzerland requested the extradition of the requested person for prosecution in connection with three attacks on bank cash machines involving explosive material. The Italian Supreme Court held that, even where the applicable extradition convention does not expressly require the requested State to assess serious indications of guilt, the Italian judicial authority must not confine itself to a purely formal review of the documents but must conduct a summary assessment of whether the materials disclose evidence against the requested person. In the present case, the arrest warrant contained a detailed description of the alleged offences and identified several incriminating elements, including statements by a co-suspect and DNA traces connected with two of the incidents. The Court held that the defence objections sought an impermissible merits assessment of the evidence, rejected the appeal and upheld the favourable extradition decision.

Under the surrender regime governed by the European Convention of 13 December 1957, the Italian judicial authority is required to ascertain, through a summary assessment, that the documentation attached to the request is concretely capable of establishing—within the framework of the requesting State’s procedural system—the existence of elements against the requested person amounting to offences also punishable under domestic law, on the basis of an adequate description of the sources of evidence. The Court of Appeal is therefore certainly not required to conduct an autonomous evaluation of the seriousness of the evidentiary indications. In light of the clear accusatory framework, it must also be noted that the appellant has not provided any contribution, even documentary, to demonstrate his lack of involvement in the alleged facts. Any evidence of innocence—“not known to the judicial authority of the requesting State and submitted for the first time to the Italian judge”—may nonetheless be considered within extradition proceedings only if it is decisive in nature and absolutely clear and incontrovertible; otherwise, such an assessment would amount to undue interference in the judicial affairs of the requesting State.

Where an applicable convention – such as the one between Italy and Switzerland – does not provide for an assessment by the requested State of the existence of serious indications of guilt, the Italian judicial authority must not limit itself to a merely formal review of the documentation attached to the extradition request. Rather, it must ascertain that such documentation sets out the reasons why, from the perspective of the requesting State’s procedural system, it was considered probable that the requested person committed the offence underlying the extradition request. Accordingly, in carrying out this review – unlike the regime provided for under Article 705(1) of the Italian Code of Criminal Procedure – the requested State must neither independently assess this requirement nor critically re-evaluate the evidentiary material transmitted. In the present case, the Court of Appeal correctly adhered to the scope of review entrusted to it, highlighting the body of incriminating evidence (consisting of co-defendants’ statements, intercepted communications, and police investigations) on which the Swiss judicial authorities had based the provisional charge against the applicant. By contrast, the applicant sought to engage in an impermissible assessment of the probative value of individual items of evidence, effectively offering a direct – and moreover partial – reinterpretation of the evidentiary record.

Where the applicable convention does not provide for an assessment by the Italian State of the existence of serious indications of guilt, the Italian judicial authority may not confine itself to a merely formal review of the documentation submitted, but must carry out a summary evaluation aimed at verifying—on the basis of the materials produced—the existence of incriminating elements against the requested person, as assessed within the procedural framework of the requesting State.