🇮🇹 Italy →

The Italian courts ordered the surrender of the requested person to Spain under a prosecution European Arrest Warrant, subject to their return to Italy to serve any sentence or security measure eventually imposed, while criminal proceedings were also pending against them in Italy. The appellant challenged the refusal to defer surrender under Article 24 of Law No. 69/2005, arguing that the courts should have weighed the respective procedural interests of Italy and Spain and considered a temporary transfer. The Supreme Court of Cassation held that the decision whether to defer surrender involves exclusively the balancing of competing public interests of the two States and does not confer an enforceable subjective right on the requested person. Following the 2021 reform limiting EAW appeals before the Court of Cassation to questions of law, the appellant could not seek review of the Court of Appeal’s discretionary refusal to postpone surrender, and the appeal was therefore declared inadmissible.

The requested person was subject to two prosecutorial European Arrest Warrants issued by Germany and Austria for organised aggravated thefts, while criminal proceedings and the execution of a residual sentence were pending in Italy. The Italian Supreme Court held that the decision whether to defer surrender under Article 24 of Law No. 69/2005 requires a comparative assessment of the interests involved, taking into account factors such as the seriousness and date of the offences, the person’s custodial status, the stage and complexity of the proceedings, any final judgment, the sentence still to be served and the likely manner of its execution. It found that the Court of Appeal had adequately explained why the seriousness, organised nature and transnational dimension of the offences underlying the German and Austrian warrants outweighed the Italian interest in the domestic proceedings and sentence enforcement. The fact that the requested person was detained in Italy did not make deferral necessary, since flight risk is addressed through precautionary measures whereas the purpose of a prosecutorial EAW is to secure the person’s presence for trial.

Decisions concerning the suspension of surrender of a requested person—where the individual is subject in Italy to criminal proceedings or must serve a sentence in Italy for an offence committed either before or after the one for which extradition has been granted—as well as decisions on temporary surrender or on the execution of the sentence abroad, pertain to the administrative phase falling within the competence of the Minister of Justice, and not to the judicial phase, which concludes with the judgment granting the extradition request. In this respect, it has been held that the existence, within the territory of the State, of criminal proceedings against a foreign national whose extradition has been requested entails the suspension—within the competence of the Minister of Justice—of the execution of the extradition, but does not preclude a favourable determination by the Italian judicial authority on the request of the foreign government.