🇮🇹 Italy →

The European Convention on Extradition does not empower the judicial authority of the requested State to review whether the judgment underlying the extradition request is enforceable, once that judgment has been classified as enforceable by the requesting State. Moreover, under the system established by the European Convention on Extradition, the judicial authority of the requested State is not entitled to review the reasoning of the conviction judgment. Accordingly, the conditions for extradition may be found to be satisfied even where the statement of reasons has not been transmitted, unless the person sought alleges that the foreign proceedings involved a violation of fundamental rights or that the judgment contains provisions contrary to the fundamental principles of the Italian legal order.

The case concerned Brazil’s request for the extradition of a former Brazilian parliamentarian, also holding Italian citizenship, for the execution of custodial sentences imposed by the Brazilian Supreme Federal Court for offences relating to unlawful access to judicial information systems and ideological falsification. The defence opposed extradition on several grounds, arguing that the proceedings in Brazil had violated fair trial guarantees, that the requested person had been subjected to political and judicial persecution, that the Brazilian Supreme Federal Court lacked impartiality, and that detention in Brazil — in particular in the women’s prison facility indicated by the Brazilian authorities — would expose her to a risk of inhuman or degrading treatment. The Court of Appeal of Rome first held that the late production of documents by the parties was admissible, since the strict five-day time limit for defence memoranda does not apply to documentary evidence in extradition proceedings and the material had been acquired and discussed at the hearing. On the merits, the Court found that the conditions for extradition under the Italy–Brazil treaty and Italian procedural law were satisfied. It rejected the objections based on fair trial and political persecution, holding that the extradition court could not reassess the merits of the foreign criminal proceedings and that the material relied on by the defence did not establish a flagrant denial of justice or a discriminatory prosecution. As to detention conditions, the Court considered the specific information and assurances provided by Brazil concerning the intended women’s detention facility, including separation from other categories of prisoners, access to medical care and educational activities, monitoring by institutional bodies, and available safeguards against abuse. The Court therefore concluded that the alleged risks had not been shown to be concrete, individualized and sufficiently serious to bar extradition. Extradition was granted, subject to the ordinary treaty and statutory safeguards on speciality and subsequent surrender.

Issues relating to the rules governing the invalidity or inadmissibility of procedural acts within criminal proceedings conducted in summary form before the judicial authorities of the requesting State are not subject to a review on the merits by the authorities of the requested State and do not, in themselves, entail a conflict with the fundamental principles of its legal system. Indeed, fundamental rights — including the principle of adversarial proceedings in the taking of evidence — may be guaranteed in non-uniform ways across different national procedural systems.

In the event of a failure to reopen evidentiary proceedings in the requesting State (following summary proceedings), there is no violation of a fundamental principle of the Italian legal system (which could be relevant for extradition purposes), as such a possibility is recognised by case law. Moreover, the current version of Article 603(3-bis) of the Italian Code of Criminal Procedure, as amended by the so-called “Cartabia reform”, clarifies that the general principle requiring the reopening of evidentiary proceedings in cases of reformatio in peius of an acquittal — where it is based on the assessment of testimonial evidence — applies only where such evidence was taken at the first-instance trial hearing or following the admission of additional evidence in summary proceedings pursuant to Articles 438(5) and 541(3) of the Code of Criminal Procedure, and not in cases of “pure” summary proceedings, such as those conducted at first instance in the proceedings held in Albania.

In matters of a European arrest warrant, the ground for refusing surrender cannot be based on the “clear risk of a breach of the rule of law” identified in the issuing State, since—so long as the European arrest warrant has not been suspended pursuant to Article 7(2) TEU in respect of that Member State—the possibility of refusing surrender must be recognised only in “exceptional circumstances”, in which the executing judicial authority, following a concrete assessment of the specific case, finds that there are serious and substantiated grounds for believing that the requested person would, after surrender, face a real risk of a violation of his or her fundamental rights. (Case concerning the risk to the rule of law identified by the European Parliament Resolution of 17 September 2020 regarding the lack of judicial independence in Poland).