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Pursuant to Article 698(2) of the Italian Code of Criminal Procedure, where the offence for which extradition is sought is punishable by death under the law of the requesting State, extradition may be granted only where the judicial authority has ascertained that a final and irrevocable decision has been adopted imposing a penalty other than the death penalty or, if the death penalty has been imposed, that it has been commuted to a different sentence. This principle also applies at the stage preceding the decision on surrender—namely, the pre-custodial and custodial stages—which are closely interconnected and functionally preparatory to the final extradition decision; otherwise, there would be no legal justification for restricting, even temporarily and provisionally, the personal liberty of the person concerned. Accordingly, an arrest carried out by the judicial police under Article 716(1) of the Code of Criminal Procedure for extradition purposes in relation to an offence punishable by death under the law of the requesting State is unlawful; nor may a provisional coercive custodial measure be imposed for the same offence pursuant to Article 716(3) of the Code of Criminal Procedure.

In matters of passive extradition to China, where the offence for which surrender is requested is, in abstract terms, punishable by the death penalty, pursuant to Article 698(2) of the Italian Code of Criminal Procedure, surrender cannot be ordered in the absence of a final and irrevocable judicial decision excluding the application of capital punishment in the конкрет case; general assurances provided by the requesting State are insufficient. The Court clarified that the provision set out in Article 3(f) of the treaty between Italy and China does not apply. According to that provision, for the purposes of executing an extradition request, it is sufficient that there are elements excluding a “well-founded fear” of being subjected to “other cruel, inhuman or degrading treatment or punishment”. However, that rule concerns the manner of execution of a penalty necessarily different from the death penalty.