🇮🇹 Italy →

The requested person challenged an Italian appellate decision ordering surrender to Malta under a European Arrest Warrant issued for prosecution in connection with drug-trafficking offences and breach of bail conditions. The Court held that an EAW issued for prosecution does not require the executing judicial authority to conduct a prior full review of the underlying national coercive order, but found that the Maltese offence of breach of bail conditions lacked a corresponding offence under Italian law and therefore failed the double criminality requirement. It further held that, although stable residence in Italy is not a ground for refusing a prosecution EAW, where the requested person is stably integrated in Italy the surrender must be made conditional upon their return to Italy to serve any custodial sentence or measure ultimately imposed. The judgment was therefore quashed without remand as regards surrender for the bail offence and as regards the omitted return condition, while the remainder of the appeal was dismissed.

Romania sought the surrender of the requested person for the execution of a final sentence of one year and ten months’ imprisonment for unlawful entry into a dwelling, aggravated criminal damage, and driving under the influence of alcohol and psychotropic substances. The Court of Cassation held that the optional ground for refusal based on residence and social integration did not apply because continuous residence in Italy for at least five years had not been established. It further held that double criminality concerns only whether the conduct constitutes an offence in both legal systems, and is unaffected by the fact that prosecution in Italy would require a complaint by the victim. The possible expiry of the limitation period under Italian law was likewise irrelevant, since limitation is no longer a ground for refusing surrender and, in any event, Italy had no jurisdiction over the offence committed in Romania.

Switzerland requested the extradition of the requested person for the enforcement of a final custodial sentence concerning drug-related offences and the unauthorised sale of medicinal products. The Italian courts had granted extradition only for drug trafficking and unauthorised pharmaceutical sales, while refusing it for possession of drugs for personal use because that conduct is subject only to an administrative sanction under Italian law and therefore fails the double criminality requirement. On appeal, the requested person incorrectly argued that extradition had also been granted for personal drug use. The Court of Cassation declared the appeal inadmissible, holding that the refusal concerning that offence had already become final and that the extradition order was limited to the offences for which double criminality was satisfied.

The case concerned a European Arrest Warrant issued by the Romanian judicial authorities for the execution of a prison sentence resulting from two convictions: one for unlawful drug trafficking committed in December 2020 and one for personal injury committed in February 2016, the latter conviction having led to the revocation of a previously suspended sentence. The Court of Appeal of Florence ordered surrender, finding that the offences satisfied double criminality, that no refusal grounds applied, that the requested person was not genuinely integrated in Italy, and that postponement of surrender was not justified despite pending Italian criminal proceedings. The requested person challenged the decision, arguing that the drug offence concerned only the free transfer of 1.04 grams of cannabis and would amount merely to an administrative violation under Italian law; that surrender should have been postponed because the Italian proceedings concerned more serious facts and were already at trial stage; and that his family ties in Italy established sufficient social integration. The Italian Supreme Court declared the appeal inadmissible. It held that the Romanian drug offence concerned the transfer of drugs to another person and therefore corresponded to the offence under Article 73 of Presidential Decree No. 309/1990, not to the administrative offence relating only to possession for personal use. The Court further held that postponement of surrender under Article 24 of Law No. 69/2005 is discretionary and had been reasonably refused, given that the Romanian sentence was final and significant, while the Italian proceedings were still pending at first instance. Temporary transfer to Italy was also unavailable because no request had been made by the issuing judicial authority. Finally, the Court held that the mere presence of the requested person’s mother and partner in Italy did not prove stable integration, especially in the absence of evidence of lawful employment, identity documents or genuine social roots. The surrender order was therefore upheld.

The case concerned a European Arrest Warrant issued by Romania for the execution of a sentence imposed by the Calafat Tribunal. The Court of Appeal of Milan ordered surrender only for the offence of driving without a licence, refusing surrender for the other offences. The requested person challenged the decision, arguing that double criminality was lacking because the Italian offence requires recidivism within two years and the previous conviction had been issued in Romania, not in Italy; he also relied on social rehabilitation, family life, the best interests of his minor daughter, proportionality, and execution of the sentence in Italy. The Italian Supreme Court dismissed the appeal. It held that double criminality does not require perfect correspondence between the legal elements of the foreign and domestic offences: it is sufficient that the conduct is criminal in both legal systems. Recidivism, understood as repetition of unlawful conduct, was not a concept exclusive to Italian law and could be assessed by reference to the Romanian conviction. The Court further held that the requested person had not shown lawful and effective residence in Italy for at least five years, since the relevant links documented by the defence dated only from 2024. The complaints based on the best interests of the child were considered generic, as no specific evidence had been provided on cohabitation, the child’s actual situation, or any systemic deficiencies in Romania affecting detained parents or their children. The Court also rejected the proportionality argument, noting that the sentence exceeded the four-month threshold for execution EAWs and that execution in Italy cannot be requested outside the statutory refusal grounds. The surrender order was upheld.

The case concerned a prosecution European Arrest Warrant issued by the District Court of Rostock, Germany, in criminal proceedings for breach of instructions connected with German “conduct supervision”, a measure imposed after the requested person had fully served a previous prison sentence. The requested person argued that, given his alleged integration in Italy, the measure and any future sentence should be executed in Italy, and that the custodial measure was disproportionate. The Italian Supreme Court rejected the argument based on residence, noting that no five-year lawful and effective residence in Italy had been alleged and that, in any event, the case concerned a prosecution EAW, for which integration may at most lead to the return condition under Article 19(2) of Law No. 69/2005. However, the Court held that the Court of Appeal had failed to assess the legal nature of the German “conduct supervision” measure, which was essential to verify double criminality. Depending on its classification, the breach could be comparable under Italian law to violation of an ancillary penalty, breach of special preventive supervision, or mere breach of a security measure such as supervised liberty, the latter not amounting to a separate criminal offence in Italy. Since that assessment had not been carried out, the judgment was annulled and the case remitted for supplementary information and a new decision.

In the context of a European Arrest Warrant, the requirement of double criminality is satisfied where the conduct is classified as an offence in both legal systems; any differences in the provisions concerning aggravating circumstances are irrelevant, provided that the nature and content of such circumstances do not alter the underlying facts, as are any discretionary assessments relating to possible grounds of non-punishability under domestic law.

It does not fall within the powers of the Court of Appeal to calculate the sentence to be served following the granting of extradition. The judicial review that judges are called upon to carry out, in the case of an extradition request, is in fact limited to verifying the existence of the legal requirements and the absence of grounds preventing the acceptance of the request, without being able to modify or adapt the foreign enforcement title. The determination of the sentence to be executed for the offences for which extradition is granted is an exclusive prerogative of the requesting State, entrusted to the institutional responsibility of that country’s judicial authorities and not to those of the requested State.

For the purposes of double criminality under the European Arrest Warrant, it is not necessary that the abstract legal definition of the offence in the foreign legal system exactly corresponds to a provision under Italian law. It is sufficient that the concrete conduct is punishable as a criminal offence in both jurisdictions, regardless of any differences in the legal classification, the elements required for the offence, or the applicable penalties. This requirement was met in the present case, as the Court of Appeal found that the conduct consisting of the sale of goods bearing counterfeit trademarks without a valid legal basis is also criminally punishable under Italian law. Accordingly, the Court correctly held that the objections raised could not be upheld, since any assessment of the factual circumstances falls outside its scope of review and pertains instead to the merits of the proceedings before the German judicial authority.

In matters concerning the European Arrest Warrant, the requirement of double criminality is satisfied where the underlying conduct constitutes an offence in both legal systems. Any differences relating to aggravating circumstances are irrelevant, provided that the nature and content of such circumstances do not alter the essential elements of the offence. Likewise, discretionary assessments concerning possible grounds of non-punishability under domestic law are immaterial. In line with this principle, the Court held that the conduct of counterfeiting currency is also criminalised under Italian law and punishable by a maximum sentence of no less than twelve months. It therefore correctly excluded that the alleged “grossly crude forgery” could be assessed within its jurisdiction, as such evaluation pertains to the merits of the case and falls within the competence of the Austrian judicial authorities.

The requested person challenged his extradition from Italy to the United States on several grounds, including allegedly inadequate detention conditions, the failure to transmit the original arrest warrant underlying the provisional arrest, lack of double criminality and the risk of a subsequent reclassification of the charges into an offence punishable by death. The Supreme Court held that the official information supplied by the United States was sufficiently specific to exclude a real risk of inhuman or degrading treatment. It further ruled that the failure to transmit the original warrant was cured by the subsequent production, together with the extradition request, of a new warrant issued for the same offences following indictment, since the extradition title may be formally replaced before the Court of Appeal decides the case. The complaints concerning double criminality and the death penalty were also rejected, and extradition was upheld.

2017 bilateral extradition treaty identifies “extraditable offences”, i.e. offences capable of giving rise to extradition, and—so far as extradition for prosecution is concerned—defines them as those punishable under the laws of both Parties “by a custodial sentence of at least two years”. This Court, when interpreting the 1983 extradition treaty with the United States—which contains a similar formula for identifying extraditable offences (offences punishable “by deprivation of liberty for a period exceeding one year or by a more severe penalty”)—has already held that the custodial sentence requirement must be understood as referring to the maximum statutory penalty provided for under the laws of both countries. It should be added that, in international practice (see the Model Treaty on Extradition elaborated by the United Nations), two factors are taken into account in order to identify extraditable offences and avoid extradition for trivial conduct: the range of the statutory penalty for extradition for prosecution, and the sentence actually imposed for extradition for enforcement. In the former case, the “minimum” threshold of the statutory penalty considered by treaties corresponds to the maximum penalty abstractly provided for by law (as clarified by the Model Treaty, the “minimum penalty” test is intended to ensure that the treaty applies only to offences of a certain seriousness).

For offences that provide for “thresholds” of punishability, the requirement of double criminality does not entail exact correspondence between the statutory definitions or the legal treatment of the offence, but only that the conduct be punishable under criminal law in both jurisdictions for the same underlying facts. That said, the blood alcohol level detected is below the threshold which, under Italian law, qualifies driving as a criminal offence. It follows that the conduct for which the requested person was convicted by the Albanian judicial authorities—contrary to what was held by the Naples Court of Appeal—would not have criminal relevance in Italy, being, at most, punishable only as an administrative offence. Accordingly, the requirement of double criminality is not satisfied.

For the purposes of double criminality, differences in the level of penalties are, as a rule, irrelevant, save where there is a “manifestly excessive” disparity compared to the domestic legal system, such as to undermine the very premise of identity or comparability of the offences. In the present case, no such “manifestly excessive” disparity exists between the sanction provided by the foreign legal system and that under Italian law. For the offence under Article 421 of the Estonian Criminal Code, the basic penalty ranges from 3 to 12 years’ imprisonment and, only in the event of repeated conduct, from 5 to 20 years. For the corresponding offence identified under Article 20(1) of Legislative Decree No. 221/2017, the maximum penalty is 6 years’ imprisonment. However, even under Italian law, in the event of repeated conduct, the penalty may be increased pursuant to Article 81 of the Criminal Code (which provides for a more lenient regime than simple cumulative sentencing), up to three times the base penalty. Therefore, whether the comparison is made between the basic penalties in the two systems (with maximums of 12 and 6 years respectively), or with regard to repeated conduct (where maximum penalties may reach 20 and 18 years respectively), no absolute disproportion emerges between the two sanctioning frameworks. Certain discrepancies can be identified, but they are not such as to negate the requirement of double criminality. This requirement may be considered lacking only where the sanctions differ so markedly that the offence appears merely formally identical, while in substance reflecting a fundamentally different assessment of harmfulness and a different legal characterisation of the conduct.

Double criminality: for the purposes of verifying the so-called double criminality requirement, in the absence of specific treaty provisions, it is sufficient that the conduct, as described in the extradition request, constitutes—at the time of the decision on the request under the law of the requested State—any criminal offence. Case law has clarified that this review by the requested State is not intended to safeguard compliance with the principle of legality (which must instead be ensured by the requesting State), but merely serves to allow the “recognisability” of the criminal claim asserted by the requesting State and, consequently, the acceptance of the cooperation request underlying the extradition application.

Double criminality: it is not necessary that the abstract structure of the offence under the foreign legal system finds an exact counterpart in a provision of the Italian legal system; it is sufficient that the specific conduct is punishable as a criminal offence under both systems. Any differences—whether in terms of penalties, legal classification, or the constituent elements required for the offence—are irrelevant. Likewise, it is immaterial that, under Italian law, prosecution is subject to a complaint, or that the conduct may qualify as particularly minor pursuant to Article 131-bis of the Italian Criminal Code, or that the offence has been extinguished due to reparatory conduct. The assessment must focus solely on whether the conduct is classified as a criminal offence in both legal systems.

In matters of extradition, under a surrender regime governed by a specific bilateral or multilateral convention, the Italian judicial authority is required — by way of a summary assessment — to verify that the documentation attached to the request is, in concrete terms, capable of demonstrating, from the perspective of the requesting State’s procedural system, the existence of incriminating elements against the person sought.

EAW and double criminality: it is sufficient that the specific conduct is punishable as a criminal offence in both legal systems, regardless of any differences not only in the penalties but also in the legal classification and in all the elements required to establish the offence. To enable the Italian judge to carry out this assessment, the law provides that the issuing State shall transmit a “report on the facts attributed to the requested person”, indicating the time of their commission; such a report may be replaced by the documentation transmitted by the issuing State, provided that it allows the Italian judicial authority to perform the review entrusted to it by law.

For the purposes of double criminality, it is necessary that, at the time of the decision on the extradition request, the Italian legal system classifies as an offence the conduct for which surrender is sought. However, it is not required that the abstract legal definition of the offence under the requesting State’s law finds an exact counterpart in a provision of Italian law. What must be established is that the conduct, described in its factual (naturalistic) elements, can be subsumed under a criminal offence provided for by the legal system of the requested State.

Traditional extradition treaties refer to institutions of the criminal law of individual States — such as double criminality — for the specific purpose of allowing the requested State to assess the 'recognisability' and therefore the acceptability of the punitive claim of the requesting State, thereby ensuring the requirement of reciprocity. As regards criminal thresholds, the bilateral treaty with the United States contains no specific provisions on this point, which means that the double criminality requirement must be assessed according to the ordinary rules — that is, by way of a concrete, in concreto verification.

The United States requested the extradition of the appellant to face charges of conspiracy, computer fraud, bank fraud and currency smuggling. The appellant argued, inter alia, that an earlier refusal of the same extradition request by Spain created a ne bis in idem bar, that the offences did not satisfy the double-criminality requirement and that the prosecution was time-barred under Italian law. The Supreme Court held that the Spanish decision, which was based on the absence of assurances concerning the place where any sentence would be served, did not amount to a final determination on the merits capable of preventing Italy from considering the request. It further held that conspiracy and the fraud charges satisfied the applicable treaty requirements, whereas currency smuggling had been decriminalised in Italy and therefore failed the double-criminality test. The judgment was consequently quashed without remand only in respect of the currency-smuggling charge, while the appeal was dismissed in all other respects.

The case concerned a Swiss request for extradition from Italy for prosecution in relation to aggravated continuing fraud and forgery of private documents. The alleged conduct involved a fraudulent investment scheme based on representations concerning gold trading and the ownership of mines, supported by allegedly false documents and communications. The Court of Appeal of Bologna held that extradition could be granted only in part. Double criminality was satisfied for the aggravated fraud allegations, which corresponded to fraud under Italian law and were not time-barred. However, extradition was refused for the offences of forgery of private documents, because the corresponding Italian offence had been repealed. The Court also examined whether Italian proceedings concerning similar or related conduct barred extradition. It held that only proceedings concerning the same historical facts and the same injured parties could prevent extradition, not merely proceedings involving analogous conduct or the same general context. Since overlap was established only for one specific fraud allegation already under investigation in Italy, extradition was excluded for that fact alone. Pending Italian proceedings for different facts did not prevent a finding of extraditability, since any decision to postpone surrender or allow temporary surrender fell within the competence of the Minister of Justice at the execution stage. The Court therefore declared the conditions for extradition satisfied for the aggravated fraud offences, except for the fact already pending before the Italian judicial authority, and refused extradition for private-document forgery.

The offences of ideological falsification of public documents and the above-mentioned false statements are punishable both in the requesting and in the requested State by a custodial sentence whose maximum term is not less than one year, and serious indications of guilt arise from the examinations carried out on the fingerprints. Furthermore, the offence is not time expired due to statute of limitations either under Argentine law (Article 62 of the Argentine Criminal Code) or under Italian law, since the limitation period for the offence under Article 497-bis of the Italian Criminal Code was interrupted by the arrest warrant issued by the Argentine judicial authorities on 20 August 2013.

The case concerned an extradition request by the United States for two requested persons accused in the Southern District of New York of conspiracy to launder money and conspiracy to distribute narcotics. The requested persons challenged the surrender decision on several grounds, including lack of translation of the extradition request, insufficiency of the supporting documents, lack of serious indications of guilt, absence of double criminality, and the existence of related criminal proceedings in Italy. The Italian Supreme Court held that, under the Italy–United States extradition treaty, the Italian court is not required to carry out an autonomous assessment of the evidential basis of the accusation, but only to verify that the summary of facts explains why, from the perspective of the requesting State, it is probable that the requested persons committed the offences. The Court also held that double criminality does not require exact correspondence between the legal classifications in the two systems: the US offence of conspiracy may correspond to Italian associative offences, including criminal association and drug-trafficking association. As to the alleged Italian proceedings, the Court found no total identity of facts and held that any territoriality-based refusal under the treaty was optional and fell within the competence of the Minister of Justice, not the judicial authority. The appeals were therefore dismissed and the extradition order upheld.

For the purposes of granting extradition, in order to satisfy the requirement of double criminality it is not necessary that the abstract structure of the offence under foreign law corresponds exactly to a provision under Italian law. It is sufficient that the same conduct constitutes a criminal offence in both legal systems, irrespective of any differences in legal classification or in the applicable penalties. In the present case, extradition was requested on the basis that the person concerned had displayed and used credit cards of which he was only apparently the holder, and had also affixed forged signatures on sales receipts. It is clear that such conduct, as described, amounts under Italian law to both the offence provided for by Article 55 of Legislative Decree No. 231 of 2007 and the offence of fraud.

The issuance of bounced cheques does not, in itself, constitute fraud under Italian law, as it is no longer a criminal offence, unless it forms part of a broader scheme aimed—through deceit or misrepresentation—at obtaining an undue financial advantage. Accordingly, for violation of the principle of double criminality, the order of the Court of Appeal must be quashed with remittal where it validates an arrest for extradition purposes and orders pre-trial detention in relation to a request for provisional arrest concerning the purchase of goods paid for with uncovered cheques, if such conduct is classified as fraud without establishing the existence of deceitful acts or misrepresentations.

The case concerned an Ecuadorian request for extradition from Italy for the execution of a final conviction imposing a sixteen-year prison sentence. The conviction related primarily to intentional homicide and also included other offences, such as abuse of office, torture and concealment of a corpse. The Court of Appeal of Bologna held that the extradition request was supported by the required documentation and that the judgment had become final. It found that the offences were also punishable under Italian law and that the double criminality requirement was therefore satisfied. The Court further noted that the requested person had been properly identified and that no grounds for refusal under Articles 698 or 705 of the Italian Code of Criminal Procedure were present. It therefore declared that the conditions for extradition to Ecuador were met.