🇮🇹 Italy →

In the context of a procedural European Arrest Warrant, a judge who does not consider it appropriate to make the execution thereof conditional upon the guarantee that the person to be surrendered, following the conclusion of the proceedings, be returned to Italy to serve any custodial sentence or security measure that may be imposed by the issuing State, is required to provide specific reasoning for such a decision, with regard to the social rehabilitation needs of the convicted person, setting out the elements taken into consideration and the relevant assessment criteria.

The United States requested the extradition of a Russian-German national from Italy for offences connected with the operation of a cryptocurrency exchange platform and money laundering. Germany subsequently issued a European Arrest Warrant concerning conduct allegedly overlapping with the facts underlying the extradition request. The Supreme Court quashed the decision authorising extradition because the Court of Appeal had relied on a decision issued in the separate EAW proceedings without formally introducing it into the extradition case or allowing the parties to comment on it, thereby breaching the adversarial principle. The Court further held that the requested judicial authority must activate the Petruhhin notification mechanism by informing the member state of nationality and allowing it a reasonable period to take appropriate action. In addition, where an EAW and a third-country extradition request coexist, the judicial authority must seek the prior opinion of the Minister of Justice under the EU-US Extradition Agreement before deciding which request should take precedence. The case was remitted for a new decision.

Article 6 of the Italy–Chile Treaty provides that extradition may be refused if, at the time of the request, the person sought is a national of the requested Party, unless such nationality was acquired for the purpose of preventing extradition. Although the Court of Appeal’s assessment as to the alleged instrumental nature of the citizenship application is certainly incorrect (since the application was submitted in 2011, i.e., at a time not suspect because it predates the commission of the offences underlying the extradition request), it must nevertheless be noted that the optional refusal is entrusted to the discretionary assessment of the Minister of Justice, as correctly stated by the Court of Appeal. This constitutes the exercise of a power expressly provided for in accordance with Article 26 of the Constitution, which allows the extradition of nationals when it is provided for by international conventions, without prejudice to the possibility of an optional refusal of surrender based on a discretionary evaluation entrusted to the executive branch and outside the jurisdiction of the judicial authority.

In matters of extradition of a national of a Member State of the European Union to a third State, the requested Member State, in application of the notification mechanism outlined in the judgment of the Court of Justice of the European Union (Grand Chamber, 6 September 2016, C-182/15), is required to inform the State of nationality also where that State’s domestic law alone provides nationality as a ground for refusing surrender. This is in order to enable that State to issue, in turn, a European Arrest Warrant and request surrender for the purpose of prosecuting the same acts.