🇮🇹 Italy →

The case concerned a European Arrest Warrant issued by the Romanian judicial authorities for the execution of a six-year prison sentence imposed for continuing theft offences committed in Romania between August 2018 and June 2022. The Court of Appeal of Milan ordered surrender. The requested person challenged the decision, arguing that surrender should have been refused under Article 18-bis of Law No. 69/2005 because of his residence and social integration in Italy, and that the Italian court had failed to verify the risk of inhuman or degrading treatment in Romanian prisons. The Italian Supreme Court rejected the appeal. It held that, for the social rehabilitation refusal ground in execution EAW cases, the five-year lawful and effective residence or stay requirement remains a necessary prerequisite. The 2023 reform broadened the category of persons who may invoke the refusal ground, extending it beyond Italian and EU citizens, but did not remove the minimum five-year residence requirement. Only once that temporal requirement is established must the court assess the further indicators of integration listed in Article 18-bis, including family, work, linguistic, cultural, social and economic ties. In the present case, the Court of Appeal had found no proof of stable residence in Italy for at least five years; the documents showed, at most, residence from 2023, while the commission of offences in Romania between 2018 and 2022 pointed against stable integration in Italy. As to detention conditions, the Court held that the defence had submitted only generic allegations and had not identified any specific, current and reliable source showing a concrete risk in Romanian prisons. In the absence of such material, the executing court was not required to seek supplementary information. The appeal was therefore dismissed and the surrender order upheld.

The case concerned a request by North Macedonia for extradition from Italy for the execution of a six-month prison sentence imposed for assault or bodily harm. The requested person did not consent to extradition and argued that surrender should be refused because the bilateral additional agreement between Italy and North Macedonia allowed execution extradition only for certain categories of offences and only where the sentence imposed reached a minimum threshold. The Court of Appeal of Bologna rejected that argument. It held that the limitations contained in the bilateral additional agreement concerned only the extradition of each State’s own nationals: Italian nationals to North Macedonia and North Macedonian nationals to Italy. They did not bar the extradition of the requested person in the case before the Court. The Court further found that the judgment was final, that the required documentation had been transmitted, that double criminality was satisfied, and that no statutory grounds for refusal under Article 705 of the Italian Code of Criminal Procedure were present. It therefore declared that the conditions for extradition to North Macedonia were met.

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.

In extradition proceedings, the so-called "Petruhhin mechanism", although applicable during the pretrial phase, always requires citizenship of an EU Member State: this mechanism, actually, does not apply indiscriminately, but only to the benefit of persons for whom the provisions of the Treaty on European Union (TEU) regarding Union citizenship and Article 18 of the Treaty on the Functioning of the European Union (TFEU) give rise to the applicability of the Treaties

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.