🇮🇹 Italy →

The case concerned a European Arrest Warrant issued by the District Court of Munich, at the request of the European Public Prosecutor’s Office in Munich, for the prosecution of offences relating to an alleged transnational VAT fraud scheme involving missing trader companies. The Court of Appeal of Milan ordered surrender, subject to the condition that, in the event of conviction, the requested person be returned to Italy to serve any custodial sentence. The requested person challenged the decision, arguing that surrender should have been refused because an EPPO proceeding concerning the same facts was already pending before the Naples office, creating a risk of parallel proceedings and ne bis in idem. The Italian Supreme Court rejected the appeal. It held that the optional territoriality refusal ground requires a current and concrete conflict of jurisdiction, not merely a potential overlap. In any event, where the EAW is issued within EPPO proceedings, coordination issues between delegated European prosecutors operating in different Member States must be resolved within the EPPO framework and do not fall to the Italian executing court. The Italian court must only verify that the EAW comes from a judicial authority of another Member State and satisfies the statutory requirements. In the present case, the Naples EPPO office had clarified that its investigation concerned only the year 2016 and was at an initial stage, while the German EAW covered a broader factual context from January 2016 to July 2024, involving more transactions and companies. Any possible overlap was therefore limited and insufficient to justify refusal, especially since the Italian authority had not expressed an intention to exercise its punitive power over the facts covered by the EAW. The Court also rejected the objection that the EAW was too generic, holding that it adequately described the associative context, the requested person’s role, the timeframe, the applicable offences and penalties. The appeal was dismissed and the surrender order upheld.

The case concerned a German request for extradition from Italy for prosecution in relation to drug-trafficking offences allegedly committed before 7 August 2002. Although the German authorities relied on a European Arrest Warrant, the Court of Appeal of Bologna held that the ordinary extradition regime applied because the facts pre-dated the temporal scope of the Italian EAW legislation. The defence objected that a previous German request concerning the same person, the same facts and the same underlying arrest warrant had already been the subject of extradition proceedings, which had ended after Germany withdrew the request. The Court accepted that objection. Relying on Article 707 of the Italian Code of Criminal Procedure and on Supreme Court case law, it held that a previous judgment contrary to extradition precludes a later favourable decision on a renewed request by the same State for the same historical facts, unless the new request is based on elements not previously assessed. The Court found that the renewed German request was based on the same facts and the same charges, was filed more than five years after the earlier proceedings and more than twenty years after the alleged conduct, and did not rely on any new factual elements. The previous withdrawal therefore produced a preclusive effect preventing a new favourable extradition judgment. The Court refused the request and revoked the coercive measure in place.

The case concerned Albanian requests for extradition from Italy for the execution of convictions for fraud. The proceedings followed an annulment by the Italian Supreme Court, which held that, under the European Convention on Extradition, an execution request requires transmission of an enforceable conviction, not necessarily an irrevocable one. On remand, the Court of Appeal of Bologna declared the conditions for extradition satisfied. It held that the Albanian appellate judgment, although still potentially subject to challenge under Albanian law, was executable and therefore sufficient for extradition purposes. The Court also rejected the defence argument that Italy should exercise jurisdiction because the offence had been committed abroad by persons allegedly assimilated to Italian citizens for criminal-law purposes. Since the offence had not been committed in Italy and Italian law allowed prosecution of the same type of offence committed abroad, Article 7 of the European Convention did not bar extradition. The Court further held that trial in absentia was not an obstacle, because Albanian law allowed restoration of time to challenge a judgment rendered in absentia and that remedy had in fact been used. Nor was Albania required to prove the absence of parallel proceedings in a third State. Finally, the Court rejected the request to allow execution of the sentence in Italy, holding that, in extradition proceedings, the Court only assesses the legal possibility of surrender, while any opportunity assessment linked to rooting in Italy belongs to the Minister of Justice. Extradition was therefore granted.

In the context of a European Arrest Warrant concerning offences committed across multiple States, priority must be given to the requirements of judicial cooperation, which serve not only to ensure the effective prosecution of transnational criminal conduct, but also to safeguard the ne bis in idem principle as a fundamental guarantee within the European legal area, as recognised by the Convention implementing the Schengen Agreement of 19 June 1990 and Article 50 of the Charter of Fundamental Rights of the European Union. Accordingly, the execution of the surrender cannot be regarded as contrary to the principle of international lis pendens in the absence of pending criminal proceedings for the same facts in another State, capable of demonstrating a genuine exercise of concurrent jurisdiction. In this context, the executing judicial authority is not required to undertake further inquiries into investigative aspects not apparent from the European Arrest Warrant, given its procedural nature and the fact that investigations in the issuing State may still be ongoing.

The application in Italy of a custodial measure for the purpose of executing an international arrest warrant issued by the United Kingdom, pursuant to the Trade and Cooperation Agreement signed on 24 December 2020, in relation to criminal proceedings pending before its judicial authorities, does not violate the ne bis in idem principle where, on the basis of the same warrant, a custodial measure has already been ordered by another State—namely, Poland—but the person concerned has in the meantime absconded from it. This is because, notwithstanding the existence of two enforcement measures relating to the same arrest warrant, only a single set of criminal proceedings is pending against the person in the issuing State.

In extradition proceedings, the international ne bis in idem principle does not preclude surrender where a final judgment has previously been delivered, against the same person and in respect of the same facts, by a state that is not a member of the European Union. Applying this principle, the Supreme Court dismissed the appeal against extradition to the United States of a person who had already been convicted in Switzerland for the same facts.

From the judgment under appeal it appears that the surrender request of the Austrian judicial authority concerns the same facts, in their historical dimension, as those underlying the previous extradition request submitted by the same authority against the same person. It is unclear whether the renewed surrender request is based on new or different elements compared to those relating to the earlier request already examined by the Italian judicial authority. In such a situation, it is therefore necessary to determine whether the new surrender request is founded on new elements; this assessment must be carried out by the court of merits, which may, where appropriate, also seek additional information and conduct further inquiries from the requesting authority pursuant to Article 16 of Law No. 69/2005.

In extradition proceedings, the international ne bis in idem principle applies only where a final foreign criminal judgment has determined the responsibility of the same person for the same offence. It does not apply to a previous decision refusing extradition issued by another State. The Court also held that, under the Italy-US Extradition Treaty, extradition may be granted for the US offence of conspiracy even though it does not fully correspond to the Italian offence of criminal association, provided that double criminality exists for the offences forming the object of the conspiracy. The appeal against extradition to the United States was declared inadmissible.

The case concerned a Croatian request for extradition from Italy for prosecution in relation to offences also broadly connected to criminal proceedings pending in Italy. The Court of Appeal of Bologna held that the conditions for extradition were met. It found that the request was supported by the required documentation, that the offences were punishable in both States, and that no grounds existed to believe that the requested person would face persecution, discrimination, inhuman or degrading treatment, or proceedings incompatible with fundamental rights. The Court also considered the existence of Italian proceedings concerning analogous facts. It held that those proceedings did not bar extradition because the facts were not fully identical to those underlying the foreign request. However, the Court specified that the execution of extradition would take place only after the conclusion of the pending Italian proceedings and after any sentence imposed in Italy had been served. Extradition was therefore granted, with surrender deferred until completion of the domestic case.