🇮🇹 Italy →

In proceedings concerning a European Arrest Warrant, there is no requirement to observe a minimum notice period for informing defence counsel of the hearing for the validation of the arrest, as the need to ensure counsel’s participation must be balanced against the urgency inherent in such proceedings. There is, however, an obligation to provide a translation of the reasoning of the Court of Appeal’s surrender decision into a language known to the requested person only where the person—being a foreign-language speaker who does not understand Italian—makes an express and reasoned request to that effect. In such a case, the time limits for lodging an appeal run from the moment the translated decision is made available to the person concerned.

European Arrest Warrant (EAW): the notion of “issuing judicial authority” also includes authorities of a Member State which, although not qualifying as judicial bodies, participate in the administration of criminal justice of that State and act independently in the exercise of their functions, provided that judicial review of the decision to issue the warrant is ensured. Moreover, the Court of Justice has clarified that French public prosecutors have the power to assess independently—particularly vis-à-vis the executive—the necessity and proportionality of issuing a European Arrest Warrant, and that they exercise that power objectively, taking into account both incriminating and exculpatory evidence.

Under the surrender regime provided for by the Extradition Convention between the Italian Republic and the Argentine Republic, it is sufficient that the Italian judicial authority ascertain, by way of a summary assessment, that the documentation accompanying the request is, in concreto, capable of substantiating—within the framework of the requesting State’s procedural system—the existence of evidence against the requested person. Accordingly, it is not permissible to raise issues concerning the merits of the investigations carried out by the requesting State (the Convention does not require the production of sources of evidence), nor, a fortiori, to question the evidentiary value of the material collected, which is to be assessed by the deciding State in accordance with its own procedural rules.

In the context of the European Arrest Warrant, Law No. 69 of 22 April 2005, as amended in 2021, reduced to five days the time limit for lodging an appeal before the Court of Cassation against decisions on surrender. This reduction is consistent with the criteria set out in Delegation Law No. 117 of 4 October 2019, as it aims to ensure full alignment of domestic legislation with Framework Decision 2002/584/JHA, which requires that the European Arrest Warrant be dealt with and executed as a matter of urgency.

The requirement of a custodial sentence exceeding one year, as provided for by Article II of the bilateral Extradition Treaty between Italy and the United States of America of 13 October 1983, ratified by Law No. 225 of 26 May 1984, for the purposes of extraditability to either State, must be understood as referring to the maximum statutory penalty provided for under the laws of both countries for the offence forming the subject of the extradition request.

The judgment granting extradition for the enforcement of the overall sanction imposed by the conviction (custodial sentence and inpatient therapeutic measure) is lawful, and it is not necessary for Switzerland to issue a separate extradition title. It appears from the challenged decision that the extradition request concerns a custodial sentence of eight years’ imprisonment and that, on the basis of subsequent information provided by the Swiss Federal Office of Justice, the request also relates to the enforcement of the inpatient therapeutic measure. As also noted by the Court of Appeal, an analysis of the relevant provisions of the Swiss Criminal Code, together with the aforementioned communication from the Swiss Federal Office, shows that: (a) the Swiss sanctioning system is based on a dual-track model of penalties and inpatient therapeutic measures, applicable where the convicted person suffers from a mental disorder (Art. 59); (b) the inpatient therapeutic measure is ordered at the same time as the conviction, as occurred in the present case, where the Assize Court found that the applicant was affected by a mental disorder and that there was a therapeutic prospect capable of reducing the risk of reoffending through the application of such measure; (c) in such cases, the inpatient therapeutic measure is enforced prior to the custodial sentence, and its duration is deducted from the sentence imposed.

In matters of extradition to a foreign State, the late transmission of the surrender request by the Republic of Peru, after the arrest has been carried out, does not entail the nullity of the extradition proceedings, nor does it in itself indicate a lack of continued interest on the part of the requesting State, since the Extradition Treaty between Italy and Peru, ratified by Law No. 135 of 3 May 2004, contains no provision to that effect, without prejudice to the termination of the custodial measure upon the expiry of the ninety-day time limit.

Following the withdrawal of the United Kingdom from the European Union, relations between the two—the former having become a third country—are governed by a specific agreement that entered into force on 1 May 2021. Consequently, extradition procedures do not apply where the United Kingdom requests Italy to surrender a person accused of participation in a criminal association aimed at facilitating illegal immigration. In relations between the European Union and the United Kingdom of Great Britain, following the latter’s withdrawal (so-called Brexit), the European Arrest Warrant framework has been replaced—upon the entry into force of the Trade and Cooperation Agreement—by a new model of cooperation with an autonomous legal basis, namely that set out in Title VII of the said Agreement. This model provides for a system of surrender of requested persons substantially modelled on the former regime and, being self-standing, comprehensive and detailed, is directly applicable.

The case concerned an Albanian request for extradition from Italy for the execution of a final conviction for serious bodily harm. The defence opposed surrender, arguing that the conviction was no longer enforceable because an Albanian court had granted revision of the appellate judgment and remitted the case to a differently composed Court of Appeal. After obtaining supplementary information, the Court of Appeal of Bologna held that the conviction remained enforceable under Albanian law. The Albanian procedural rules provided that, until the revision court issued a new judgment, the convicted person retained the same procedural status, and the court granting revision had not suspended execution of the sentence. The Court therefore treated the foreign judgment as still executable for extradition purposes. It further found that the request was supported by the required documents and translations, that double criminality was satisfied, and that there were no grounds to believe that the requested person would face persecution, discrimination, inhuman or degrading treatment, or proceedings incompatible with fundamental rights. Finally, the Court held that the requested person’s rooting in Italy was not a ground for refusing extradition to a non-EU State. The conditions for extradition to Albania were therefore declared satisfied.

For the purposes of extradition to or from Canada, the clause set out in Article III(e) of the bilateral Treaty of 13 January 2005, ratified by Law No. 7 of 2008, provides, as a mandatory ground for refusal of surrender, only the statute of limitations as determined under the law of the requesting State.

In matters of the European arrest warrant, it must be excluded that the ground for refusal set out in Article 18(e) of Law No. 69 of 22 April 2005 applies—namely, the obligation to refuse surrender where the law of the issuing Member State does not provide maximum limits for pre-trial detention—in relation to a warrant issued by the judicial authority of Portugal, since its procedural system establishes defined time limits for pre-trial detention, up to the final judgment, depending on the nature of the offence and the stage of the proceedings.