🇮🇹 Italy →

The Court of Appeal competent to examine the extradition request (and, consequently, the request for the issuance of precautionary measures) must be identified as the court within whose district the person sought has their residence, abode, or domicile at the time the extradition request is received by the Minister of Justice. Furthermore, where such place is unknown and it is not even certain that the requested person has left Italian territory, jurisdiction lies with the Court of Appeal of Rome. In addition, in remittal proceedings, the jurisdiction established by the quashing decision cannot be reconsidered, unless new facts emerge leading to a different legal classification from which the jurisdiction of a higher court would follow.

In extradition proceedings, the reciprocity condition is satisfied when the requesting State provides an assurance of substantially equivalent treatment — formal diplomatic notes from the Chinese Embassy confirming no restrictions on Italy's participation in passive extradition proceedings are sufficient to this end. The legitimacy of a sub-state authority to represent the requesting State is confirmed by the Embassy and cannot be challenged under the requested State's domestic law. Any authority empowered under the requesting State's internal law to act in extradition proceedings must be recognized as a procedural party. Under Article 702 of the Italian Code of Criminal Procedure, the only formal requirement for the requesting State's intervention is the appointment of a lawyer admitted to practice before Italian courts, with no further formalities prescribed. A distinction must be drawn between mere participation in the proceedings — which requires only an explicit expression of interest — and full procedural standing as a party, which requires the appointment of counsel and confers the right to participate in oral argument and to lodge an independent appeal before the Court of Cassation.

Extradition between Italy and Morocco is governed by the bilateral Extradition Convention of 1971, as amended by the 2014 Rabat Additional Agreement, ratified and implemented in Italy by Law No. 1043 of 1973; alternatively, it is governed by the provisions of the Italian Code of Criminal Procedure on extradition to foreign States. The incorrect identification of the applicable legal framework—presumably due to the careless use of an incorrect template file—resulted in a manifest violation of the law. This occurred not only because the decision was assessed according to criteria reflecting the principle of mutual recognition, which pertains to judicial cooperation among European Union Member States, rather than according to the specific conventional rules on extradition; but above all because only in the case of a request issued by the judicial authority of another EU Member State is the Italian court empowered to directly order the surrender of the person concerned. Such a mechanism is not permitted within the intergovernmental framework governing extradition. In matters of extradition to foreign States, the judicial decision—aimed at safeguarding the rights involved—must be followed by the issuance of a specific decree by the Minister of Justice authorizing the execution of the extradition, adopted in the exercise of a discretionary political power.

EAW: in accordance with the interpretation provided by the Court of Justice of the European Union, in proceedings for the extension of surrender to the issuing State, the principle of adversarial proceedings must be strictly observed, ensuring that the surrendered person is given the opportunity to express opposition, through their defence counsel, in a hearing.

Italian judges – while excluding any interference in the exercise of foreign jurisdiction, with the obvious implications this entails in relation to defence arguments concerning the violation of procedural rules of the Paraguayan legal system – must nonetheless not confine themselves to a merely formal review of the documentation attached to the extradition request, which would effectively result in an automatic and passive acknowledgment. Rather, they must ascertain that such documentation sets out the reasons why, from the perspective of the requesting State’s procedural system, the commission of the offence by the person sought has been considered probable. Accordingly, any evidence of innocence, not known to the judicial authority of the requesting State and submitted for the first time before the Italian court, may be relevant in extradition proceedings only if it is absolutely clear and incontrovertible as to the innocence of the person concerned, failing which it would amount to undue interference in the judicial affairs of the requesting State.