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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.

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.

Proceedings before the Court of Appeal, and not only those before the Court of Cassation, are conducted in chamber pursuant to Article 127 of the Italian Code of Criminal Procedure. Therefore, since the European Arrest Warrant was received four days before the in camera hearing, the party was entitled to request an adjournment of the hearing in order to file a defence brief in compliance with the statutory time limits, and such request was timely submitted in order to examine the documentation received. The refusal to grant time for the defence may give rise to an intermediate nullity, as it affects the assistance of the accused, provided that— as in the present case — the objection was raised in a timely manner.

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.

Withdrawal of the extradition request: where the extradition request is withdrawn with immediate effect (due to the statute of limitations on the enforcement of the sentence under swiss law), any judgment of the court of appeal granting extradition must be quashed without remittal, since the withdrawal of the request by the requesting state removes the conditions necessary for granting the relief sought within the initiated proceedings.

EAW: changes to the charge underlying the request for surrender are certainly permissible, as they fall within the normal development of the criminal proceedings pending before the judicial authority of the issuing State, provided that they occur prior to the decision of the Court of Appeal and are based on an emendatio libelli within the scope of the original charge underlying the European Arrest Warrant.

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.

In proceedings concerning a European Arrest Warrant, the injured party has no standing to participate in the surrender procedure, as it does not fall within the categories of persons exhaustively listed under Article 17(1) of Law No. 69 of 22 April 2005. (Case concerning the application by the political party Vox to intervene, as an injured party, in the execution proceedings of a European Arrest Warrant issued by the Spanish Tribunal Supremo against C.P.C., in relation to offences connected with the organisation, in 2017, of the Catalan independence referendum.)

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.

In matters of extradition to a foreign State, where a foreign State succeeds another State with which Italy had already concluded an extradition agreement or convention, no obligation of reciprocal judicial cooperation exists in the absence of an expression of mutual consent by Italy and the newly established State demonstrating their shared intention to remain bound by the previously signed convention. (In the case at hand, the Court held that a unilateral communication was insufficient—namely, New Zealand’s notification to Italy of its intention to rely on the 1873 agreement on “reciprocal extradition” concluded with Great Britain, pursuant to Article 44 of the Treaty of Peace with the Allied Powers—since no corresponding intention had been expressed by Italy).

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.

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.