🇮🇹 Italy →

The requested person challenged an Italian appellate decision ordering surrender to Malta under a European Arrest Warrant issued for prosecution in connection with drug-trafficking offences and breach of bail conditions. The Court held that an EAW issued for prosecution does not require the executing judicial authority to conduct a prior full review of the underlying national coercive order, but found that the Maltese offence of breach of bail conditions lacked a corresponding offence under Italian law and therefore failed the double criminality requirement. It further held that, although stable residence in Italy is not a ground for refusing a prosecution EAW, where the requested person is stably integrated in Italy the surrender must be made conditional upon their return to Italy to serve any custodial sentence or measure ultimately imposed. The judgment was therefore quashed without remand as regards surrender for the bail offence and as regards the omitted return condition, while the remainder of the appeal was dismissed.

Switzerland requested the extradition of the requested person for the enforcement of a final custodial sentence concerning drug-related offences and the unauthorised sale of medicinal products. The Italian courts had granted extradition only for drug trafficking and unauthorised pharmaceutical sales, while refusing it for possession of drugs for personal use because that conduct is subject only to an administrative sanction under Italian law and therefore fails the double criminality requirement. On appeal, the requested person incorrectly argued that extradition had also been granted for personal drug use. The Court of Cassation declared the appeal inadmissible, holding that the refusal concerning that offence had already become final and that the extradition order was limited to the offences for which double criminality was satisfied.

The case concerned a prosecution European Arrest Warrant issued by the Court of Cornellà de Llobregat, Spain, in criminal proceedings for drug trafficking within a wider investigation into a criminal association aimed at narcotics trafficking. The requested person challenged the surrender decision, arguing that the Italian Court of Appeal had failed to carry out an autonomous assessment of the precautionary grounds underlying the EAW and should have awaited the outcome of an appeal pending in Spain against the domestic custodial measure. The Italian Supreme Court held that those complaints sought a review of the foreign precautionary order, which falls within the jurisdiction of the issuing State and is outside the scope of review of the executing judicial authority. However, the Court found that the Court of Appeal had failed to rule on the requested person’s express request, as an Italian citizen, that any future custodial sentence be served in Italy under Article 19(2) of Law No. 69/2005. Since formal Italian citizenship was sufficient and no further factual assessment was required, the Supreme Court directly added the condition that surrender be subject to the requested person’s return to Italy to serve any sentence imposed in Spain, dismissing the appeal in all other respects.

The case concerned a prosecution European Arrest Warrant issued by the District Court of Hechingen, Germany, for several alleged offences of computer fraud committed in Germany, including in an organised form. The requested person challenged the surrender decision, arguing that the Italian Court of Appeal had failed to examine possible Italian jurisdiction over the facts and the related optional refusal ground, and had also failed to rule on his request to serve any future custodial sentence in Italy. The Italian Supreme Court held that the territorial-jurisdiction objection under Article 18-bis of Law No. 69/2005 was inadmissible because it had not been raised before the Court of Appeal and, in any event, required proof that Italian jurisdiction had already been effectively exercised over the same offence when the EAW was received. However, the Court found that the Court of Appeal had omitted to rule on the requested person’s express request, as an Italian citizen, that any sentence imposed in Germany be served in Italy under Article 19(2) of Law No. 69/2005. Since formal Italian citizenship was sufficient and no further factual assessment was required, the Supreme Court directly made surrender conditional on the requested person’s return to Italy to serve any sentence imposed in Germany, dismissing the appeal in all other respects.

In extradition matters, the seizure of the corpus delicti and of items pertaining thereto, ordered on an urgent basis by the judicial police within the framework of an extradition procedure, must be validated by the Court of Appeal. The latter is required to provide reasons—on the basis of the applicable conventional framework, as well as Article 714(1) of the Italian Code of Criminal Procedure, insofar as not derogated—regarding the existence of a nexus of pertinence between the seized assets and the offence underlying the extradition request, through an assessment of the evidentiary needs put forward by the requesting foreign authority (in the present case, a seizure carried out by the judicial police in the context of an extradition procedure initiated by the United States of America).

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

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.

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.)

The case concerned a Swiss request for extradition from Italy for prosecution in relation to aggravated continuing fraud and forgery of private documents. The alleged conduct involved a fraudulent investment scheme based on representations concerning gold trading and the ownership of mines, supported by allegedly false documents and communications. The Court of Appeal of Bologna held that extradition could be granted only in part. Double criminality was satisfied for the aggravated fraud allegations, which corresponded to fraud under Italian law and were not time-barred. However, extradition was refused for the offences of forgery of private documents, because the corresponding Italian offence had been repealed. The Court also examined whether Italian proceedings concerning similar or related conduct barred extradition. It held that only proceedings concerning the same historical facts and the same injured parties could prevent extradition, not merely proceedings involving analogous conduct or the same general context. Since overlap was established only for one specific fraud allegation already under investigation in Italy, extradition was excluded for that fact alone. Pending Italian proceedings for different facts did not prevent a finding of extraditability, since any decision to postpone surrender or allow temporary surrender fell within the competence of the Minister of Justice at the execution stage. The Court therefore declared the conditions for extradition satisfied for the aggravated fraud offences, except for the fact already pending before the Italian judicial authority, and refused extradition for private-document forgery.

The withdrawal of the extradition request entails the revocation of real precautionary measures, with the consequent return to the rightful owner of the assets subject to seizure, given that—pursuant to Article 6(2) of the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959—the requesting State is not entitled to dispose of assets obtained through the execution of a letter rogatory that has subsequently been withdrawn. (In the present case, the Court quashed without remittal the order by which the Court of Appeal had ordered the return of the seized assets, limited to those not yet transferred to the requesting authority).

The case concerned the attempted reliance, in relations between Italy and India, on the 1873 bilateral extradition convention concluded between Italy and the United Kingdom, at a time when the United Kingdom exercised colonial authority over India. The Rome Court of Appeal examined whether treaties concluded by a colonial power could continue to apply to a newly independent successor State notwithstanding the general “clean slate” principle. It held that devolution agreements between the former colonial power and the newly independent State are, in themselves, res inter alios acta and cannot be invoked against the original treaty counterparty unless followed by a formal act of succession, in the case of multilateral treaties, or by a specific agreement between the successor State and the original counterparty, usually by exchange of notes, in the case of bilateral treaties. The Court further observed that continuation could also be inferred from unequivocal conduct showing both States’ intention to remain bound by the treaty. In the absence of such formal steps or conclusive conduct, the Court held that the 1873 Italy–United Kingdom extradition convention was not applicable between Italy and India.