🇮🇹 Italy →

The case concerned an Albanian request for execution extradition based on a final one-year prison sentence for escape and possession and manufacture of false identification documents. The requested person challenged the decision granting extradition, arguing that he had already fully served the sentence in Italy through extradition custody and that the Albanian authorities had themselves indicated that they no longer had an interest in surrender. The Italian Supreme Court upheld the appeal. It held that, where the sentence for which extradition is sought has already been entirely served in Italy through precautionary custody in the extradition proceedings, surrender for execution is barred, since crediting pre-surrender detention against the sentence is a fundamental principle of the Italian legal order and a fundamental right of the person. The Court therefore annulled the surrender decision without remand, declared the existing precautionary measure terminated, and ordered the requested person’s release unless detained on other grounds.

If there is a current and concrete risk of a violation of the fundamental rights of the requested person, the extradition request must be refused. After reconstructing the procedural background and confirming that the formal requirements for extradition were met, the Court ruled out surrender on the ground that, if transferred to Turkey, the requested person would face a concrete risk of being subjected to inhuman or degrading treatment. In particular, the Court relied on the updated picture of systemic concerns regarding the protection of fundamental rights in Turkey, with specific reference to detention conditions, the independence of the judiciary, the protection of fair trial rights, and the effectiveness of the guarantees arising under the ECHR. Referring to domestic and supranational case law, as well as several institutional and international sources, the Court held that any assurances provided by the requesting State were not sufficient, in the absence of objective, precise and up-to-date elements, to rule out the risk of violations of the requested person’s fundamental rights.

The absence, in the requesting State, of effective protection of the guarantee of judicial impartiality, viewed from an objective standpoint, constitutes a bar to surrender, since that guarantee forms part of the essential core of the right to a fair trial and of the rights of the defence, in accordance with the fundamental principles of the legal order, as guaranteed by the Constitution and by supranational instruments. In the case at issue, the person injured by the offences charged against the requested person had sat on the judicial panel as reporting judge, had also dealt with the preliminary issue of his own incompatibility, had issued the arrest warrant, and had drafted the extradition request.

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.

In matters of extradition to a foreign State, a bar arises where there is a risk to the individual’s fundamental rights, particularly where the requesting State—no longer a member of the Council of Europe and involved in an armed conflict—cannot provide assurances that there is no current danger to the life or physical integrity of the person sought, in light of the widespread, severe and exceptional nature of the hostilities affecting its entire territory, where such a situation is objectively established, including as a matter of common knowledge. In the present case, moreover, since Poland—an EU Member State—has granted the requested person subsidiary protection, extradition to a third State could not, in any event, proceed without prior consultation with Poland. Poland has, in fact, already refused extradition to the Russian Federation on the basis of the same arrest warrant and for the same offences underlying the present proceedings; it is therefore reasonable to assume that such consultation would lead to a negative outcome.

The request by the Minister of Justice for the revocation of the custodial measure leaves no room for discretion, as the law provides that “revocation shall always be ordered if the Minister of Justice so requests.” In such cases, where the proceedings are pending before the Court of Cassation, that Court has jurisdiction to decide on the revocation of the measure, and the immediate release of the person sought for extradition must be ordered.

In the absence of an extradition treaty between Italy and Pakistan, the rules of the Italian legal system apply, in particular Article 698(2) of the Italian Code of Criminal Procedure, which does not allow “prosecutorial” extradition to a foreign State (nor the application of a coercive measure) where the offence for which extradition is sought is punishable by death in the requesting State. Indeed, in the absence of a final foreign judicial decision excluding the application of the death penalty in the specific case, the Italian judicial authority has no margin of discretion. Consequently, under the current legal framework, no decisive weight may be attached to the assurances contained in the “certificate of moratorium on capital punishment” attached by the Pakistani authorities to the extradition request, stating that the Government of that State has suspended executions and that, should the death penalty be imposed, it would not be carried out without the prior consent of the Italian Government.

The decision on an extradition request—even where it takes the form of a ruling of no need to proceed due to the person’s absence from the national territory—falls within the jurisdiction of the Court of Appeal sitting in its collegiate composition, and not of a delegated judge. Accordingly, where, as in the present case, the delegated judge has exercised a power that the legal system reserves to the Court of Appeal, the impugned decision must be deemed affected by absolute nullity for lack of judicial capacity, as it entails a violation of the constitutional principle of the natural judge pre-established by law.

A judgment rejecting an extradition request — even where such rejection follows the mere withdrawal of the request by the requesting State — precludes the adoption of a subsequent decision granting extradition following the submission by the same State of a new request concerning the same facts. On the contrary, a decision of a purely procedural nature (such as one based on the absence of the requested person from the national territory) is not capable of producing the preclusive effect. Accordingly, even if the sought person is no longer present within Italian territory, the person has an interest in obtaining a decision on the merits rather than a merely procedural ruling. However, if the Court has already obtained and deemed adequate the assurances requested from the requesting State, it may no longer issue a judgment rejecting the extradition request on the merits, but only a decision of “no grounds to proceed”.

The extremely severe situation of the ongoing armed conflict, which is now spreading to areas previously unaffected by attacks by the Russian Federation and whose developments are, at present, unpredictable, constitutes a ground precluding extradition, as it is not possible to provide an effective guarantee as to the absence of a current risk to the safety of the person to be extradited. The exceptional nature of the current situation of the armed conflict in Ukraine constitutes a “matter of common knowledge,” acquired within the collective awareness to such a degree of certainty as to appear indisputable.

Under the Extradition Treaty between Italy and Peru, surrender shall be refused “if, at the time of receipt of the request, the prosecution or the penalty is time-barred under the law of either Party in respect of the offence for which extradition is sought.” As this constitutes a mandatory ground for refusal, the identification of the relevant conditions necessarily falls within the assessment of the judicial authority of the requested State. Accordingly, that authority must both assess limitation under its own domestic law and verify whether the offence has become time-barred under the law of the requesting State. The assessment of limitation must be carried out by applying the law in force at the time the offence was committed. The principle of tempus regit actum, together with the autonomous determination of limitation periods under the legal systems of both the requesting and the requested States, stems from the principle of double criminality—and, by the same token, of double prosecutability. Consequently, the law applicable for limitation purposes is necessarily that in force at the time the offence underlying the extradition request was committed.

In matters of extradition to a foreign State, a bar to surrender based on the risk to the individual’s fundamental rights arises where the requesting State, being involved in an armed conflict, is unable to provide adequate assurances as to the absence of a current risk to the safety of the requested person, due to the widespread, intense and exceptional nature of military attacks affecting its entire territory, where such a situation is objectively established, including as a matter of common knowledge.

Extradition is permissible only if the request is accompanied by the judicial decision constituting the legal basis of the request; therefore, regardless of the procedural stage that gave rise to it, the continuation of a precautionary measure beyond 40 days is never allowed in the absence of the documents required under Article 700 of the Italian Code of Criminal Procedure and Article 12(2) of the European Extradition Convention, in particular the foreign judicial order imposing the custodial measure.

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.

Pursuant to Article 698(2) of the Italian Code of Criminal Procedure, where the offence for which extradition is sought is punishable by death under the law of the requesting State, extradition may be granted only where the judicial authority has ascertained that a final and irrevocable decision has been adopted imposing a penalty other than the death penalty or, if the death penalty has been imposed, that it has been commuted to a different sentence. This principle also applies at the stage preceding the decision on surrender—namely, the pre-custodial and custodial stages—which are closely interconnected and functionally preparatory to the final extradition decision; otherwise, there would be no legal justification for restricting, even temporarily and provisionally, the personal liberty of the person concerned. Accordingly, an arrest carried out by the judicial police under Article 716(1) of the Code of Criminal Procedure for extradition purposes in relation to an offence punishable by death under the law of the requesting State is unlawful; nor may a provisional coercive custodial measure be imposed for the same offence pursuant to Article 716(3) of the Code of Criminal Procedure.

In extradition matters, in the absence of a treaty with the requesting State, the rule set out in Article 698(2) of the Italian Code of Criminal Procedure does not allow extradition for prosecution purposes to a foreign State where the offence for which extradition is sought is punishable by the death penalty.

In extradition proceedings, the party retains an interest in appealing a decision of no need to proceed issued on account of the absence of supplementary documentation relevant to the determination, where the party had primarily sought a ruling on the merits of the conditions for extraditability on the basis of the extradition request. This is because a decision of a purely procedural nature is not capable of producing the preclusive effect, under Article 707 of the Italian Code of Criminal Procedure, that would otherwise bar a subsequent decision granting extradition following a new request submitted by the same State for the same facts

The absence of the person sought for extradition, even if due to a “deliberate escape,” results in a ruling that the case should not proceed; the presence of the person sought for extradition in the requested State is an essential prerequisite for the application of the extradition process: if that person is no longer within the territory of the Italian Republic, this essential prerequisite is no longer met

In extradition proceedings, a mandatory ground for refusal arises where the request, formally based on an ordinary offence, in fact conceals a purpose of political persecution, provided that the person concerned submits concrete elements showing that surrender would expose them to a violation of their fundamental rights.

In cases of extradition to the China, a concrete risk of exposure to inhuman or degrading treatment must be considered to exist (as held by the European Court of Human Rights in Liu v. Poland, 6 October 2022), in light of multiple reliable international sources reporting systematic human rights violations, the tolerated use of forms of torture, and the substantial impossibility for independent institutions and organizations to verify the actual conditions in detention facilities.

Health conditions and extradition. The Russian Federation requested the extradition of an elderly Russian business executive for prosecution in connection with alleged fraud, embezzlement and corruption offences. The Court held that the requested person’s severe cardiac condition, diabetes and hypertension, requiring uninterrupted treatment and continuous medical monitoring, made surrender and the ensuing detention abroad incompatible with his health and exposed him to a concrete risk of significant pathological consequences. The Court regarded those health conditions as the decisive ground for refusal under Article 705(2)(c-bis) of the Italian Code of Criminal Procedure. It also considered Russia’s expulsion from the Council of Europe and the impending cessation of ECHR protection as an additional factor undermining the expectation of humane detention, and therefore rejected the extradition request.

Presence in the national territory as a prerequisite for extradition: the presence in the italian territory of the person whose extradition is sought constitutes an essential prerequisite for the request of the foreign state. it follows that, where it is established that the requested person is no longer present in italy, the conditions for ruling on extraditability are not met and the court must declare that there is no need to proceed.

In extradition proceedings, the Court of Appeal may base a decision refusing extradition on a measure adopted by the competent Territorial Commission of the Ministry of the Interior which has granted the requested person subsidiary international protection (which is less extensive than refugee status), on account of the risk of exposure to inhuman or degrading treatment in the event of return to the requesting State, provided that such measure is considered by the court to be complete, certain and reliable.

The Court of Appeal must refuse extradition “where reasons of health or age entail a risk of consequences of exceptional gravity for the requested person.” Such a ground for refusal may apply not only where adequate medical treatment cannot be ensured in the requesting State, but also where the extradition procedure itself is liable to prejudice the person’s health. In particular, such prejudice does not arise from any negative impact on the individual’s health, but only where extradition may result in consequences of exceptional gravity, namely serious and objectively verifiable pathological effects. Accordingly, the Court cannot confine its assessment to verifying whether the healthcare facilities in the requesting State are adequate to meet the person’s therapeutic needs, but must also take into account the concrete impact—and thus the potential adverse effects—of the surrender procedure on the requested person’s health. This includes, for example, the difficulties and possible complications arising from the transfer abroad or the need to avoid interruption of ongoing medical treatment.

The case concerned a Russian request for extradition from Italy for prosecution in relation to fraud allegedly committed through abuse of official position. The requested person opposed extradition, arguing that the accusation was false and politically motivated because of his opposition activity in Russia. He also produced evidence that he had applied for international protection in Spain before his arrest in Italy and had been authorised to remain there pending determination of that request. The Court of Appeal of Bologna refused extradition. It noted that, although the pending asylum procedure in Spain did not formally create an automatic bar to extradition, it was a relevant element, especially because the Spanish authorities indicated that, had the arrest occurred in Spain, extradition proceedings would have been stayed pending the asylum decision. The Court also found that the defence had substantiated a concrete risk under Article 698 of the Italian Code of Criminal Procedure. The materials produced described repeated human rights violations in Russia, including detention conditions incompatible with human dignity, excessive pre-trial detention, political misuse of detention, coerced confessions and ill-treatment, with particular concern for the region involved in the case. Those general risks were connected to the requested person’s specific situation through evidence suggesting that a co-accused had allegedly been pressured and detained to make accusations against him, and through defence investigations indicating a risk of political retaliation. The Russian authorities failed to respond to specific requests for information on these allegations. The Court therefore held that the combined asylum-related and persecution-risk factors prevented extradition.

In matters of passive extradition to China, where the offence for which surrender is requested is, in abstract terms, punishable by the death penalty, pursuant to Article 698(2) of the Italian Code of Criminal Procedure, surrender cannot be ordered in the absence of a final and irrevocable judicial decision excluding the application of capital punishment in the конкрет case; general assurances provided by the requesting State are insufficient. The Court clarified that the provision set out in Article 3(f) of the treaty between Italy and China does not apply. According to that provision, for the purposes of executing an extradition request, it is sufficient that there are elements excluding a “well-founded fear” of being subjected to “other cruel, inhuman or degrading treatment or punishment”. However, that rule concerns the manner of execution of a penalty necessarily different from the death penalty.

In matters concerning the extension of extradition, the conditions for granting the request are not met where, although only a summary assessment of the evidence submitted by the requesting State is required, the accompanying documentation does not provide a sufficient prima facie evidentiary basis as to the unlawful origin of the assets involved in the alleged self-laundering offence. The mere purchase of assets abroad, the failure to comply with tax disclosure obligations, and the temporal connection with offences already adjudicated are not, in themselves, sufficient to establish that the reinvested funds originated from the predicate offences.

The requested person must be informed of the subject-matter of the extradition proceedings. Accordingly, where such information did not cover additional episodes of fraud described in the custodial order subsequently transmitted in support of the extradition request, this gives rise to a ground of nullity. Indeed, in order to safeguard defence rights, once the subject-matter of the extradition proceedings has changed, the judicial authority must order the appearance of the person concerned; failure to do so results in nullity for violation of the right of defence and, consequently, in the invalidity of the acts carried out in the proceedings.

The issuance of a unilateral declaration of succession allows the newly independent State to avail itself of a “period of reflection”, during which it reserves the right to clarify its position with regard to the treaties concluded by the predecessor State. The actual continuation in force of bilateral treaties requires a clear and unequivocal expression of intent, however conveyed, demonstrating the intention—on the part of the State originally party to the treaty and recipient of that declaration—to remain bound by the provisions of the treaty concluded with the predecessor State. The intervention of the requesting State is permitted, unless otherwise provided by international conventions, until the procedural steps relating to the verification of the proper constitution of the parties in the chamber proceedings before the Court of Appeal competent to decide on the request for surrender have been completed.

Any divergence from the parameters of the Italian criminal system is, as a rule, irrelevant, unless such divergence is wholly unreasonable and manifestly conflicts with the general principles of legality and proportionality of penalties. Accordingly, extradition to China must be refused in respect of a person accused of conduct classified as fraud under Chinese law, which, under Italian law, would fall within the prohibition of pyramid selling schemes and chain sales under Article 5 of Law No. 173 of 2005. This is because, under the Chinese Criminal Code, that offence is entirely indeterminate as regards the maximum custodial sentence that may be imposed on the applicant if extradited and ultimately convicted, which is incompatible with the fundamental principle of the Italian legal system requiring the legislative predetermination of the maximum penalty.

The case concerned a European Arrest Warrant issued by the Greek judicial authority for drug-related offences, including introduction, purchase, transport and possession of narcotic substances. The requested person had been arrested in Italy and placed under a coercive measure, later replaced by an obligation to reside in a specified municipality. The Court of Appeal of Bologna requested supplementary documentation from the Greek authorities, including the restrictive measure underlying the warrant, if different from the judgment already transmitted, and the report required under Italian EAW legislation, with particular reference to the sources of evidence. The Greek authorities replied that there were no further restrictive measures beyond the transmitted judgment and that the only source of evidence was the requested person’s failure to appear. The Court held that, despite its request, the required documentation under Articles 6, 16 and 17 of Law No. 69/2005 had not been provided. In particular, the issuing authority failed to transmit a sufficiently detailed report clarifying the facts and evidentiary elements supporting the warrant. The Court therefore refused surrender and declared the coercive measure ineffective.