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2017 bilateral extradition treaty identifies “extraditable offences”, i.e. offences capable of giving rise to extradition, and—so far as extradition for prosecution is concerned—defines them as those punishable under the laws of both Parties “by a custodial sentence of at least two years”. This Court, when interpreting the 1983 extradition treaty with the United States—which contains a similar formula for identifying extraditable offences (offences punishable “by deprivation of liberty for a period exceeding one year or by a more severe penalty”)—has already held that the custodial sentence requirement must be understood as referring to the maximum statutory penalty provided for under the laws of both countries. It should be added that, in international practice (see the Model Treaty on Extradition elaborated by the United Nations), two factors are taken into account in order to identify extraditable offences and avoid extradition for trivial conduct: the range of the statutory penalty for extradition for prosecution, and the sentence actually imposed for extradition for enforcement. In the former case, the “minimum” threshold of the statutory penalty considered by treaties corresponds to the maximum penalty abstractly provided for by law (as clarified by the Model Treaty, the “minimum penalty” test is intended to ensure that the treaty applies only to offences of a certain seriousness).

In matters of precautionary measures, the requirements of concreteness and currency (actuality) of the risk of flight must be assessed by the judge in light of the purpose of surrender, to which the procedure is directed, and therefore on the basis of a prognostic evaluation, grounded in concrete elements drawn from the person’s life, as to the risk that he may evade it by leaving the national territory. That being said, the fact that the person’s wife is domiciled in Italy and that the lease agreement is in her name—relied upon by the defence as new elements allegedly demonstrating the person’s ties to Italy—were deemed of lesser weight, also in light of the circumstance that the identification and arrest of the appellant required a specific surveillance and tracking operation by the police, which would indicate the occasional nature of his presence in the place where he was found.

Flight risk justifying the application of a measure restricting personal liberty may be understood as the risk that the requested person may abscond from the territory of the requested State, thereby jeopardising compliance with the international obligation to ensure his or her surrender to the requesting State. The existence of such a risk must be duly reasoned and grounded on concrete, specific, and indicative elements demonstrating a genuine propensity and a real possibility of clandestine departure by the requested person. These elements must be closely connected to the factual circumstances of the case and must not be based on presumptions, preconceived general assessments, or merely hypothetical or abstract possibilities.

Statute of limitations does not constitute a bar to surrender where crimes against humanity are at issue. Such crimes offend transnational interests and violate jus cogens, namely those norms of positive law universally recognised as binding by all States, which, being placed at the apex of the international legal order, prevail over any other rule of law, whether treaty-based or customary, and are incorporated into the domestic legal system pursuant to Article 10 of the Constitution. The principle of the non-applicability of statutory limitations to crimes against humanity is also affirmed by the Rome Statute of the International Criminal Court, ratified by Uruguay. Moreover, Article 4 of Law No. 110 of 14 July 2017 excludes the possibility of recognising any form of immunity for foreign nationals investigated or convicted abroad for acts amounting to torture.