🇮🇹 Italy → 🇦🇱 Albania

The requested person challenged an Italian appellate judgment declaring the conditions for extradition to Albania satisfied solely in respect of a drug-trafficking offence allegedly committed in Italy. He argued that surrender for the predicate offence would breach the principle of speciality because extradition had been refused for the related criminal-association charge, that the evidentiary basis was insufficient, that territorial commission gave priority to Italian jurisdiction, and that detention conditions in Albania created a risk of inhuman or degrading treatment. The Supreme Court of Cassation rejected the appeal, holding that the speciality rule prevents prosecution for offences for which extradition was not granted, while the commission in Italy of part of the requested offence does not exclude concurrent foreign jurisdiction. Under Article 7 of the 1957 European Convention on Extradition, territoriality constitutes only an optional ground for refusal, whose application falls within the exclusive competence of the Minister of Justice, and the detention complaint was contradicted by official assurances from the requesting State.

The case concerned Albanian requests for extradition from Italy for the execution of convictions for fraud. The proceedings followed an annulment by the Italian Supreme Court, which held that, under the European Convention on Extradition, an execution request requires transmission of an enforceable conviction, not necessarily an irrevocable one. On remand, the Court of Appeal of Bologna declared the conditions for extradition satisfied. It held that the Albanian appellate judgment, although still potentially subject to challenge under Albanian law, was executable and therefore sufficient for extradition purposes. The Court also rejected the defence argument that Italy should exercise jurisdiction because the offence had been committed abroad by persons allegedly assimilated to Italian citizens for criminal-law purposes. Since the offence had not been committed in Italy and Italian law allowed prosecution of the same type of offence committed abroad, Article 7 of the European Convention did not bar extradition. The Court further held that trial in absentia was not an obstacle, because Albanian law allowed restoration of time to challenge a judgment rendered in absentia and that remedy had in fact been used. Nor was Albania required to prove the absence of parallel proceedings in a third State. Finally, the Court rejected the request to allow execution of the sentence in Italy, holding that, in extradition proceedings, the Court only assesses the legal possibility of surrender, while any opportunity assessment linked to rooting in Italy belongs to the Minister of Justice. Extradition was therefore granted.

Extradition under the European Convention on Extradition does not entail an assessment by the requested State of the existence of serious indications of guilt. However, the judicial authority of the requested State cannot confine itself to a merely formal review of the accompanying documentation; rather, pursuant to Article 705 of the Italian Code of Criminal Procedure, it must carry out a prima facie assessment aimed at verifying—on the basis of the materials submitted—the existence of elements against the requested person, viewed within the procedural framework of the requesting State. In other words, the Italian judicial authority is required to ascertain, through a summary evaluation, that the documentation attached to the request is concretely capable of demonstrating—within the perspective of the requesting State’s legal system—the existence of evidence against the person sought, corresponding to offences that are also punishable under domestic law, on the basis of a sufficiently detailed description of the sources of evidence. This must be done, contrary to the applicant’s argument, without conducting an autonomous assessment of the seriousness of the evidentiary indications.

The Italian Supreme Court dismissed an appeal against a judgment of the Court of Appeal of Turin declaring that the conditions for extradition to Albania were met. The extradition request concerned criminal proceedings in Albania for attempted murder, unlawful detention and carrying of firearms and ammunition. The sought person argued that, if extradited, he would face a serious risk to his life and physical integrity because of a family blood feud allegedly governed by the customary rules of the Kanun. He also relied on pending proceedings for international protection in Italy. The Supreme Court reiterated the autonomy of extradition proceedings from asylum or international protection proceedings. A pending request for international protection does not suspend the extradition procedure and does not require the extradition court to postpone its decision. The Court further held that the alleged risk arising from a private family feud did not amount, in itself, to a condition preventing extradition. The prohibition on extradition applies where the risk of persecution, discrimination, cruel, inhuman or degrading treatment, or other violations of fundamental rights is attributable to a legal or factual choice of the requesting State. In this case, the alleged danger was linked to private conduct and not to state policy or state action. The Court also considered that the Albanian authorities could provide protection to the sought person, including by placing him in a detention facility away from the geographical area where the alleged feud was rooted. The allegations concerning the inability or inertia of the Albanian authorities were considered generic.

Under the surrender regime governed by the European Convention of 13 December 1957, the Italian judicial authority is required to ascertain, through a summary assessment, that the documentation attached to the request is concretely capable of establishing—within the framework of the requesting State’s procedural system—the existence of elements against the requested person amounting to offences also punishable under domestic law, on the basis of an adequate description of the sources of evidence. The Court of Appeal is therefore certainly not required to conduct an autonomous evaluation of the seriousness of the evidentiary indications. In light of the clear accusatory framework, it must also be noted that the appellant has not provided any contribution, even documentary, to demonstrate his lack of involvement in the alleged facts. Any evidence of innocence—“not known to the judicial authority of the requesting State and submitted for the first time to the Italian judge”—may nonetheless be considered within extradition proceedings only if it is decisive in nature and absolutely clear and incontrovertible; otherwise, such an assessment would amount to undue interference in the judicial affairs of the requesting State.

In extradition matters, the risk that the person sought may be subjected to acts of private revenge by individuals unconnected with institutional authorities and acting for personal motives does not constitute a ground for refusal under Article 705 of the Italian Code of Criminal Procedure, as such contingencies can be prevented through the adoption of adequate protective measures by the requesting State.

Whereas, on the one hand, the restriction of personal liberty is functionally—and therefore also temporally—limited to the fulfilment of such obligations, on the other hand the risk of flight typically arises, in practice, in broader terms than in ordinary matters, with the consequence that the balancing of interests (protection of personal liberty vs. the fulfilment of the demands of justice) inherently entails an assessment of broader scope than under the ordinary framework of values within our legal system, this being associated with a different standard of reasoning required from the court.

The progress made by Albania, particularly in the area of the rule of law and fundamental freedoms, led the European Council to formally open accession negotiations with the European Union on 19 July 2022. Furthermore, with specific reference to prison conditions, on 23 November 2021 the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment of the Council of Europe conducted a visit to Albania, at the conclusion of which it did not report any instances of inhuman or degrading treatment.

Decisions concerning the suspension of surrender of a requested person—where the individual is subject in Italy to criminal proceedings or must serve a sentence in Italy for an offence committed either before or after the one for which extradition has been granted—as well as decisions on temporary surrender or on the execution of the sentence abroad, pertain to the administrative phase falling within the competence of the Minister of Justice, and not to the judicial phase, which concludes with the judgment granting the extradition request. In this respect, it has been held that the existence, within the territory of the State, of criminal proceedings against a foreign national whose extradition has been requested entails the suspension—within the competence of the Minister of Justice—of the execution of the extradition, but does not preclude a favourable determination by the Italian judicial authority on the request of the foreign government.

In extradition proceedings, the assessment of the existence of serious indicia of guilt must be carried out autonomously by the judicial authority of the requested State. Evaluations or findings made by the judicial authorities of a third State, other than the requesting State, have no relevance or binding effect in determining whether the evidentiary threshold required for extradition is satisfied.

Risk of inhuman or degrading treatment: where the objections raised are generic and unsupported by evidence capable of substantiating them—being limited to a mere reference to a report following a visit by the European Committee for the Prevention of Torture, without any connection to the specific circumstances of the case—no obstacles arise to the granting of extradition.

Double criminality: it is not necessary that the abstract structure of the offence under the foreign legal system finds an exact counterpart in a provision of the Italian legal system; it is sufficient that the specific conduct is punishable as a criminal offence under both systems. Any differences—whether in terms of penalties, legal classification, or the constituent elements required for the offence—are irrelevant. Likewise, it is immaterial that, under Italian law, prosecution is subject to a complaint, or that the conduct may qualify as particularly minor pursuant to Article 131-bis of the Italian Criminal Code, or that the offence has been extinguished due to reparatory conduct. The assessment must focus solely on whether the conduct is classified as a criminal offence in both legal systems.

The prohibition on granting extradition in cases where there are grounds to believe that the requested person will be subjected to persecution or discrimination, or to cruel, inhuman or degrading punishment or treatment, or in any event to acts amounting to a violation of fundamental human rights, applies only where such a situation is attributable to a legislative framework or a de facto practice of the requesting State. This applies irrespective of contingencies extraneous to institutional policies, in respect of which legal protection remains, in any event, available.

Issues relating to the rules governing the invalidity or inadmissibility of procedural acts within criminal proceedings conducted in summary form before the judicial authorities of the requesting State are not subject to a review on the merits by the authorities of the requested State and do not, in themselves, entail a conflict with the fundamental principles of its legal system. Indeed, fundamental rights — including the principle of adversarial proceedings in the taking of evidence — may be guaranteed in non-uniform ways across different national procedural systems.

In the event of a failure to reopen evidentiary proceedings in the requesting State (following summary proceedings), there is no violation of a fundamental principle of the Italian legal system (which could be relevant for extradition purposes), as such a possibility is recognised by case law. Moreover, the current version of Article 603(3-bis) of the Italian Code of Criminal Procedure, as amended by the so-called “Cartabia reform”, clarifies that the general principle requiring the reopening of evidentiary proceedings in cases of reformatio in peius of an acquittal — where it is based on the assessment of testimonial evidence — applies only where such evidence was taken at the first-instance trial hearing or following the admission of additional evidence in summary proceedings pursuant to Articles 438(5) and 541(3) of the Code of Criminal Procedure, and not in cases of “pure” summary proceedings, such as those conducted at first instance in the proceedings held in Albania.

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.