🇮🇹 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.

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”.

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.

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

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.

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 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.