🇮🇹 Italy →

The requested person challenged an Italian appellate decision authorising surrender to Greece under a European Arrest Warrant issued for prosecution for attempted murder and aggravated robbery. The Court held that the risk of inhuman or degrading treatment must be assessed also in relation to prosecution EAWs and requires an individualised examination of the actual detention conditions awaiting the requested person, including available personal space, overcrowding, time outside the cell, staffing levels and other compensating factors. It found that the appellate court had accepted the information supplied by the Greek authorities without sufficiently assessing whether those conditions complied with Article 3 ECHR and Article 4 of the Charter of Fundamental Rights. The judgment was therefore quashed and remitted for a new assessment of prison conditions, while the separate complaint concerning an alleged risk of discrimination connected with the requested person’s Kurdish ethnicity was dismissed.

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.

Brazil requested the extradition of a former federal parliamentarian for the enforcement of a sentence concerning unlawful carrying of a firearm and unlawful coercion committed with a firearm. The appellant challenged surrender on political-offence and persecution grounds, alleged unfairness before the Brazilian Supreme Federal Court, disputed double criminality, and relied on prison conditions and serious health concerns. The Court rejected the objections concerning the political character of the offences, fair trial, double criminality, and the general conditions at the designated women’s prison, finding the information and assurances on those matters sufficiently specific. It nevertheless quashed the judgment and remitted the case because the lower court had not obtained precise, individualised information showing that the requested person would receive continuous specialist monitoring, appropriate medication, and adequate treatment for her documented medical conditions.

The case concerned a European Arrest Warrant issued by Austria for the prosecution of a Bosnian national for participation in a theft allegedly committed in Austria in 2021. The Court of Appeal of Milan ordered surrender to the Austrian judicial authority. The requested person challenged the decision, arguing that surrender should have been refused because the offence had allegedly been committed partly in Italy, that the EAW lacked sufficient factual detail and indication of the applicable penalty, and that surrender to Austria would breach the rule of speciality because he had previously been surrendered to Italy by Croatia under a separate EAW concerning prison escape. The Italian Supreme Court held that the first two complaints were inadmissible, since the Court of Appeal had found that all statutory requirements were met, that the offence was committed in Austria, that it carried a five-year custodial penalty, and that the EAW contained a sufficient description of the conduct. However, the Court found the speciality complaint well-founded. The requested person had been surrendered by Croatia to Italy on the basis of an Italian EAW, and the Austrian EAW concerned an offence committed before that surrender. As a result, further surrender from Italy to Austria could be ordered only in compliance with the rule of speciality, including prior consent from Croatia, unless one of the statutory exceptions applied. Since the Court of Appeal had not verified whether Croatian consent had been obtained or whether an exception to speciality was applicable, the Supreme Court annulled the surrender decision and remanded the case to a different section of the Court of Appeal of Milan for a new assessment on that point.

The case concerned a European Arrest Warrant issued by the Romanian judicial authorities for the surrender of a Romanian national convicted, by a non-final judgment, of drug-related offences. The Court of Appeal of Naples ordered surrender, rejecting the defence objection based on the risk of inhuman or degrading treatment in Romanian detention. The requested person argued that the Court of Appeal had failed to properly assess several reliable sources, including statements from directors of Romanian penitentiary institutions, showing overcrowding and the lack of the minimum three square metres of personal space, excluding fixed furniture. The Italian Supreme Court held that the appellate court’s reasoning was merely apparent: it had relied on the general adequacy of the detention regime indicated by Romania, without analytically addressing the defence material that appeared, in abstract terms, capable of contradicting those assurances. The Court stressed that, where relevant defence sources have been duly submitted, the executing court must carry out a full assessment of all available information and, if uncertainty remains, seek supplementary information on the individual detention conditions. By contrast, the Court rejected the argument that surrender was barred because the Romanian conviction was not yet final, holding that the Framework Decision requires enforceability, not finality, of the conviction. The judgment was therefore annulled with remand for a new assessment of detention conditions.

The case concerned a prosecution European Arrest Warrant issued by the District Court of Rostock, Germany, in criminal proceedings for breach of instructions connected with German “conduct supervision”, a measure imposed after the requested person had fully served a previous prison sentence. The requested person argued that, given his alleged integration in Italy, the measure and any future sentence should be executed in Italy, and that the custodial measure was disproportionate. The Italian Supreme Court rejected the argument based on residence, noting that no five-year lawful and effective residence in Italy had been alleged and that, in any event, the case concerned a prosecution EAW, for which integration may at most lead to the return condition under Article 19(2) of Law No. 69/2005. However, the Court held that the Court of Appeal had failed to assess the legal nature of the German “conduct supervision” measure, which was essential to verify double criminality. Depending on its classification, the breach could be comparable under Italian law to violation of an ancillary penalty, breach of special preventive supervision, or mere breach of a security measure such as supervised liberty, the latter not amounting to a separate criminal offence in Italy. Since that assessment had not been carried out, the judgment was annulled and the case remitted for supplementary information and a new decision.

The case concerned a Romanian national sought by Moldova to serve a three-year sentence for facilitating prostitution. The Italian Supreme Court rejected the challenges based on double criminality, alleged discrimination in the revocation of the suspended sentence and the foreseeability of the criminal conviction, holding that these issues either concerned the merits of the foreign judgment or did not disclose an extradition bar. It found, however, that although the information provided by the Moldovan authorities was sufficient as regards the general prison system, it did not adequately address the requested person’s individual risk of reprisals arising from abuses allegedly suffered and reported during a previous period of detention in the same prison. The Court therefore annulled the decision and remanded the case so that specific assurances could be obtained to exclude that concrete and personal risk.

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.

After obtaining information or assurances concerning detention conditions, the Court cannot simply reproduce the indications provided by the issuing authority without carrying out an actual assessment of the defence submissions challenging the reliability or adequacy of the information transmitted by the requesting State.

The discretion granted to the Court of Appeal to postpone surrender in order to allow the requested person to stand trial in Italy for an offence other than that covered by the European Arrest Warrant necessarily entails an assessment of expediency. That assessment must take into account not only the seriousness of the offences charged and the date on which they were allegedly committed, but also the stage of the Italian proceedings and other relevant factors, including the person’s custodial status, the complexity of the proceedings, the procedural phase or level of jurisdiction reached, whether the proceedings have been finally determined by a res judicata judgment, and the length of any sentence to be served in Italy. These criteria must be assessed globally and in a reasoned manner, through an adequate and relevant statement of reasons. The evaluation is discretionary in nature and is based on the criteria arising from Article 20 of Law No. 69 of 2005. Where supported by adequate and pertinent reasoning, it is not subject to review by the Court of Cassation. In the present case, however, the judgment was entirely silent as to the appropriateness of postponing surrender, since it failed to carry out any comparative assessment of the procedural interests of the two Member States.

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.

The case concerned a United States request for extradition from Italy for prosecution on a charge of conspiracy to commit money laundering. The Court of Appeal had declared the conditions for extradition satisfied, subject to the condition that any extradition detention served in Italy be credited against a sentence eventually imposed in the United States. The requested person appealed, raising several objections, including alleged defects in the extradition request, the subsequent substitution of the extradition title following a Grand Jury indictment, lack of United States jurisdiction, insufficient evidentiary basis, breach of speciality, disproportionate punishment and the risk of inhuman or degrading detention conditions. The Italian Supreme Court rejected all grounds except the complaint concerning detention conditions. It held that the replacement or formal development of the extradition title during the proceedings did not bar extradition where the factual basis remained the same and the new title was submitted before the Court of Appeal’s decision. It also held that Italian courts are not required, in extradition to the United States, to review the existence of United States jurisdiction as a ground for refusal, and that the “reasonable basis” requirement under the Italy–US extradition treaty does not require an autonomous assessment of serious evidence of guilt. The Court further rejected the argument that the maximum penalty of twenty years for money laundering conspiracy was, in itself, manifestly disproportionate. However, it found that the Court of Appeal had failed to properly address the defence submissions on detention conditions. The defence had relied not only on NGO material but also on official United States prison standards suggesting that personal space could ordinarily fall below three square metres per detainee. This was a qualified source capable of raising a potential Article 3 ECHR issue. The Court therefore held that the Court of Appeal should have sought complete, current and individualized information from the United States on the specific detention conditions that would apply in case of surrender. The judgment was annulled with remand for a new assessment limited to that issue.

Where the 1957 European Convention on Extradition applies — which does not provide for an autonomous assessment of the evidentiary material by the authority of the requested State in cases of extradition for prosecution — the Italian judicial authority, on the one hand, must not confine itself to a merely formal review of the documentation attached to the surrender request and, on the other hand, is required to ascertain that the request sets out the reasons why, from the perspective of the requesting State, the commission of the offence attributed to the accused person was considered probable, without any possibility of directly examining the sources of evidence. Accordingly, even within the limits of a summary assessment as to the seriousness of the evidentiary indications, the requested authority must nevertheless assess, on the basis of the documents produced and the content of the request, the specificity of the charges and of the sources of evidence. That being clarified, where the evidentiary framework is sparse, Italian courts cannot rely on unsatisfactory and merely apparent reasoning, without specifying the allegations and the sources of evidence or investigative findings capable of linking the facts to the charges.

The principle of speciality requires that the facts and legal classifications for which surrender is requested and granted be indicated clearly and precisely; a mere generic reference to compliance with the principle under the applicable treaty is not sufficient. Consequently, a lack of clarity in the description of the facts, or the improper classification of the conduct under domestic conspiracy or criminal association offences solely for the purpose of verifying double criminality, may create the risk that the requesting State will prosecute the extradited person for offences different from those covered by the original extradition request or any subsequent extension, in breach of Article 721 of the Italian Code of Criminal Procedure and the principle of speciality.

EAW and risk of inhuman treatment: if the lawyer of the sought person files reliable and specific sources concerning shortcomings in the current prison system of the requesting State (Romania), it becomes necessary to assess the individualised detention conditions and such an assessment cannot be excluded ab initio. Indeed, notwithstanding a trend of progressive improvement, international authorities continue to report widespread deficiencies in the Romanian penitentiary system.

In extradition proceedings governed by the 1957 European Convention on Extradition, the Italian judicial authority, even where the applicable convention does not require a full assessment of serious indications of guilt, must carry out a summary assessment under Article 705 of the Italian Code of Criminal Procedure. Such assessment cannot, however, amount to a detailed review of the evidentiary framework, since the requesting State is not required to transmit the evidence itself, but only sufficiently precise factual allegations and an indication of the evidentiary basis supporting the accusation within the requesting State’s procedural system.

The case concerned a Swiss request for prosecution extradition in relation to several aggravated robberies, committed and attempted, allegedly carried out with weapons against fuel stations, as well as firearms-related offences. The Court of Appeal of Bologna had refused extradition, finding that the material transmitted by the Swiss authorities did not allow even a summary positive assessment of the existence of serious indications of guilt. The Italian Supreme Court held that, under the European Convention on Extradition, the requesting State is not required to transmit the evidence itself, but must provide a sufficiently precise account of the factual and evidentiary basis supporting the alleged responsibility of the requested person. The Court found that the Swiss request contained an analytical description of the facts and identified categories of evidence, including telephone contacts, cell-site data, vehicles allegedly used by the suspects, video surveillance, victim statements and automatic vehicle monitoring. Since this was sufficient for the limited summary assessment required in extradition proceedings, the judgment refusing extradition was annulled and the case remanded to another section of the Court of Appeal of Bologna.

The case concerned a Swiss request for prosecution extradition in relation to several aggravated robberies, committed and attempted, allegedly carried out with weapons against fuel stations, as well as firearms-related offences. The Court of Appeal of Bologna had refused extradition, finding that the documents transmitted by the Swiss authorities did not allow even a summary positive assessment of the existence of serious indications of guilt. The Italian Supreme Court held that, under the European Convention on Extradition, the requesting State is not required to transmit the underlying evidence itself, but must provide a sufficiently precise account of the factual and evidentiary basis supporting the alleged responsibility of the requested person. In this case, the Swiss request contained an analytical description of the facts and identified categories of evidence, including telephone contacts, cell-site data, vehicles allegedly used by the suspects, video surveillance, victim statements and automatic vehicle monitoring. Since those elements were sufficient for the limited summary assessment required in extradition proceedings, the judgment refusing extradition was annulled and the case was remanded to another section of the Court of Appeal of Bologna.

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.

It is certainly not for the Italian judicial authority to verify the existence of the custodial requirements set out in Article 274 of the Italian Code of Criminal Procedure for the adoption of a “domestic” precautionary measure by the foreign judicial authority. The only relevant consideration is that the European Arrest Warrant constitutes a judicial decision issued for the purpose of conducting criminal proceedings. It is therefore clear that the challenged decision confuses two distinct levels: on the one hand, the precautionary measure issued by the requesting State; on the other, the measure to be adopted by the requested State in order to ensure the execution of the warrant through the surrender of the requested person.

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.

It does not fall within the powers of the Court of Appeal to calculate the sentence to be served following the granting of extradition. The judicial review that judges are called upon to carry out, in the case of an extradition request, is in fact limited to verifying the existence of the legal requirements and the absence of grounds preventing the acceptance of the request, without being able to modify or adapt the foreign enforcement title. The determination of the sentence to be executed for the offences for which extradition is granted is an exclusive prerogative of the requesting State, entrusted to the institutional responsibility of that country’s judicial authorities and not to those of the requested State.

The Court of Appeal competent to examine the extradition request (and, consequently, the request for the issuance of precautionary measures) must be identified as the court within whose district the person sought has their residence, abode, or domicile at the time the extradition request is received by the Minister of Justice. Furthermore, where such place is unknown and it is not even certain that the requested person has left Italian territory, jurisdiction lies with the Court of Appeal of Rome. In addition, in remittal proceedings, the jurisdiction established by the quashing decision cannot be reconsidered, unless new facts emerge leading to a different legal classification from which the jurisdiction of a higher court would follow.

Deterioration of health conditions and incompatibility of the detainee’s health conditions with the prison regime: when ruling on an application for revocation or replacement of the measure, the Court of Appeal must take into account the content of the defence submissions where new elements are alleged in comparison with the previous assessment.

Extradition requested in relation to two separate convictions, but transmitted by the Italian Minister of Justice with respect to only one of them (without mentioning the other). Stating — as argued by the Prosecutor – that this was merely a “clerical error in the transmission note” is debatable, as there is no certainty as to the position that the Minister of Justice intended to take with regard to the extradition request relating to the second judgment. The ministerial silence concerning the “second judgment”—especially when contrasted with the explicit stance taken on the “first judgment”—leaves room for both possible interpretations: on the one hand, the hypothesis of a material error; on the other hand, an implicit expression of intent not to proceed with the extradition request. Accordingly, interpreting such silence one way or the other is, from a logical standpoint, entirely open to dispute. It is also possible that the theory of a material error will ultimately prove to be correct in practice. But it is equally possible that the alternative explanation is the “true” one. Preferring one hypothesis over the other—by interpreting an equivocal element—risks encroaching upon a sphere that, as noted, falls within the prerogatives and responsibilities of the Minister.

If specific assurances are requested regarding detention conditions, generic information lacking any degree of individualisation cannot be regarded as sufficient, such individualisation being a necessary precondition also for assessing the concrete adequacy of any compensatory measures, which must be calibrated to the extent of the prejudice otherwise arising from overnight confinement in a cell. Accordingly, where a specific receiving prison has not been identified and, above all, where the size of the cells (to be assessed in relation to the number of detainees expected to remain therein, at least during night-time) has not been provided, further inquiries will be required.

In extradition proceedings, the reciprocity condition is satisfied when the requesting State provides an assurance of substantially equivalent treatment — formal diplomatic notes from the Chinese Embassy confirming no restrictions on Italy's participation in passive extradition proceedings are sufficient to this end. The legitimacy of a sub-state authority to represent the requesting State is confirmed by the Embassy and cannot be challenged under the requested State's domestic law. Any authority empowered under the requesting State's internal law to act in extradition proceedings must be recognized as a procedural party. Under Article 702 of the Italian Code of Criminal Procedure, the only formal requirement for the requesting State's intervention is the appointment of a lawyer admitted to practice before Italian courts, with no further formalities prescribed. A distinction must be drawn between mere participation in the proceedings — which requires only an explicit expression of interest — and full procedural standing as a party, which requires the appointment of counsel and confers the right to participate in oral argument and to lodge an independent appeal before the Court of Cassation.

The judicial authority cannot rely on generic assurances provided by the Hungarian authorities where such assurances are not capable of guaranteeing compliance with the principle that the specific custodial treatment to which the requested person will actually be subjected must be made known. The decision must instead be based on the acquisition of “individualised” information on the detention regime.

In the context of a procedural European Arrest Warrant, a judge who does not consider it appropriate to make the execution thereof conditional upon the guarantee that the person to be surrendered, following the conclusion of the proceedings, be returned to Italy to serve any custodial sentence or security measure that may be imposed by the issuing State, is required to provide specific reasoning for such a decision, with regard to the social rehabilitation needs of the convicted person, setting out the elements taken into consideration and the relevant assessment criteria.

Prison conditions in Moldova: where an alert situation exists, arising from the established presence of risk conditions, the necessary assessment by the Italian courts requires that specific assurances be obtained from the issuing State. Such assurances cannot be limited to general statements, but must be individualized in relation to the situation of the person concerned by the surrender proceedings. Moreover, the scrutiny of the guarantees regarding the treatment of the requested person must be all the more rigorous, considering that the offence for which the conviction was issued would not be classified as serious under our legal system.

In extradition proceedings, the acquisition of specific and individualised information is necessary where information—emanating from official sources—reveals structural deficiencies in the prison system of North Macedonia, and thus a risk that detained persons may be subjected to inhuman or degrading treatment. The Court of Cassation considered, among the relevant assessment parameters, the findings of a report issued by the European Committee for the Prevention of Torture of the Council of Europe, published in 2017, whose conclusions were substantially confirmed during a subsequent visit by the same Committee in 2019. With specific reference to the present case, it should be noted that the existence of information from official sources regarding structural shortcomings in the North Macedonian penitentiary system is even more up to date, as evidenced by a report of the Council of Europe’s Committee against Torture dated June 2024, which—broadly speaking—highlighted that, compared to previous CPT inspections in 2016 and 2019, no improvements have been made in the treatment of persons deprived of their liberty.

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.

In matters of flight risk, neither prior convictions nor the severity of the sentence can, in themselves, establish proof of a risk of absconding, as they are abstract considerations from which it is not possible to infer a genuine intention to evade the decision that the Court of Appeal will ultimately take at the end of the proceedings. In particular, while the severity of the sentence is an element of undeniable relevance, it cannot be regarded as the sole benchmark; rather, it must be assessed in conjunction with other specific factors capable of demonstrating a concrete likelihood that the requested person may clandestinely abscond.

In matters of extradition for prosecution to a foreign State, the Italian judicial authority, when assessing the existence of serious indications of guilt as required under Article 705(1) of the Italian Code of Criminal Procedure in the absence of an extradition treaty with the requesting State, may not apply the “simplified” evidentiary regime set out in Article 16 of the United Nations Convention against Transnational Organized Crime, concluded on 15 November 2000 and implemented by Law No. 146 of 16 March 2006, since that Convention does not have the legal nature of an extradition treaty.

EAW: although flight risk may, by its nature, be assessed more broadly than in ordinary proceedings, it must nonetheless exist and cannot dissolve into a form of “inadmissible presumption”. It must display characteristics of concreteness as well as present relevance, and must be supported by specific reasoning grounded in concrete elements drawn from the requested person’s life. Accordingly, the Italian court cannot base pre-trial detention in custody solely on the seriousness of the alleged offence, the severity of the penalties imposed, or the fact that the arrested person—despite being domiciled in Italy and identified by means of an Italian identity card—has not provided elements capable of excluding such risk (all the more so where the offence was committed many years earlier).

Where there is a potential overlap between the charges forming the basis of a European Arrest Warrant and the provisional charges brought in criminal proceedings pending in Italy, the Court is required to assess the applicability of the optional ground for refusal set out in Article 18-bis of Law No. 69/2005. Under this provision, surrender may be refused where criminal proceedings are pending in Italy in respect of the same facts underlying the European Arrest Warrant. In the case at hand, the Court of Appeal essentially failed to ascertain whether this condition was met, having merely stated that the predicate offences were different, without carrying out any specific assessment in relation to the offence of criminal association. In so doing, it breached Article 18-bis, which—according to settled case law—requires the Court of Appeal, where the request for surrender concerns acts committed in part within the national territory, to verify both the identity of the facts and whether criminal proceedings are already pending in Italy in respect of the conduct underlying the European Arrest Warrant.

In assessing the existence of flight risk, the mere availability of accommodation suitable for house arrest, the absence of stable ties to the national territory, and a demonstrated propensity for international travel—allegedly supported by financial means and logistical networks—do not, in themselves, constitute sufficient grounds to deny the application of less severe custodial measures. Such elements, if relied upon in abstract or generalized terms, amount to mere suspicion rather than a concrete and individualized assessment of the case. Accordingly, where house arrest is requested, the judicial authority is required to provide specific reasoning as to the inadequacy of that measure, which cannot be inferred solely from factors that are, in principle, neutral, such as financial capacity or habitual mobility across different countries.

The judgment, while granting the surrender request on the basis of an EAW issued for the enforcement of a custodial sentence, must indicate the extent of the sentence to be served, while leaving to the sentencing judicial authority the task of recalculating the penalty. In the case of an EAW issued for the enforcement of a conviction relating to multiple offences, compliance with the minimum threshold of the sentence (not less than four months), as provided by Article 7(4) of Law No. 69 of 22 April 2005, must be assessed with reference to the overall sentence imposed, and not to the sentence applied to each individual offence. The judgment must therefore be quashed, so that the Court of Appeal may remedy the identified shortcomings, if necessary by initiating further communication with the issuing judicial authority, specifically aimed at obtaining at least the transmission of the judgment — not for the purpose of recognition and enforcement in Italy (which that State has declared not to allow), but in order to determine the enforceable title and the duration of the sentence to be executed.

In matters of extradition to a foreign State, when assessing the existence of grounds precluding the issuance of a decision in favor of surrender - which, pursuant to Article 714(3) of the Italian Code of Criminal Procedure, also bar the adoption of coercive measures aimed at securing its execution - the Court of Appeal is required to determine whether, on the basis of objective and reliable elements, there is a risk that the person sought will be subjected, in the requesting State, to inhuman or degrading treatment (also considering the impact of Russia - Ukraine war).

Where the information concerning the nature of the European Arrest Warrant and the detention regime is insufficient, the judicial authority is required to seek further details from the judicial and prison authorities of the issuing State. Should the information provided prove to be lacking or inadequate, the warrant may be deemed unsuitable, potentially leading to a reassessment of the surrender request.

Assessment of flight risk must take into account all the available elements and must not be “deficient”, to the point of being merely apparent, nor disconnected from the elements underlying the application for a coercive measure and the supporting materials. Judges must therefore assess any departure from or unavailability within Italy of the requested person, as this constitutes an objectively verifiable factor grounding the risk of evading surrender.

The United States requested the extradition of a Russian-German national from Italy for offences connected with the operation of a cryptocurrency exchange platform and money laundering. Germany subsequently issued a European Arrest Warrant concerning conduct allegedly overlapping with the facts underlying the extradition request. The Supreme Court quashed the decision authorising extradition because the Court of Appeal had relied on a decision issued in the separate EAW proceedings without formally introducing it into the extradition case or allowing the parties to comment on it, thereby breaching the adversarial principle. The Court further held that the requested judicial authority must activate the Petruhhin notification mechanism by informing the member state of nationality and allowing it a reasonable period to take appropriate action. In addition, where an EAW and a third-country extradition request coexist, the judicial authority must seek the prior opinion of the Minister of Justice under the EU-US Extradition Agreement before deciding which request should take precedence. The case was remitted for a new decision.

The imposition of an obligation to perform work is not, in principle, prohibited under human rights conventions. However, the Court is required to ascertain whether the penalty provided for by the legislation of the requesting State amounts, in substance—irrespective of its formal designation—to treatment that violates the individual’s fundamental rights. Accordingly, in matters concerning forced labour and “work normally required of a detained person,” it is necessary to examine the consequences of any failure to comply with the obligation to provide compensation, whether the conviction expressly provides for forced labour and, if so, the nature and modalities of such labour, in order to determine whether it falls within the scope of “work normally required of a detained person.”

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.

In matters of extradition to a foreign State, where the request for surrender is made by the third country of origin of a person to whom another Member State of the European Union has granted temporary protection pursuant to Directive 2001/55/EC, the requested Italian judicial authority must initiate prior consultations with the State that granted such protection, in order to ascertain whether it precludes the execution of the extradition or whether the authority that granted it intends to revoke it pursuant to Article 28 of that Directive. In this context, the principles laid down in the judgment of the Court of Justice of the European Union of 18 June 2024, Case C-352/22, concerning persons granted refugee status under Directive 2011/95/EU, shall apply. (Case concerning an extradition request submitted by Ukraine against one of its nationals, to whom the Portuguese authorities had granted temporary protection, pursuant to Directive 2001/55/EC and Council Implementing Decision (EU) 2022/382 of 4 March 2022, for persons fleeing the ongoing war in that country).

Where the defence specifically raises the existence of a concrete risk of inhuman or degrading treatment arising from the prison regime to which the requested person would be subjected, such assessment must be carried out by requesting from the issuing State all information concerning the specific detention conditions envisaged for that individual. Accordingly, where the information provided by the requesting State is inadequate or unclear—particularly with regard to issues such as prison overcrowding or the characteristics of the cells—a further request for supplementary information must be made.

The Court of Appeal must carry out a specific assessment where the requested person, on the basis of objective, reliable, precise and properly updated elements, alleges a serious risk of being subjected to inhuman or degrading treatment in the issuing State. Once the existence of a general and current risk of inhuman treatment in the Member State has been established on the basis of reliable sources, it is necessary to verify whether, in the конкрет case, the person subject to the European Arrest Warrant would actually be exposed to such treatment. Accordingly, a targeted inquiry must be conducted in order to ascertain—through “individualised” information to be requested from the issuing State—the specific detention conditions to which the requested person will be subjected, with particular regard to those aspects identified by reliable sources as critical and capable of giving rise to a risk of inhuman or degrading treatment.