🇮🇹 Italy → 🇺🇦 Ukraine

The mere fact that a State is involved in an armed conflict does not automatically imply that detainees will be subjected to inhuman or degrading treatment. In any event, within extradition proceedings—during which the actual evolution of the armed conflict must be assessed on a case-by-case basis—it is always possible to request additional information from the requesting State, as well as any necessary assurances regarding the place of detention of the requested person and the respect of their fundamental rights.

The case concerned an extradition request by Ukraine for the prosecution of a Ukrainian national accused of aggravated misappropriation, bank fraud and forgery of an official document. The requested person opposed extradition, arguing, among other grounds, that the ongoing armed conflict in Ukraine exposed him to a real risk of death or inhuman or degrading treatment, and that his subsidiary protection status granted by Poland barred surrender. The Italian Supreme Court held that the mere existence of an armed conflict in the requesting State does not automatically preclude extradition. Rather, the executing court must carry out a concrete assessment of the actual risk faced by the requested person, taking into account the location of the detention facilities, their distance from active hostilities, the availability of protective measures, and reliable updated sources. In the present case, Ukraine had identified detention facilities located away from the areas of active conflict and equipped with shelters, while the available UN material showed only a low and non-specific risk in those areas. The Court further held that the CJEU case law concerning refugee status granted by another EU Member State does not apply to subsidiary protection. The appeal was therefore dismissed and the extradition order upheld.

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 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).

With regard to the request to replace the current custodial measure with house arrest, and as to why such measure — even with the prescribed conditions and safeguards — would not be sufficient to neutralise the identified precautionary needs, the Court is effectively silent. It follows that the challenged order must be quashed on this point; the Court of Appeal shall apply the stated principles and carry out a fresh assessment as to the adequacy of the measure currently in place, or the possibility of replacing it with house arrest.

The ground for refusal based on the risk to the person’s fundamental rights is established where, in the requesting State—engaged in an ongoing armed conflict—martial law is in force and no specific assurances are provided regarding the detention conditions that will be ensured for the person sought.

The prohibition under Article 297(3) of the Italian Code of Criminal Procedure on multiple precautionary charges entailing the application of the same coercive measure for “the same facts” also applies in extradition proceedings, in the absence of specific conventional or domestic provisions to the contrary. This follows from the general reference made by Article 714(2) of the Code of Criminal Procedure to the provisions set out in Title I of Book IV of the Code. The Court declared the custodial measure ineffective in respect of a requested person who had already served the maximum period of detention in the course of a different extradition proceeding initiated, for the same facts, following a prior request.