Extradition between Germany and Italy

Following the regulations of the European Arrest Warrant, EU member states are obliged to extradite their citizens. Extradition of citizens can only be refused if the requested member state enforces the sentence imposed on the requested person itself.

The Italian Constitution stipulates in Art. 26, 10 Cost. that extradition is only lawful in cases expressly regulated by international treaties and not in cases of political offences. The provisions controlling the extradition procedure are governed by criminal law under Art. 13 of the Penal Code. The eleventh book of the Codice di Procedura Penale sets out the precise procedural regulations from Art. 697 onwards.

In Germany, the provisions of the Act on International Mutual Assistance in Criminal Matters (IRG) govern the area of extradition. Section 1 (3) IRG stipulates that international law provisions take precedence over the provisions of the IRG insofar as they have become applicable to domestic law. This means that in areas where the EU has issued its regulations, EU law and not the IRG is applicable. Since the introduction of the European Arrest Warrant (EAW), extraditions within the EU are generally governed almost exclusively by EU law for all EU states, including Italy, due to the primacy of EU law.

The European Arrest Warrant was introduced in 2004 and serves to simplify the handover of wanted persons within the EU. If a person is wanted by one of the member states for criminal prosecution or the execution of a sentence, the EAW has replaced the lengthy extradition procedures that were previously necessary. The basis for the simplified process is the principle of trust that applies in many areas of the European Union. This means that the member states are fundamentally obliged to recognise court decisions from another member state without carrying out a separate examination of their own. In short, the rule of law of the other member state should be trusted.

Nevertheless, there are some instances in which the authorities can refuse an extradition request from another member state. This applies, for example, if the wanted person is a minor, has previously been convicted of the same offence (according to the “ne bis idem” principle), or the crime is time-barred.

In addition, the procedural rights of the persons concerned must always be observed when issuing and implementing an EAW. These include the right to information in criminal proceedings (Directive 2012/13/EU), the right to interpretation and translation (Directive 2010/64/EU) and the right of access to a lawyer in criminal proceedings (Directive 2013/48/EU). In addition, the provisions of the European Charter of Fundamental Rights must always be observed when applying EU law, in particular Articles 47 – 49, which lay down fundamental principles such as the right to a fair trial and the presumption of innocence. If a person’s fundamental rights are violated during proceedings, legal remedies must always be lodged against the respective national authority based on national law.

The rule of law always binds national authorities during extradition proceedings. As a result, authorities are obliged to refuse a foreign extradition request if there is a suspicion that the rule of law is being violated in criminal proceedings or in executing the sentence in the requesting state. In such cases, the authorities must make an exception to the principle of trust. The ECJ (European Court of Justice) has confirmed this on several occasions, for example, when it stopped an extradition from Germany to Hungary at the request of the Higher Regional Court of Bremen.

Regarding Italy, this is particularly relevant because of reports from various human rights organisations. For example, Human Rights Watch takes up the European Commission’s warning that the independence of the Italian public prosecutor’s office must be strengthened, and the length of court proceedings drastically shortened to guarantee a fair trial. Violence on the part of security authority personnel was also increasingly observed. In its 2022/2023 annual report, Amnesty International refers to a court case against 105 prison guards and other officials who were prosecuted for torture and violent suppression of the protest in an Italian prison in 2020.

In addition, extradition requests have been refused in various cases due to inhumane detention conditions caused by overcrowded prisons. One example of this is the Torreggiani case of 8 January 2013, in which the European Court of Human Rights unanimously ruled that Italy had violated Article 3 of the European Charter of Human Rights due to overcrowded prisons and the resulting inhumane detention conditions and stopped the extradition of the persons concerned. The latest statistics from the Ministry of Justice also confirm that the situation in Italian prisons has not yet improved. Prisons are still overcrowded, which can still lead to inhumane prison conditions in Italy.

Due to such incidents, it cannot be assumed that the rule of law and humane prison conditions are always fully guaranteed in Italy. It is, therefore, advisable for those affected to seek comprehensive legal advice, in particular, to have the course of the proceedings and the expected conditions of execution of the sentence examined in detail in the event of imminent extradition to Italy.