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Extradition to US of an EU citizen (Cass. 31287/22)

17 August 2022, Italian Supreme Court

On extradition of an EU citizen to a third state (U.S.), the principles set forth in the CJEU Petruhhin, Pisciotti, and BY rulings should be applied by Italian courts, informing the state of EU citizenship, and - if necessary - verifying compatibility of detention conditions with right to health and right to treatment respectful of Article 3 of the EDU Convention.

Italian Supreme Court
Section 2 Criminal

n. 31287 Year 2022
Hearing Date: 08/07/2022  - filed 22/08/2022


on the appeal brought in the interest of CMD, born in Romania on **/1972, against the judgment dated 14/2/2022 of the Court of Appeal of Rome, acting as judge of extradition control, pursuant to art. 704, cod. proc. penal,
Having regard to the acts, the contested order and the appeal;
Hearing the report delivered by Justice Massimo Perrotti;
having heard the public prosecutor in the person of the deputy attorney general, Dr. Paola Mastroberardino, who concluded that the appeal (first ground) be granted, the second and third ground unfounded;
heard the appellant's counsel, attorney Nicola Canestrini, who insisted on the annulment of the appealed judgment.


1. In Judgment No. 1203 of December 6, 2021, dep. 2022, this Court,on request of the extradite, annulled the judgment issued by the Capitoline Court, which had granted the request for extradition made by the government of the United States against CMD, referring to another section of the same Court for new judgment of the extradition request, which would take into account the principles expressed in the rescindent court about the failure to inform the State of citizenship (Romania) of the submission of the extradition request by the United States of America, in conjunction with the information about the possible concurrent pendency of proceedings in Romania against the applicant.

This Supreme Court also censured the contested decision on the subject of failure to timely verify the extradite's health condition, potentially compromised by the transfer procedure and the U.S. detention itself. The expert's report ordered on the subject by the territorial court had in fact not been discussed in cross-examination with the presence of the expert, so that the parties had not been able to proceed to examine the expert also in order to submit informative and technical-scientific questions to him.

It remained absorbed by the annulment decision the fifth ground of appeal spent on the subject of inhuman and degrading treatment, posed by the defense with reference to the lack of real assurances on the practicability of therapeutic treatments appropriate to the pathologies suffered by the appellant in the prison regime, moreover, disregarding the penitentiary where he would have been imprisoned, the modalities of the detention conditions and the practicability in loco of suitable and adequate therapies.

1.1. By judgment of February 14, 2022, the Territorial Court hearing the case on remand, having informed (through the Ministry of Justice) the EU country of citizenship about the pendency of the extradition procedure, having heard in cross-examination the previously appointed expert, who provided the parties and the College with indications about the pathological conditions of the requested subject and (only very generically) the possibility of dealing with and containing such pathologies in the intranurary U.S. environment, issued a new judgment in favor of the requested extradition against the applicant, not recognizing the hostile condition set forth in Art. 705(2)(ca) of the Code of Criminal Procedure. The court subordinated the transfer to the United States to the condition that adequate assistance from qualified medical personnel for psychological support and support be ensured -during the trip.

2. The requested person, through his defense counsel, appealed against the said judgment, citing as grounds for appeal the violations of criminal law, non-compliance with procedural law and exizial flaws in the statement of reasons (art. 606, paragraph 1, lett. b, c and e, Code of Criminal Procedure) indicated below, within the limits of what is provided by art. 173, paragraph 1, disp. att., Code of Criminal Procedure).

2.1. The first ground of appeal censures the judgment under appeal, denouncing the violation of Articles 18, 19, 21 TFEU, 6 ECHR and 627, paragraph 3, of the Code of Criminal Procedure, in addition to the exizial flaws in the reasoning, since the territorial Court did not provide the clarifications requested by the country of citizenship (through ministerial correspondence) regarding the concrete peculiarities of the case, thus effectively preventing the state of citizenship from making its own determinations on the basis of the necessary information. Moreover, the Territorial Court did not at all inform the State of nationality of the possibility of the extradited person to participate in the concurrent trial in Romania, thus also violating the principles indicated in Article 6 ECHR, as well as the precise indication contained in the rescinding judgment issued by this Court.

2.2. With the second plea, the appellant again alleges violation of the procedural law (art. 705, paragraph 2, lett. c bis, 627, paragraph 3, It. criminal procedure code) in addition to defects in the exhilarating motivation, since the Court did not offer any answer regarding the concrete risk to the extradite's health in the event of his surrender. In reference to the actual current health conditions of the extradite, in fact, the expert examined limited himself to the observation of the patient and the examination of the dated diagnostic documentation, while the actual conditions of the U.S. detention (the penitentiary where the extradite will have to serve the sanction imposed and under what treatment conditions has not even been indicated) and transportation remain unknown at present.

2.3. violation of the criminal law, since the territorial court did not offer any answer regarding the inhuman or degrading treatment to which the extradite would be subjected in the United States, as neither the destination penitentiary nor the actual conditions of detention are known (reiterates).


1. The grounds of appeal are well-founded.

1.1. The State of citizenship (Romania) -informed by the Italian Ministry of Justice of the extradition request coming from a non-EU country (USA) and therefore put in a position to exercise the faculty of requesting the surrender (with preference on extradition to the non-EU country) of its citizen with MAE- responded to the Ministry of Justice with a note dated March 3, 2022, in which it requested clarifications defined as necessary in order to determine itself in the option offered by the EU legislation. The Capitol Court of Appeals, informed by the Ministry of Justice of the request for information coming from the state of citizenship, did not provide the requested information, thus effectively interrupting the dialogue between states of the Union, with the effect of preventing the state of citizenship from expressing its will on the basis of a complete set of information.

Thus, both a violation of the provisions of Paragraph 3 of Article 627 of the Code of Procedure and a violation of the provisions of Articles 18 and 21 of the TFEU, as interpreted by the European Court of Justice in I Petruhhin, Pisciotti, and BY, have been determined, which must be remedied on remand by providing the State of nationality with all the information it needs to guide its jurisdictional faculties.

1.2. Equally well-founded are the second and third grounds of appeal.

Neither the requesting state nor the appointed expert (who could not have been informed on the point) were able to offer the necessary information about the existing medical facilities at the destination penitentiary institutions, their free accessibility and effectiveness. The Court of Appeals could not limit itself to stating on the point (moreover, on the basis of a notorious implication that is not universally shared) that, in the requesting country, health care facilities are adequate to meet the therapeutic needs of the requested person, but it had to inquire about the prison institution of likely destination and the health care facilities (accessible to the patient not covered by insurance) with which it is equipped in order to express funditus an informed assessment. Such information was entirely lacking; therefore, it was not possible to express causa cognita an assessment of the adequacy of the health care facilities that the requesting state can offer the extradited person in inframuratorial detention.

2. The Court of Referral will take care, on the one hand, to provide the State of nationality with all the necessary information requested and will, in turn, request from the extradition requesting State all the necessary information (prison facility of immediate and final destination, health care facilities offered by such facilities and accessible to the patient not covered by private health insurance, practicability of adequate treatment with respect to the diseases currently suffered by the extradite) capable of averting in concrete terms the danger of serious damage to the health of the requested person.

for this reasons

annuls the appealed judgment ordering a new judgment to another section of the Court of Appeal of Rome. Sends to the Clerk's Office for the fulfilments of Article 203 disp. att. c.p.p.
Decided in Rome, in chambers of July 8, 2022.