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Guarantee of non extradition: Interpol Nortice issuing State has to be summoned (Cons,. Stato, Nov,. 2023)

23 November 2022, Administrative Appellate Court

Italian legal system does not know an anticipated protection against extradition on political basis, through an assurance of non extradition given by Italian government: the plaintiff requested such a guarantee, based on his right, as an EU citizen, to free movement within the member states of the European Union,

Italian Ministry of Justice did not answer to such request, and the silence of the administration was appealed to the First Instance Administrative Court in order to ascertain the illegitimacy of the silence of the requested administration.

Other than the first instance court, the administrative appellate court did not exclude in principle the chance of a guarnateee of no extradition, but refused the appeal because the issuing State of the red Noticehadnt been summoned in the proceeding.

(non official machine translation) 

Council of State
sitting as a court of law (Section Three)

published Nov 23, 2022 decision NO. 10309/2022


on the appeal No. 5976 of 2022, brought by Mr. -OMISSIS-, represented and defended by lawyer Prof. Carlo Fiorio, with a digital address **; 


the Ministry of Justice, in the person of the Minister pro tempore, represented and defended ex lege by the Attorney General's Office of the State, with a digital address **  and a physical address in Rome, via dei Portoghesi, no. 12; for the reformof the judgment of the Regional Administrative Court for Lazio, Seat of Rome (Section One), No. -OMISSIS-.

Having seen the appeal and its annexes;

Having seen the affidavit of the Ministry of Justice;Having seen all the acts of the case;

Relator in the council chamber on November 3, 2022, Cons. Umberto Maiello and noted the presence, pursuant to law, of the parties' attorneys as per the minutes of the hearing;

Held and considered in fact and law as follows.


1. On February 8, 2021, the appellant, a French citizen, filed an application with the Ministry of Justice aimed at obtaining, as he has already obtained in France, Poland, and Switzerland, a declaration of explicit 'guarantee of non-extradition' to the U.S., pursuant to Articles 697 and 698 of the Code of Criminal Procedure, in the event that it was requested by the competent U.S. authorities.

1.1. The exigencies underlying the aforementioned request are related, in the party's perspective, to the pendency of a criminal proceeding instituted in 1977 by the State of California for the crime of sexual acts with a minor and the legitimacy of which the appellant disputes by reason of an agreement (pleabargain) as a result of which he would have already served his full sentence at the California correctional institution of -OMISSIS-.

1.2 And, in fact, in 2005, the U.S. authorities (in this case, the U.S. Attorney's Office in Los Angeles, California) requested Interpol to issue a RedNotice (so-called red notice) registered under No. -OMISSIS-, by reason of which the arrest of the appellant would have been justifiable and lawful even in a country "third" to the extradition order.

2. Faced with the Ministry's failure to consider the request, the appellant brought the first instance appeal before the TAR per il Lazio, Sede di Roma, which, however, in Judgment No. -OMISSIS- declared it inadmissible.

2.1. The TAR has, indeed, noted the "non-existence of an obligation to provide on the part of the Ministry of Justice on a preventive basis, depending on the mere possibility of the submission of a request for extradition or a request for provisional arrest, instances that, conversely, give rise to the obligation of activation by the intimated Ministry" since it is "(...) an instance not provided for by the legal system as suitable to initiate a typical procedure."

2.1. The Regional Administrative Court also disregarded the request for a preliminary reference to the Court of Justice of the European Union, since, according to it, in the absence of extradition requests, "the appellant is free to move on the soil of the European Union."

3. The appellant requested that - in reforming the judgment of the TAR - the appeal at first instance be upheld, to this end articulating the following grounds of appeal:

(a) the ruling of inadmissibility would be erroneous, first of all, as it was pronounced in violation of Articles 35 and 34 of the code of proc. proc. amm, given the appellant's clear and current interest in the ruling and the fact that there were no reasons preventing a decision on the merits, reasons that were not even stated in the appealed judgment;

b) contrary to the opinion of the Regional Administrative Court, there would be an obligation to provide, since it could not be identified, as the Regional Administrative Court erroneously affirmed, as a measure in response to the request submitted by the appellant in the "Information Report of the Ministry of Justice Prot. no. m_dg.-OMISSIS-.", filed in court by the Attorney General's Office and addressed to it as a mere report for internal use and for defense purposes only.

The Regional Administrative Tribunal would not, therefore, have noticed the permanence of the silence, the Ministry having to respond in its proper forum through the initiation of a proceeding, the consequent instruction and the consistent definition with an express and reasoned measure within the terms provided by law.

Nor could the prospected inadmissibility of the request be of any relevance here, with respect to the obligation to provide in the aforementioned sense, as it was submitted "in advance" in the absence of a request for extradition, since these are profiles of merit or procedural inadmissibility of the request which, if anything, should have been valued in the dutiful concluding measure of the procedure, pursuant to Article 2 of Law No. 241 of 1990;

c) the Regional Administrative Court would not have adequately considered that the application was filed as a precautionary measure insofar as the protection here invoked, if it were to be deferred to the time of the appellant's entry into the territory of the Italian State, or to the time of the request for extraction by the U.S. authorities, could prove to be late and useless with respect to an arrest or a potential personal precautionary measure that would deprive him of his personal freedom, thus causing irreparable prejudice;

(d) the appealed judgment should also be reformed insofar as, by failing to acknowledge the concrete risk of the possibility of immediate arrest, it disregarded the request for a preliminary reference to the Court of Justice.And, indeed, the inaction of the requested administration would impinge on the right of the appellant, a European citizen, to move within the Union, as solemnly guaranteed by Articles 20 and 21 of the Treaty on the Functioning of the European Union and Article 45 of the Charter of Fundamental Rights of the European Union, also because the prospective compression of this right would be disproportionate, as it would not satisfy any of the grounds for restriction set out in Directive 2004/38/EC of April 29, 2004, Article 22 of which provides that an EU citizen's freedom of movement and residence may be restricted only on "grounds of public policy, public security or public health" further specifying that "the mere existence of criminal convictions does not automatically justify the adoption of such measures. The personal conduct must pose a real, present and sufficiently serious threat to affect a fundamental interest of society."

(e) in a different respect, the same head of the decision would be unlawful in that the fact that the person concerned has no 'preventive' procedural remedy to challenge such a serious obstacle to his freedom of movement would be such as to constitute an equally blatant violation of his right to an effective remedy.

4. The Ministry of Justice resists in the suit.

5. The parties in subsequent briefs reiterated their defenses.

5.1. At the hearing on November 3, 2022, the appeal was retained for decision.

6. It is the opinion of the Section that the appeal is unfounded and, therefore, must be dismissed, with consequent confirmation of the operative part of the judgment of the Regional Administrative Court, albeit with different grounds.

7. It is decisive to consider that the appeal at first instance is inadmissible due to the failure to establish the summon with respect to the United States of America, which, in its capacity as a opposite party, should have been summoned to the proceedings. The Board has preliminarily informed the parties of this, pursuant to and for the purposes of Article 73 of the Code of Administrative Procedure.

7.1. In the appellant's view, the system should provide an 'advance' remedy of protection for the European citizen, with respect to the formalization of a request for the activation, against him, of the so-called passive extradition procedure.This prospectus aims to give evidence to the possible compression of the right to free movement of a European citizen referred to in Articles 20(2)(a) and 21(1) of the TFEU as a result of and as a consequence of the publication in the Interpol database of a so-called 'red notice'.

7.2. In order to promote mutual assistance among the criminal police authorities of the member countries, the Interpol system provides for a series of notices published for specific purposes and color-coded.Among them, red search notices are published at the request of a national central bureau or international body with authority to investigate and prosecute crimes, for the purpose of requesting the location of a wanted person, his or her detention, arrest or restriction of his or her movements for the purpose of extradition, surrender or similar action consistent with law.In other words, under the Interpol regulation, if a person subject to a red alert is located in an Interpol member state, that state must, in particular, either provisionally arrest the wanted person or control or restrict his or her movements, provided that such measures are provided for in its national law and applicable international agreements.

7.3. It is, therefore, for the reasons outlined herein that today's appellant intended to urge a form of preventive protection in order to render irrelevant the effects resulting from the publication, against him, of a red notice, at the initiative of a foreign state, in this case the United States of America.

7.4. Well, the Court observes that - just as the appellant's need to have protection 'in advance' of the proceedings that could lead to restrictive measures of his personal freedom following his entry into Italian territory has been envisaged by the appellant - the foreign state's need to be able to defend itself in the lawsuit, brought in order to produce restrictive effects following the request of the same foreign state (which can only aim at having the cogent conformative value of the red notice reaffirmed in the part in which, as transposed in the national system, contemplates a power of initiative of the judicial police released, in the pre-cautionary phase, from the prior request of the Minister or from the same jurisdictional intervention, not requiring in subiecta materia - on account of the qualified circumstances of urgency that govern the aforementioned exceptional case - an ex ante intervention of the judicial authority or of the Minister, who only subsequently would be involved in the procedure of validation of the preventive arrest, pursuant to art. 716(2) of the Code of Criminal Procedure).

7.5. The same anticipated mechanism of protection placed at the basis of the claim brought before the court cannot, therefore, but replicate the procedural relationship that, in parallel, is delineated with the activation of the ordinary so-called passive extradition procedure, outlined in articles 697 ff. of the Code of Criminal Procedure, and which in its physiological development begins with a specific request from the foreign state concerned (art. 700 c.p.p.), so that the same requesting state (which, pursuant to art. 702 c.p.p., may intervene in the jurisdictional phase) is in an equal and opposite position to the extradite, being the holder of a legally qualified and differentiated interest with respect to the typical effects of the extradition decree (see in this sense Cons. St. Cons, Sec. IV, June 5, 2022, no. 3316), as a result of the preceptive value of the extradition treaty in force between the U.S.A. and the Italian Republic, signed on October 13, 1983 and ratified by Italy with l. May 26, 1984, no. 225.7.6 Therefore, Article 117, paragraph 1, of the Code of the Administrative Process, for which "the appeal against the silence is proposed, even without prior warning, with a document notified to the administration and to at least one other party within the time limit referred to in Article 31, paragraph 2," is relevant.In the present case, the counterinterested party is the foreign state that promoted the publication of the red notice, the effects of which it would like to make irrelevant, so that the failure to notify the appeal of first instance requires it to be declared inadmissible (see Cons. St., Sec. IV, Dec. 6, 2013, no. 5825).

8. Finally, and in a different respect, considering also the solicitations coming from the appellant to the activation of the so-called EU preliminary ruling pursuant to Article 267 of the TFEU with a request to refer to the CJEU the verification of compatibility of the national legislation on extradition with European Union law, the College must additionally note how the RedNotice - of which, therefore, the continuing effectiveness as well as the aptitude to generate restrictive effects on personal liberty is not proven - nor the same favorable jurisdictional measures that were allegedly issued by the judicial authorities of other European countries and which, according to the appellant, would have established the violation of European Union law due to the affirmed execution of the sentence imposed and on the basis of which he urges that even in Italy it be ascertained that there should be no extradition.

8.1. On the other hand, it appears that even at the administrative level such documentation was not put to the Ministry's evaluation, which highlights how in the basis of the original petition not even the deductions that Italian law and national practice would give rise to an inadequate system of protection, compared to that referable to other European Union states, had been adequately referred to and documented.It is relevant here that there was no circumstantial representation by the appellant of the facts that should lead to a preliminary deliberation of the so-called EU preliminary ruling.

9. In conclusion, the appeal should be dismissed.The costs of the present instance - due to the novelty of the issue - should be offset.


The Consiglio di Stato in sede giurisdizionale (Third Chamber), ruling on appeal No. 5976 of 2022, declares the appeal at first instance inadmissible and confirms the operative part of the judgment under appeal, on the basis of a different reasoning.Costs of the present instance set off.Order that this judgment be executed by the administrative authority.

Considering that the requirements of Article 52 (1) and (2) of Legislative Decree No. 196 of June 30, 2003, and Article 10 of Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016, for the protection of the rights or dignity of the party concerned, directs the Secretariat to proceed exclusively to the obscuration of the appellant's personal details.Thus decided in Rome in the council chamber on November 3, 2022 with the intervention of the magistrates:Luigi Maruotti, PresidentGiovanni Pescatore, CouncilorUmberto Maiello, Councilor, ExtenderAntonio Massimo Marra, CouncilorFabrizio Di Rubbo, Councilor    THE EXTENDER THE PRESIDENTUmberto Maiello Luigi Maruotti          THE SECRETARY