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Mandatory credit of pretrial detention in extradition proceeding (Cass., 22257/20)

23 July 2020, Cassazione penale

The credit for the pretrial detention suffered in an extradition proceeding as a precautionary measure constitutes a fundamental principle of Italian legal system and constituites a fundamental right of the person, the violation of which bans extradition.

The principle of necessary deduction of the preconviction detention in the extradition proceeding in Italy as requested state is confirmed by the case law of Italian Supreme Court, which ruled that extradition to countries where the application of the principle of mandatory deduction of time served in pretrial detention abroad in the extradition proceeding itself is not guaranteed is granted only for a duration corresponding to the remainder of the conviction.

 (unoffical translation, original decision here)



decision n. 22257/2020

hearing 18/06/2020 filed 23/07/2020

 Composed of the Honorable Justices:

Dr. COSTANZO Angelo - President -

Dr. DI STEFANO Pierluigi - Councilor -

Dott. APRILE Ercole - Councilor -

Dr. ROSATI Martino - Councilor -

Dr. PATERNO' RADDUSA B. - rel. Councilor -

pronounced the following:


On the appeal brought by:

B.B., born in (OMISSIS);

against the judgment of 11/10/2019 of the Court of Appeal of Turin;

Having regard to the acts, the contested order and the appeal;

having heard the report made by Counselor Dr. Paternò Raddusa;

read the requests of the Public Prosecutor, in the person of Deputy Prosecutor General Dr. Angelillis Ciro, who concluded by requesting that the appeal be declared inadmissible due to supervening lack of interest.

Course of the proceedings.

1. With the judgment in the present case, the Court of Appeal of Turin granted the request for extradition made by the Republic of Albania against B.B. in order to proceed with the execution of the sentence of imprisonment for four months imposed on the aforementioned by the Court of Durrës for the crime of theft.

2. In the appeal, brought in the interest of the extradite by the defense counsel, he complains of violation of Art. 705 Code of Criminal Procedure, paragraph 2, lett. c), the Court having erred in considering that the risk feared by the defense did not exist with regard to the possible subjection of B. to persecutory acts or treatment that constitutes a violation of fundamental personal rights: and this both because of the concerns expressed by the appellant with respect to his personal safety due to a violent assault previously suffered in the territory of the requesting state; and because of the well-known critical nature of the Albanian prison system.

The defense also points out that, at the date of the filing of the appeal, in view of the pre-sentence in execution of the measure of custody in prison applied during the extradition procedure, little more than twenty days remained to be served with respect to the sentence to be executed.

3. The General Prosecutor's Office, in a deed dated 3/06/2020, requested a declaration that the appeal was inadmissible due to a supervening lack of interest, the appellant having fully expiated on remand the sentence related to the conviction that is the subject of the requested extradition.

Reasons for the decision

1. The appealed judgment deserves to be overruled for the reasons specified below.

2. The examination of the documents transmitted to the Court allows us to confirm, in line with what is highlighted in the appeal, that the appellant, as of July 18, 2019, remained in prison under the precautionary measure applied as a function of the surrender and that, as also punctually reported by the same Territorial Court, on November 17, 2019 the full expiation of the sentence occurred in view of the pre-sentence during the same extradition procedure, resulting in the release of the extradite.

2. This factual circumstance assumes diriment value in the definition of the present appeal: the intervening and complete expiation, in the form of pre-trial detention, of the prison sentence whose execution constitutes the purpose of the request for extradition, deprives, in fact, of relevance the issues addressed in the contested judgment and in the grounds of appeal.

In fact, according to what this Court has observed, surrender for extradition purposes cannot be given when the person concerned has already served his entire sentence in Italy, for the purposes and within the scope of the relevant procedure.

In fact, the release of the custody suffered as a precautionary measure constitutes a fundamental principle of our legal system (Articles 137 and 138 of the Criminal Code), such as to originate a fundamental right of the person, the violation of which, if any, precludes the granting of the extraditional request under Article 698 of the Criminal Code, para. 1, u.p., (Sect. 6, No. 46451 of 17/09/2004, Rv. 233519; Sect. 6, No. 751 of 12/12/2006, Rv. 235898; Sect. 6, No. 1279 of 11/28/2013, dep. 2014, Rv. 257749; Sect. 6, No. 3075 of 11/22/2017, dep. 2018, n. m.).

Based on the same premises, the rule preventing the granting of the request was also identified in Article 705, paragraph 2(b) (Sec. 6, No. 24666 of 09/06/2006, Rv. 234737).

Moreover, the force attributed to the principle of necessary deduction of the pre-sentence is also inferred from the case law which, in the case of countries where the application of the principle itself is not guaranteed, allows extradition only with specific regard to execution for a duration corresponding to the remainder of the sentence (Sec. 6, no. 41302 of 08/10/2009, Catrin, Rv. 245032; Sec. 6, no. 20148 of 11/05/2010, Farris, Rv. 247386).

3.Consistently, the conditions for granting the extradition request referred to in the contested judgment do not exist. The latter, therefore, must be reformed, with a device enunciating the conclusion reached.

Considering the conclusions formalized by the Attorney General's Office in the written indictment in the record, it also does not seem superfluous to point out that the factual circumstance found leaves the appellant's interest in the definition of the present appeal unaffected, in light of the tenor of the contested decision, which granted the surrender and which must instead be annulled, thus causing the useful title to an extraction that is no longer legitimate, otherwise destined to be consolidated, to cease to exist.


In reforming the judgment under appeal, declares that the conditions for granting the request for extradition do not exist, since the appellant has fully served his sentence in Italy, in pre-trial detention.

Sends to the Clerk's Office for the fulfillments referred to in Article 203 disp. att. c.p.p..

Thus decided in Rome, June 18, 2020.

Filed in the Registry on July 23, 2020.