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Unlawful pretrial extradition detention: compensation must consider suicide attempt (Cass. 50615/19)

3 December 2019, Cassazione penale

In assessing amount of compensation for unlawful pretrial extradition detention, under Italian law the court has to take into account the specifics of the case considering globally not only the duration of the pre-trial detention, but also, and not marginally, the personal and family consequences arising from the deprivation of liberty, and inter alia  - if present  - a surplus psychological suffering induced by previous persecution, hospitalization as consequence of the Interpol Red Notice arrest  and suicide attempt during Italian pretrial detention.

(unofficial machine translation)


Italian Supreme Court
Section IV Criminal Judgment Sec. 4 No. 50615 Year 2019


1. The Court of Appeals of Milan, by order rendered on February 20, 2019, granted the petition for redress for wrongful imprisonment filed on behalf of KM, a subject of Iranian nationality and affected by an international arrest warrant issued by the Tehran Court on June 3, 2009, which was followed by the arrest of the sunnominee, which was executed on August 6, 2016, validated on August 9 of the same year by the Court of Appeal of Milan and revoked the following August 11 (resulting in K's release from prison) following the recognition in his favor of political refugee status by the United Kingdom.

In granting the reparation petition, on the basis of the absence of wilful or grossly negligent behavior on K's part, the Milan Court held that the determination of the amunt of the compensation should move from the arithmetic criterion indicated by the Grand chamber  Judgment No. 24287/2001, based as known on the relationship between the maximum limit of compensation, as per Article 315, paragraph 2, cod.proc.pen., and the maximum duration of pre-trial detention, as per Article 304 cod.prioc.pen.

Given this criterion, the Court of Merit equitably awarded K a higher total sum of 3,000.00 euros (related to the 6 days of unlawful detention) for the moral, personal and family prejudices suffered, while the instant's hospitalization following his taking a massive dose of a drug was not considered worthy of assessment.

2. K appeals against the aforementioned order with Nicola Canestrini, lawyer, in a three-pronged appeal.

2.1. With the first, the deducer complains of a defect of motivation in relation to the quantification of the compensation: retracing the passages on the basis of which the reparation for unfair detention was also recognized in the case of restriction for extradition purposes, the appellant points out that in the present case the arithmetic criterion based on the U.S. ruling of 2001 cannot be applied in the case at hand, given that the maximum term of the restriction for extradition purposes (equal to one year and nine months, based on art. 714, para. 4, cod.proc.pen.) is much smaller than the maximum term of pre-trial detention, with the consequence that the daily amount due (resulting from the division of the maximum amount of 516,456.90 euros by the maximum term of detention) is far higher and must be computed at the rate of C 813.31 (instead of C 235.82) for each day of detention. It follows 2Court of Cassation - unofficial copy that the determination of compensation in favor of K was based on incorrect parameters and should certainly be reconsidered.

2.2. With the second plea, the appellant complains of a defect in the statement of reasons in relation to the failure to assess K's suicide attempt, made at the time of his arrest and resulting - it is stated in the appeal - from the psychological suffering induced by the persecution he was subjected to by the Iranian regime, which earned him political refugee status in Great Britain. On this point, the argumentative path followed by the Ambrosian court appears to be entirely deficient and deserving of reevaluation.

2.3. With the third ground of appeal, the deductee complains of violation of the law with reference to the ordered set-off of costs, even though the financial administration was totally unsuccessful.

3. In his written brief, the Attorney General at the Court of Cassation, considering the merits of the appeal, concluded by requesting that the contested order be annulled with reference.


1. The appeal is well founded, in the terms and for the reasons set out below.

The determination of compensation was requested as part of the restorative proceedings for wrongful imprisonment for extradition purposes.

Well then, the calculation of daily compensation constituted by the ratio between the maximum limit of the compensation referred to in Article 315, paragraph two, of the Code of Criminal Procedure, and the maximum term of pre-trial detention referred to in Article 303, paragraph four, letter c), expressed in days, multiplied by the period, also expressed in days, of unjust restriction suffered (Sez. U, Judgment No. 24287 of 09/05/2001, Min. Tesoro and Caridi, Rv. 218975), indeed constitutes a conventional criterion of general scope; but it is based on parameters and presuppositions quite different from those that are the subject of the restriction for extradition purposes to which the restorative request in question refers, given that the subjecting of the extradited person to a restriction of freedom has a nature and functions that cannot be superimposed on those of the personal precautionary measures adopted pursuant to articles 272 et seq. of the Code of Criminal Procedure.

This does not mean, however, that the daily compensation should be determined, in the case at hand, on a different basis of arithmetical calculation (i.e. transposing the criterion adopted by the SS.UU. to the provisions on the maximum duration of coercive measures in extradition proceedings); so that it cannot automatically be held that the daily quantum due in the case at hand should be determined by comparing the maximum amount of reparation (defined by art. 315, paragraph 2, cod.proc.pen, in 516,456.90 euros) to the maximum period of restriction referred to in Article 714, paragraph 4, cod.proc.pen. (equal to one year and nine months).

Consequently, in order to determine the quantum of compensation in the case of unjust detention for extradition purposes, the general principle, affirmed by the United Sections in the aforementioned Caridi ruling, remains valid, according to which the characteristic feature of the institution of reparation for unjust detention is that the liquidation of the indemnity must be carried out equitably.

The delicacy of the matter and the difficulties for the interested party to prove in its precise amount the injury suffered has led the legislator not to prescribe to the judge the adoption of rigid parameters of assessment, leaving him, on the contrary - it is understood, within the boundaries of reasonableness and consistency - wide freedom of appreciation of the circumstances of the concrete case."

Well, given the general equitable nature of compensation and given the conventional nature of the criterion established in the aforementioned apex judgment, there is nothing to prevent its extensive application even outside the perimeter constituted by the prejudice suffered in dependence of the application of restrictions on freedom not attributable to the coercive measures referred to in Articles 284 et seq. cod.proc.pen. (and also, therefore, to the hypothesis of precautionary measures adopted pursuant to articles 714 et seq. cod.proc.pen.); but keeping well in mind that an arithmetic criterion derived from provisions referring to application prerequisites that are quite different and infungible (as the Court of Merit did in the contested order, albeit supplementing in increase, albeit in modest terms, the aforementioned criterion) cannot automatically be transposed to the restriction for extradition purposes.

Then the appellant's complaint (expressed in the second plea) referring to the alleged irrelevance of the suicide attempt made by K at the time of his arrest certainly appears well-founded.

It is worth emphasizing, in the face of the scanty motivation given on this point by the Ambrosian Court, that it is the duty of the judge of reparation to measure himself with the specifics of the underlying case and to take globally into account not only the duration of the pre-trial detention, but also, and not marginally, the personal and family consequences arising from the deprivation of liberty (cf. ex multis Sez. 4, no. 40906 of 06/10/2009, Mazzarotto, Rv. 245369; Sez. 4, no. 18361 of 11/01/2019, Rv. 276259).

In the present case, the peculiarity of a condition of strong psychological distress of a person who, like the appellant, has had a restriction of freedom applied to him in foreign territory in dependence of his position as an opponent to the regime (as emerged on the basis of the subsequent recognition of refugee status), such as to lead him to a suicidal gesture, was not adequately valued in the motivation of the contested order: the voluntariness of that gesture, in particular, cannot count for the purpose of dismissing as irrelevant the causal referability of the restrictive measure found to be unjust with respect to K's decision to attempt suicide.

2. Therefore, the contested order should be annulled with referral to the Court of Appeal of Milan, limited to the determination of the allowance, for new judgment on the point. On that occasion, all elements affecting the determination of the quantum debeatur in favor of K will be re-evaluated (giving adequate reasons with regard to the proof of the causal link between these elements - including the suicide attempt at the time of the arrest - and the indemnifiable injuries) as well as the issue of the expenses regime in relation to the criterion of loss of earnings, which on remand should be related to the overall outcome of the trial (cf. Sec. 3, Judgment No. 20904 of 11/01/2017, Ministry of Economy and Finance and others, Rv. 270195).


annuls the contested order limited to the extent of the compensation due and refers for new judgment on the point to the Court of Appeal of Milan.

Thus decided in Rome, December 3, 2019.