Italy, Court of Cassation, 22 October 2020 30642/2020

Identification of the case

• Right to an effective remedy and to a fair trial (art. 47 CFREU)

• Articles 416 and 623 of the Criminal Code
• Articles 698 and 705 of the Criminal Procedural law
• Article 25 and 111 of the Constitution
• Bilateral treaties between Italy and the USA

• Article 47 Charter

Summary of the case

On 21 August 2019, the Grand Jury of Ohio's district court, based on the US Code, issued an international arrest warrant against Mr. xxx, investigated in a criminal proceeding in the USA. The Court of Appeal of Rome accepted the US government's extradition request, based on bilateral treaties between Italy and the USA. Mr. xxx took legal action before the Court of Appeal decision for six reasons. For the purposes of the project, two reasons are relevant. 1) Violation of Article 25 of the Italian Constitution (concerning the right to be judged by a competent judge), Article 6 ECHR and Article 47 of the Charter. More precisely, Mr. xxx claimed the American judge’s lack of jurisdiction because the crimes were committed in Italy and France by Italian citizens. 2) Violation of Articles 3 and 7 ECHR and the relevant national provisions (Articles 698 and 705 Criminal Procedural law) due to the underestimated health risks that Mr. xxx would face in an overcrowded Ohio prison during the Covid-19 pandemic.

• Civil judicial enforcement

Rejection of the claim and, consequently, confirmation on the Court of Appeal decision concerning the extradition request's acceptance.

Only the parts of the Court of Cassation's decision related to the two points mentioned above will be analysed.

1) The Court of Cassation considered that Italian law's fundamental principles are those of the Charter and the ECHR. Therefore, there was no indication of the alleged violation of Articles 6 ECHR and 47 of the Charter because, according to the related decisions of the Strasbourg Court: the law (and not the judicial power) has to organise the judicial system in a discretionary manner (see ECtHR, 5 October 2010, Dmd Group a.s. v. the Republic of Slovakia); the judge has to ensure impartiality (see ECtHR Court 7 August 1996, Ferrantelli e Santangelo v. Italy); and the judge does not have to be influenced by other state powers (see ECtHR Court, 26 August 2003, Filippini v. San Marino). On this basis, there was no lack of jurisdiction.

2) Based on the information given by the government authority requiring the extradition, the Court of Appeal's decision excluded that Mr. xxx, in case of extradition in the USA, could be subject to inhuman or degrading treatment according to Article 3 ECHR. More precisely, the government authority ensured that he would be assigned to prisons where there were no prisoners who had tested positive for Covid-19. However, any new prisoner would be tested and subject to isolation for 14 days with personal protection. Furthermore, all the prisoners and the prison staff had to use individual protection items, limiting their internal movement and social contact as much as possible. Thereby, there was no violation of Article 3 ECHR, and Mr. xxx's health was protected.

Role of the Charter and role of the general principles on enforcement

The Court of Cassation did not find a violation of Article 47 of the Charter because all the elements of the fair trial (also according to Article 6 ECHR) were respected and duly applied.

• Explicit reference to Art. 47, CFREU (right to an effective remedy and a fair trial)
• Right to a fair trial
• Right to a fair hearing by an independent and impartial tribunal previously established by law.

• Article 25 of the Italian Constitution: the right to be judged by a competent judge
• Art. 111 of the Italian Constitution: the right to have a fair trial

• Explicit reference to Art. 3 ECHR
• Explicit reference to Art. 6 ECHR
• Explicit reference to Art. 7 ECHR

Elements of judicial dialogue

• ECHR Court, 5 October 2010, Dmd Group a.s. v. Republic of Slovakia
• ECHR Court 7 August 1996, Ferrantelli e Santangelo v. Italy
• ECHR Court, 26 August 2003, Filippini v. San Marino

Additional notes on the decision

The case is new but quite interesting because the claim against the extradition request considers the health right related to Covid 19. Thereby, it is likely that the related considerations will influence similar case laws.