In brief. Extradition is the formal procedure by which one State surrenders a person found in its territory to another State, so that the requested person can be prosecuted or serve a custodial sentence. Italy operates a layered system: the European Arrest Warrant (EAW) applies between EU Member States, while traditional extradition under the Italian Code of Criminal Procedure (artt. 696-722 c.p.p.) and bilateral or multilateral treaties governs relations with non-EU jurisdictions such as the United Kingdom, the United States and the United Arab Emirates.

In brief

  • Extradition is the surrender of a person from one State to another for prosecution or to serve a sentence.
  • Within the EU, extradition has been replaced by the European Arrest Warrant (EAW) under Framework Decision 2002/584/JHA.
  • Outside the EU, Italy applies the rules of artt. 696-722 of the Italian Code of Criminal Procedure (c.p.p.) and bilateral treaties (e.g. Italy-USA 1983, Italy-UK 1873 plus the 1990 Council of Europe extradition framework).
  • Key defences are: lack of dual criminality, political offence exception, risk of inhuman treatment (art. 3 ECHR), death penalty without assurances, ne bis in idem, statute of limitations.
  • Italian passive extradition is a two-stage procedure: a judicial phase before the Court of Appeal, with a Supreme Court appeal, and an administrative phase before the Ministry of Justice.

What is extradition?

Extradition is the procedure, of mixed judicial and political-administrative nature, by which a State (the requested State) surrenders to another State (the requesting State) a person present in its territory so that the person may be prosecuted or serve a custodial sentence already imposed. Where an international convention applies, the convention governs; in the absence of a convention, the requested State applies its domestic rules — in Italy, artt. 696 and following of the c.p.p. (principle of subsidiarity under art. 696 c.p.p.).

  • Art. 13 of the Italian Constitution — reservation of law in matters of personal liberty, with a ban on extradition for political offences (genocide excepted)
  • Art. 26 of the Italian Constitution — extradition of Italian citizens only if expressly provided for in international conventions, and never for political offences
  • Art. 10 of the Italian Constitution — ban on extradition of foreigners for political offences
  • Artt. 696-722 c.p.p. — domestic rules on passive and active extradition
  • European Convention on Extradition (Paris, 13 December 1957), ratified by Italy with Law 300/1963
  • Framework Decision 2002/584/JHA on the EAW, implemented in Italy by Law 22 April 2005, no. 69 (subsequently amended by D.Lgs. 10/2021)
  • Bilateral treaties with non-EU States: e.g. Italy-USA Extradition Treaty 1983 (in force since 1984), Italy-UK arrangements under the 1957 Council of Europe Convention, Italy-UAE Extradition Treaty 2015

Extradition vs European Arrest Warrant

The two instruments coexist but apply in different theatres.

Within the EU, the European Arrest Warrant (EAW) replaces traditional extradition. Introduced by Framework Decision 2002/584/JHA and implemented in Italy by Law 69/2005, the EAW is based on the principle of mutual recognition: a judicial authority of one Member State issues the warrant and a judicial authority of another Member State executes it, with no political phase and within strict deadlines (60 days, extendable to 90, art. 17 of the Framework Decision). Surrender of nationals is the rule, not the exception, subject to safeguards (return for sentence execution, etc.).

With non-EU States, traditional extradition continues to apply. The procedure is bifurcated (judicial + administrative), the political phase is preserved and grounds for refusal include broader categories (political offence, military offence, fiscal offence in some treaties).

For a deep dive into the EU instrument, see the dedicated guide to the European Arrest Warrant.

Active vs passive extradition

Active extradition (artt. 720-722 c.p.p.) is initiated by Italy: the Minister of Justice, on the basis of an Italian arrest warrant or enforceable judgment, requests the surrender of a person located abroad. The procedure unfolds in the requested State and is governed by its law and by applicable treaties. ILA assists Italian prosecutors and private clients in active extradition requests, including coordination with foreign defence counsel.

Passive extradition (artt. 697-719 c.p.p.) is initiated by a foreign State asking Italy to surrender a person found in Italian territory. The procedure is bifurcated:

  • a judicial phase before the competent Court of Appeal, which decides on the existence of the conditions for extradition (artt. 703-708 c.p.p.); the judgment is appealable to the Court of Cassation;
  • an administrative phase before the Minister of Justice, who — if the judicial decision is favourable — has the final political discretion (art. 708 c.p.p.).

The Minister cannot grant extradition where the Court has ruled against; the Minister may, however, refuse extradition even after a favourable judgment, since the administrative phase retains margins of political discretion.

Grounds for refusal: the defences that work

Italian law and international conventions set out tight grounds on which extradition must or may be refused. These are the technical pillars of the defence.

Lack of dual criminality. The conduct must be a criminal offence under both Italian law and the law of the requesting State (art. 13 of the Italian Criminal Code; standard treaty clause). If the conduct is not punishable in Italy, extradition cannot be granted. This is the defence we routinely advance, for example, in cases involving offences of “insulting the State” or “tax breaches” criminalised abroad but not under Italian law.

Political offence exception. Art. 26 and art. 10 of the Italian Constitution and art. 698 c.p.p. ban extradition for political offences. Genocide is the constitutional exception. The notion of “political offence” is restrictively interpreted by case law, but the defence remains crucial in cases involving dissidents and political opponents of authoritarian regimes.

Death penalty. Where the requesting State foresees the death penalty for the offence, extradition is refused unless the State provides binding diplomatic assurances that the penalty will not be imposed or, if imposed, will not be executed (art. 698 paragraph 2 c.p.p.; constitutional case law). The Italian Constitutional Court (judgment 223/1996) ruled that the standard of assurances must be high.

Risk of inhuman or degrading treatment. Pursuant to art. 698 c.p.p. and art. 3 ECHR, extradition is refused if there are substantial grounds to believe the requested person will be subjected to torture, inhuman or degrading treatment, or to discrimination on grounds of race, religion, sex, nationality, language, political opinion or personal or social condition. This defence has acquired strong momentum in cases involving overcrowded prison systems and politically motivated prosecutions.

Ne bis in idem. If the requested person has already been finally judged in Italy or in a third State for the same conduct, extradition is barred (art. 705 c.p.p.; art. 50 EU Charter where applicable).

Statute of limitations. If the offence is time-barred under the law of either State, extradition is refused.

Extradition from the United Kingdom

The UK-Italy extradition relationship is built on the 1957 European Convention on Extradition (Paris) and, post-Brexit, on the EU-UK Trade and Cooperation Agreement of 24 December 2020, which introduced a surrender mechanism inspired by the EAW for relations between the UK and EU Member States.

The UK extradition framework is the Extradition Act 2003: Italian requests fall under Part 1 (Category 1, EU surrender) under the TCA mechanism, with hearings before Westminster Magistrates’ Court and appeals to the High Court. Defences under the Act include extraneous considerations (s. 13), human rights bars (s. 21), forum bar (s. 19B), passage of time, and proportionality. The UK authorities apply the Wozniak and Litwinczuk line on Italian prison conditions and the Aranyosi standard on art. 3 ECHR risks.

Extradition from the United States

Italy and the United States are bound by the Extradition Treaty signed in Rome on 13 October 1983, in force since 24 September 1984, and by the Italy-US Mutual Legal Assistance Treaty (MLAT).

Key features of the US framework:

  • Dual criminality is required for all offences (art. II of the Treaty).
  • Probable cause standard before US extradition courts.
  • Specialty rule (art. XV): the requested person cannot be tried for offences different from those for which extradition was granted.
  • The Treaty admits extradition of nationals (art. IV); neither State refuses on grounds of nationality.

US extradition hearings are conducted before federal magistrate judges. The judge does not decide guilt, only whether the treaty requirements are met. After certification, the Secretary of State retains discretion to surrender.

ILA acts alongside US co-counsel in extradition matters involving Italian fugitives in the United States and US persons sought by Italy. Liaison with the Office of International Affairs (DOJ-OIA) is a routine part of the work.

Extradition from the United Arab Emirates

The Italy-UAE Extradition Treaty was signed in Abu Dhabi on 16 September 2015 and ratified by Italy with Law 81/2017. The Treaty covers offences punishable by at least one year of imprisonment in both States and provides for the standard set of grounds for refusal: political offence, military offence, ne bis in idem, lack of dual criminality, risk of persecution.

The UAE legal framework adds layers that defence counsel must navigate: domestic UAE federal law on extradition (Federal Law 39/2006), the active role of the Dubai International Financial Centre (DIFC) courts for parallel civil matters, and the political-administrative weight of UAE practice. Coordination between ILA’s Italian team and our Dubai office is the operational backbone of these cases.

Interpol Red Notice as the trigger

In a high share of international extradition cases, the first concrete event is the notification — or the publication — of an Interpol Red Notice. The Red Notice is not an international arrest warrant; it is a request to locate and provisionally arrest a person pending an extradition request. Properly challenged before the Commission for the Control of Files (CCF) in Lyon, a Red Notice can be deleted, with cascade effects on the underlying extradition request. See our guide to the Interpol Red Notice for the full procedure.

How ILA handles extradition cases

The firm’s extradition practice is organised across three axes:

  1. Emergency response. From the first call (arrest, Red Notice notification, EAW execution) the firm activates the Italian-language defence team and the relevant correspondent in the country of presence. The first 96 hours are critical.
  2. Judicial defence. Pleadings before the Court of Appeal, oral hearings, drafting of memorials, appeal to the Court of Cassation. In passive extradition, our Italian team is the lead; in active extradition we coordinate the foreign counsel.
  3. Administrative and political phase. Memorials to the Minister of Justice, dialogue with the Ministry of Foreign Affairs, parallel actions before the European Court of Human Rights where the case warrants (interim measure under Rule 39).

For an in-depth treatment of the underlying doctrine and Italian case law, see also the work of our Founding Partner on extradition.

Case studies

(The cases described are illustrative examples of typical matters and do not refer to specific proceedings.)

Case 1 — Lack of dual criminality blocking extradition to a non-EU State. A non-EU State requested extradition of a person for “insulting state institutions” — a conduct not criminalised under Italian law. The Court of Appeal declared the obstacle and refused extradition. The Court of Cassation confirmed.

Case 2 — Death penalty assurances. Extradition request for a capital-eligible offence. Consistent with the bar on extradition for offences punishable by death (art. 698 c.p.p. and Constitutional Court judgment no. 223/1996), the declaration of extraditability was made conditional upon binding written diplomatic assurances that the death penalty would not be imposed or executed. Without such assurances, extradition was denied.

Case 3 — Red Notice plus EAW. Client notified of an Interpol Red Notice while travelling in a third country. The firm filed a CCF deletion request in Lyon and, in parallel, prepared the EAW defence in Italy. The Red Notice was deleted, the EAW proceedings closed without surrender.

FAQ

What is the difference between extradition and the European Arrest Warrant? The European Arrest Warrant (EAW) is the EU surrender mechanism between Member States, based on mutual recognition and without a political phase. Traditional extradition applies between Italy and non-EU States and includes a judicial phase plus a political-administrative phase before the Minister of Justice.

Can Italy extradite its own citizens? Only if extradition is expressly provided for in an international convention, and never for political offences (art. 26 of the Italian Constitution). The standard practice is that Italy does not extradite its own nationals to most non-EU States; surrender of nationals is the rule under the EAW.

Can Italy extradite to the United States? Yes, on the basis of the 1983 Italy-US Extradition Treaty. The Treaty requires dual criminality and respects the specialty rule. Italian citizens may also be extradited.

How long does a passive extradition procedure take? From a few months in unopposed cases to over a year where the matter is opposed, appealed to Cassation and includes a full ministerial phase.

Is a Red Notice an international arrest warrant? No. A Red Notice is a request from a national authority, processed through Interpol, to locate and provisionally arrest a person pending a formal extradition request. It can be challenged before the Commission for the Control of Files (CCF) in Lyon.

Contact the firm

If you or a person close to you has been notified of an arrest warrant, a Red Notice or an extradition request, contact the firm immediately. The first hours are decisive. Write to us through the Contact page or call our 24/7 line.

Video