Extradition and Precautionary Measures: The Court of Cassation Clarifies with Judgment No. 16997/2025

In the complex landscape of international and criminal procedural law, the management of precautionary measures pending extradition proceedings represents a crucial point. The personal liberty of the individual, often subjected to severe restrictions, confronts the needs for cooperation between States and the necessity to ensure the effectiveness of extradition requests. In this context, the Court of Cassation, with Judgment No. 16997 of February 13, 2025 (filed on May 7, 2025), has offered a significant clarification, precisely outlining the limits and opportunities for judicial intervention on coercive measures.

The Context of Extradition and Precautionary Measures

Extradition is the legal mechanism through which one State hands over a person, investigated or convicted, to another State that has requested them for criminal proceedings or to serve a sentence. During extradition proceedings, to prevent the risk of flight and ensure surrender, it is customary to apply personal precautionary measures, such as detention. While these measures are instrumental to the main proceeding, they profoundly affect the fundamental rights of the individual, making rigorous judicial oversight of their legitimacy and persistence indispensable.

The specific case that led to the Cassation ruling involved the defendant F. B., for whom the Court of Appeal of Brescia had declared inadmissible a request for revocation or substitution of the precautionary measure. The central issue concerned the possibility of maintaining judicial oversight of the precautionary measure once the extradition proceeding had reached a favorable decision.

Judgment No. 16997/2025: A Turning Point

The Court of Cassation, presided over by Dr. R. M. and with Dr. T. D. as rapporteur, addressed the delicate issue of the relationship between the conclusion of the extradition proceeding and the persistence of control over precautionary measures. The Supreme Court recognized the importance of balancing the need for swiftness in extradition proceedings with the protection of personal liberty. The principle affirmed by the judgment is of fundamental importance:

The conclusion of the extradition proceeding with a favorable decision does not preclude judicial review of the request for revocation or substitution of the coercive measure applied within the incidental proceeding "de libertate", provided that the request is based on grounds relating to the supervening ineffectiveness of the measure or the absence of precautionary needs related to the risk of flight, and the person has not already been surrendered to the requesting State, as long as a definitive decision has not been made on the matter in the main extradition proceeding, which would create an intra-procedural preclusion on the point.

This maxim clarifies a crucial aspect: the positive conclusion of the extradition proceeding does not automatically "seal" the possibility of reviewing the precautionary measure. However, this openness is not unlimited. Judicial review is admissible only under specific conditions:

• The request for revocation or substitution must be based on new or supervening grounds, such as the ineffectiveness of the measure itself or the absence of precautionary needs (primarily, the risk of flight). It is therefore not an opportunity to re-propose arguments already examined on the merits of the extradition.
• The person must not have already been surrendered to the requesting State. This is an obvious limit, as surrender ends Italian jurisdiction over the precautionary measure.
• Above all, a definitive decision in the main extradition proceeding that has already examined and ruled on the specific issue of the precautionary measure must not have been made. In such a case, an "intra-procedural preclusion" would occur, preventing a new examination.

In the specific case, the Court found a lack of interest in appealing on the part of F. B., as his request for revocation or substitution of the precautionary measure was based on the absence of conditions for granting the extradition request, an issue already settled in the main proceeding. This demonstrates how essential it is for the request for revocation or substitution to be based on new and specific elements, distinct from the grounds on the merits of the extradition already judged.

Legal References and Practical Implications

The judgment follows the line of Article 704 of the Code of Criminal Procedure, which governs precautionary measures in extradition proceedings. This article, along with the general principles of our legal system and the guarantees provided by the European Convention on Human Rights (ECHR) regarding personal liberty, forms the framework within which the Cassation's decision operates. The ruling reiterates the importance of judicial oversight as a bulwark for the protection of fundamental rights, even in contexts of international cooperation, but at the same time sets clear boundaries to prevent procedural abuses and ensure legal certainty.

Conclusions: The Importance of Strategic Defense

Judgment No. 16997/2025 of the Court of Cassation offers valuable guidance for all legal professionals. It underscores the need for careful and strategic defense in extradition proceedings, where each procedural phase has a direct impact on the individual's personal liberty. The possibility of requesting the revocation or substitution of precautionary measures, even after a favorable extradition decision, represents an important guarantee, but requires a precise assessment of the grounds on which to base such a request. It is crucial to distinguish between a new examination of precautionary needs and an attempt to re-discuss the merits of the extradition already definitively judged. For those facing these complex situations, the assistance of professionals experienced in criminal and international law is indispensable to navigate the nuances of case law and ensure the maximum protection of their rights.