Extradition and Flight Risk: The Value of Reasoning in Cass. pen. no. 16342/2025

With ruling no. 16342, filed on April 29, 2025, the Sixth Section of the Court of Cassation addresses a highly topical issue for operators in international criminal law: the necessity of effective reasoning regarding the periculum libertatis (danger of flight) when validating the arrest of an individual requested for extradition. The occasion arises from the case involving R. L. P., arrested in Sardinia on a foreign warrant and immediately subjected to pre-trial detention.

The Facts and Procedural History

Following the arrest carried out by the judicial police, the Court of Appeal – Sassari branch – validated the detention order, imposing pre-trial custody. The defense appealed the measure before the Court of Cassation, alleging a radical lack of reasoning concerning the flight risk, a mandatory requirement under Articles 274 and 275 of the Code of Criminal Procedure. The Supreme Court upheld the appeal, annulling the order without referral and ordering the immediate release of the extraditee.

The Ruling and Its Meaning

In matters of extradition to a foreign state, the annulment, due to a lack of reasoning on the flight risk, of the Court of Appeal's order validating the arrest and simultaneously applying pre-trial detention in prison leads to the immediate release of the person sought for handover and must be pronounced without referral. It is not possible to hypothesize a continued restriction of personal liberty based on the original invalidated order, pending a not-permitted supplementary reasoning in the rescissory phase, without prejudice to the possibility for the trial judge to issue a new precautionary measure amended from the defect that led to the annulment.

Comment: The Court reiterates a principle of guarantee: personal liberty cannot be curtailed in the absence of specific and current reasoning on the flight risk. A "posthumous reasoning" in the rescissory phase is not permitted; if the original order is flawed, it must be overturned, and the individual must be released. The judge may, if necessary, issue a new precautionary measure, but only after having remedied the motivational defect with precise arguments pertinent to the specific case.

Reasons for the Decision and Legal Framework

The Court of Cassation refers to:

• Articles 714 and 715 of the Code of Criminal Procedure, which govern extradition procedures;
• Article 274, letter b) of the Code of Criminal Procedure, where the flight risk is an essential prerequisite for precautionary measures;
• Article 309, paragraph 9, of the Code of Criminal Procedure, which prohibits motivational integrations in the appeal phase;
• Consistent case law (Cass. nn. 18076/2012, 25986/2010) and the overcoming of conflicting rulings.

The Court observes that, in the absence of reasoning, an illegitimate restriction of personal liberty, protected by Articles 13 of the Constitution and 5 of the ECHR, would occur. Any restriction must be based on "concrete and current" arguments, not on boilerplate phrases or generic presumptions linked solely to the foreign request.

Operational Implications for Defense and Prosecution

For defense attorneys, the ruling represents an effective tool to obtain the client's release when the reasoning on the flight risk is merely apparent. It will be necessary to:

• verify precisely that the Court of Appeal indicates factual elements (roots in the territory, previous escape attempts, financial resources, etc.);
• insist on the impossibility of "curing" a radical motivational defect in the Court of Cassation;
• remind the trial judge that, to issue a new order, they must rely on supervening or unconsidered facts, avoiding the mere repetition of abstract formulas.

On the prosecution's side, the decision requires greater accuracy: during the validation phase, all elements that can support the prognosis of flight must be collected and presented to the judge, to avoid annulments and releases that would prejudice the handover to the requesting foreign state.

Conclusions

Ruling 16342/2025 confirms the centrality of reasoning in precautionary measures applied in extradition proceedings. The principle of immediate release, in case of annulment for lack of reasoning, protects the individual from arbitrary detention and calls on operators to rigorously respect constitutional and conventional guarantees. A decision that, in addition to resolving a jurisprudential conflict, serves as a warning: personal liberty is the supreme good to be protected, and any sacrifice of this good requires serious, concrete, and verifiable reasoning.