FPC, 17.10.2025, RR.2025.126, RP.2025.49
Facts
Italy has requested the extradition of a Moldovan national, A., from Switzerland to serve the remainder of a prison sentence (2 years, 11 months, and 25 days) for aiding illegal immigration. The conviction was handed down by the Court of Trieste, upheld on appeal, and became final following the dismissal of an appeal to the Court of Cassation.
Arrested in the canton of Aargau, A. opposed his extradition. The Federal Office of Justice (FOJ) nevertheless granted the extradition on July 17, 2025. A. appealed this decision to the Federal Criminal Court (FPC), requesting its annulment and the granting of legal aid.
Legal Principles
Extradition between Switzerland and Italy is governed primarily by the European Convention on Extradition (ECE) and its protocols, as well as by the Schengen agreements. The Federal Act on International Mutual Assistance in Criminal Matters (IMAC) applies on a subsidiary basis.
The main legal points examined are:
- The right to court-appointed counsel (Art. 21 para. 1 IMAC): A prosecuted person is entitled to a court-appointed lawyer if the protection of their interests so requires.
- Refusal of mutual assistance (Art. 2 IMAC): Mutual assistance is refused if there are reasons to believe that the proceedings abroad violate the principles of the ECHR and the UN Covenant II or present serious deficiencies. The person concerned must demonstrate an objective and serious risk.
- Public hearing (Art. 6 para. 1 ECHR): The right to a public hearing does not apply to extradition proceedings, which do not determine the merits of a criminal charge or civil rights. The procedure is, in principle, conducted in writing.
- Execution of the sentence in Switzerland (Art. 37 para. 1 IMAC): Extradition may be refused if Switzerland can take over the prosecution of the offense or the execution of the foreign criminal judgment and if this appears appropriate for the social reintegration of the person concerned. However, Switzerland can only take over the execution of a sentence if the state where the offense was committed expressly requests it.
- Legal aid (Art. 65 para. 1 APA and Art. 29 para. 3 of the Constitution): It is granted if the applicant is indigent and if their claims are not devoid of any chance of success. The applicant has a duty to cooperate and must prove their financial situation.
Application to the specific case
The FPC rejected all of the appellant's claims:
- Absence of a lawyer: The FPC found that the applicant received an effective defense, as he was able to express his grievances with sufficient clarity.
- Criticism of Italian proceedings: No serious procedural flaws were demonstrated.
- Request for an oral hearing: Art. 6 ECHR is not applicable, and there is therefore no reason to deviate from the rule that appeal proceedings in matters of mutual criminal assistance are conducted in writing.
- Risks in the event of extradition and execution of the sentence in Switzerland: The FPC noted that Italy did not request that Switzerland take over the proceedings. Regarding the alleged threats, the appellant provided no concrete evidence of a real danger, nor did he demonstrate that the Italian authorities would be unable to ensure his safety. The argument regarding prison overcrowding was also dismissed.
- Legal aid: The application was rejected on two grounds. Firstly, the appellant failed to provide any documentation to prove their indigence, thereby failing in their duty to cooperate. Secondly, their appeal was manifestly devoid of any chance of success.
Outcome
The Federal Criminal Court rejected the appeal. The application for legal aid was also rejected. The court costs were charged to the appellant.
Silex newsletter published in collaboration with Elisabetta Tizzoni
