FPC, 04.12.2025, RR.2025.163
Facts
Italy has requested the extradition of an Albanian national (the appellant) from Switzerland to serve a four-year custodial sentence for drug-related offenses, as mandated by a final judgment. Following his arrest in Switzerland, the appellant was placed in extradition detention and opposed the simplified procedure.
The Federal Office of Justice (FOJ) authorized his extradition. The appellant appealed this decision to the Federal Criminal Court (FPC), requesting that the extradition be overturned and that he be released. He argued, among other things, that his trial in Italy had taken place in his absence (judgment in absentia) in violation of his defense rights, and requested to serve his sentence in Switzerland for family and social reintegration reasons. After forwarding the appellant's request to the FOJ, the Italian authorities confirmed they were maintaining their extradition request.
Law
Extradition between Switzerland and Italy is primarily governed by the European Convention on Extradition (ECE) and its additional protocols. Swiss law, specifically the Federal Act on International Mutual Assistance in Criminal Matters (IMAC), applies on a subsidiary basis.
- Judgment in absentia (Art. 3 ECE ; Art. 37 para. 2 IMAC): Extradition for the enforcement of a judgment rendered in absentia may be refused if the minimum rights of the defense were not guaranteed. However, according to case law, these rights are considered respected if the person prosecuted was represented by a lawyer of their choosing during the proceedings or if they were able to appeal the judgment before a body with full powers of review.
- Enforcement of the sentence by substitution (Art. 37 para. 1 IMAC): Swiss law provides for the possibility of refusing extradition if Switzerland can take over the enforcement of the sentence and if this promotes the person's social reintegration. However, the ECE does not contain a similar clause. Under the principle of the primacy of international law, this domestic provision cannot be invoked to refuse an extradition governed by the ECE. Furthermore, enforcement by substitution requires a formal request from the requesting state (Art. 94 IMAC). An exception is only permitted in the presence of exceptional family circumstances within the meaning ofArt. 8 ECHR.
- State of health: Neither the ECE nor the IMAC provides for the refusal of extradition on health grounds. It is the responsibility of the requesting state to ensure that the extradited person receives appropriate medical care.
Application to the specific case
The Federal Criminal Court examined the appellant's grievances and rejected them for the following reasons:
- Regarding the judgment in absentia: The court found that the appellant had been personally summoned to appear in Italy and informed that a judgment could be rendered in his absence. Crucially, he was represented by a lawyer of his choosing in both the first instance and on appeal. Consequently, his minimum rights of defense were respected, and there are no grounds to refuse extradition on this basis.
- Regarding the execution of a substitute sentence: The Federal Criminal Court noted that the European Convention on Extradition, which is applicable in this case, does not allow for the refusal of extradition on these grounds. Furthermore, Italy has not filed a formal request for Switzerland to execute the sentence; on the contrary, it has maintained its extradition request. The appellant's family situation (married, father of two young children born in Switzerland) does not constitute a case of hardship or exceptional circumstances within the meaning of the case law on Art. 8 ECHR that would justify departing from the obligation to extradite. The court also noted that the prospect of reintegration in Switzerland was compromised by the mandatory expulsion from the territory that would likely follow the execution of a sentence in Switzerland.
- Regarding health status: The Federal Criminal Court reiterated that the appellant's state of health does not constitute an obstacle to extradition. It is the responsibility of the Italian authorities to ensure adequate medical care, and the Federal Office of Justice will inform them of the appellant's situation.
Finally, as the request for release was ancillary to the appeal regarding extradition, it was rejected accordingly.
Outcome
The Federal Criminal Court rejected the appeal. The appellant's extradition to Italy is confirmed. The request for release was also rejected. The legal costs were charged to the appellant.
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