FPC, 03.09.2026, RR.2026.97
Facts
On March 18, 2026, the Italian Ministry of Justice requested the extradition of A. from Switzerland for the purpose of serving a four-year and six-month prison sentence.
This sentence was handed down by the Court of Rome on March 24, 2023, for fraudulent bankruptcy and other offenses (Fact A).
A. was arrested in the canton of Ticino on April 2, 2026, based on an arrest warrant for extradition purposes issued by the Federal Office of Justice (FOJ).
During his interrogation, he opposed his extradition via the simplified procedure (Fact B).
By decision of June 24, 2026, the FOJ granted the extradition of A. on the charges of fraudulent bankruptcy, while refusing it for another charge (Fact G).
On July 22, 2026, A. (hereinafter: the appellant) filed an appeal with the Appeals Chamber of the Federal Criminal Court against the extradition decision.
He primarily seeks its annulment, citing in particular a violation of his defense rights in the Italian proceedings (Fact M).
Law
Extradition between Switzerland and Italy is governed by the European Convention on Extradition (ECE) and its protocols, as well as by the Schengen agreements.
Domestic law, in particular the Federal Act on International Mutual Assistance in Criminal Matters (IMAC), applies on a subsidiary basis or if it is more favorable (recital 1.2).
A request for cooperation may be declared inadmissible if there are grounds to believe that the proceedings abroad do not respect the principles of the European Convention on Human Rights (ECHR) or present other serious deficiencies (art. 2 IMAC) (recital 2.1).
When extradition is requested to enforce a sentence handed down in absentia (in the absence of the accused), the requested state may refuse it if the minimum rights of the defense have not been respected.
However, extradition shall be granted if the requesting state provides sufficient guarantees to ensure the extradited person the right to a new trial that safeguards the rights of the defense (art. 3 of the 2nd Additional Protocol to the ECE).
The mutual assistance judge does not review the merits of foreign decisions, except in cases of serious and manifest violations of fundamental rights (consid. 2.1).
Extradition may be refused if Switzerland can take over the prosecution or the enforcement of the sentence and if this appears appropriate for the social rehabilitation of the individual (art. 37 para. 1 IMAC).
However, this provision cannot be invoked against Italy, as the ECExtr does not contain a similar rule.
Furthermore, interference with family life is an inherent and acceptable consequence of extradition, barring exceptional circumstances (art. 8 ECHR) (consid. 3.2, 3.3).
Application to the specific case
The appellant argues that the Italian proceedings violated his rights of defense, as his appeal was declared inadmissible on purely formal grounds (lack of a specific mandate to appeal, as required by a new law) (consid. 2.1).
The Court rejects this claim.
The appellant was represented by a lawyer of his choosing in Italy and was able to use ordinary legal remedies.
The inadmissibility of his appeal resulted from the application of a procedural rule in force at the time of the judgment.
It is not for the Swiss mutual assistance judge to rule on the relevance of foreign procedural law or to review the merits of Italian decisions, in the absence of a serious and manifest violation of the rights of the defense, which is not the case here.
Consequently, there is no reason to condition the extradition on the guarantee of a new trial (consid. 2.2).
The appellant also invokes his close ties to Switzerland (residency since 2014, family, C permit) to request that the sentence be served in Switzerland under art. 37 IMAC (consid. 3.1).
The Court dismisses this argument.
On one hand, art. 37 IMAC is not applicable in relations with Italy.
On the other hand, Italy has not requested that Switzerland enforce the sentence in its place.
Finally, the appellant's family ties do not constitute an exceptional circumstance justifying the refusal of extradition under Art. 8 ECHR (consid. 3.4).
The appellant also contests the dual criminality for one of the counts of bankruptcy.
The Court finds that the described facts (maintaining incomplete accounting records that prevent the reconstruction of assets) are punishable under Swiss law as mismanagement (Art. 165 SCC) and failure to maintain accounting records (Art. 166 SCC).
The condition of dual criminality is therefore met (consid. 4.1, 4.2).
Outcome
The Appeals Chamber dismisses the appeal (consid. 6).
The FOJ's decision to grant the extradition of A. to Italy is upheld (consid. 6).
Legal costs, set at 3,000 CHF, are charged to the appellant (Dispositif 3).