The 1930 Treaty prevails over the Code: the Italian Supreme Court on extradition detention to Venezuela

How long may a person remain provisionally detained in Italy while Venezuela prepares its formal extradition request?

40 days, under the Italian Code of Criminal Procedure, or 100 days under the bilateral extradition treatysigned in 1930?

In judgment no. 31591/2026 (available on Extradition Hub), the Italian Supreme Court chose the second answer. The Treaty is lex specialis and therefore displaces the shorter domestic time limit.

The Court nevertheless annulled the contested decision and remitted the case to the Rome Court of Appeal because, by the time the case reached the Supreme Court, the ordinary 100-day treaty period had expired, and it was no longer possible to establish from the file whether the continuing detention rested on a different legal basis.

A second ruling in the same proceedings

The case concerned a Portuguese national who had been residing in Spain for several years. She was provisionally arrested in Italy on 15 March 2026 pursuant to a Venezuelan arrest warrant. The allegations against her included criminal association, aggravated kidnapping and extortion, terrorism and unlawful trafficking in firearms, in relation to events allegedly committed in Venezuela in July 2021.

The same proceedings had already reached the Court of Cassation. In judgment no. 18120/2026, discussed in our May 2026 bulletin, the Court upheld the initial provisional arrest.

In that first appeal, the requested person relied, among other matters, on her Portuguese citizenship, her settled life in Spain and an earlier Spanish decision refusing the Venezuelan request. She also invoked the principles developed by the Court of Justice in Petruhhin. The Court held, however, that the information mechanism required by EU law did not apply at the urgent provisional-arrest stage. It regarded that mechanism as relevant to the subsequent examination of the extradition request on its merits.

The new appeal concerned a different question, namely whether the custodial measure had expired because the formal extradition request and supporting documents had not been received within 40 days.

The 1930 Italy-Venezuela Treaty

Extradition relations between Italy and Venezuela are governed by the Treaty on extradition and judicial assistance in criminal matters, signed in Caracas on 23 August 1930 and implemented in Italy by Law no. 517 of 17 April 1931.

Despite its age, the Treaty remains the starting point for determining the applicable procedure.

Article 10 permits provisional arrest in urgent cases, provided that the requesting State undertakes to submit the formal extradition request and the necessary documents. The person must be released if those materials are not received within 100 days of the arrest. The period may rise to 120 days when the requested person has been reported as dangerous.

The Treaty therefore contains its own complete rule on the duration of provisional detention.

It also contains an interesting nationality rule of broader relevance to Italy-Venezuela cases. Under Article 4, each State refuses to extradite its own nationals but undertakes, subject to the conditions laid down in the Treaty, to prosecute them domestically upon the request of the other State (aut dedere aut iudicare).

Maximum time-limit for provisional coercive measures in extradition proceedings to Venezuela

Under Article 715(6) of the Italian Code of Criminal Procedure, a provisional coercive measure must be revoked when the Ministry of Justice has not received the formal extradition request and supporting documents within 40 days of the notification of the arrest to the foreign State.

The defence argued that this domestic time limit must apply instead of the 100-day time-limit envisaged in the 1930 Treaty and that the detention had consequently expired.

The Court of Cassation disagreed.

Article 696 of the Code gives precedence to international conventions and generally recognised rules of international law. The provisions of the Code apply only where the relevant international instrument does not provide otherwise. Where a bilateral or multilateral treaty regulates the matter differently, the treaty prevails.

Since Article 10 of the Italy-Venezuela Treaty expressly regulates both provisional arrest and the period within which the formal request must be submitted, there is no room for the residual 40-day rule. The applicable period is therefore 100 days – or potentially even 120 days where the Treaty’s dangerousness condition is satisfied.

The defence also argued that a period drafted in 1930, when international communications were considerably slower, could no longer justify keeping a person in custody for more than three months while awaiting the formal request.

The Supreme Court rejected that argument. In its view, the 100-day period was neither unreasonable nor “objectively disproportionate”, even in the modern communications environment. According to the Court, the preparation of an extradition request requires more than the transmission of a message. It may involve judicial authorities, government departments, diplomatic channels, translations and the formal collection and certification of supporting documents. The Court therefore considered that these institutional steps continued to justify the Treaty's longer period.

How unusual is a 100-day period?

Modern extradition instruments tend to cluster within a range of 40 to 60 days. Article 16(4) of the European Convention on Extradition provides that provisional arrest may not, in any event, exceed 40 days, while the UN Model Treaty on Extradition offers the same period as its model provision. Article 14(3) of the Inter-American Convention on Extradition adopts a 60-day limit.

Domestic legislation (cf. 715(6) of the CCP, cited above, applicable in the absence of an extradition treaty) and Italy’s later bilateral practice broadly follow the same pattern. The 1983 Italy-United States Treatylikewise provides for 45 days, while Article IX(4) of the 2005 Italy-Canada Treaty allows 60 days, subject to a possible extension by the requested State.

Section 74 of the UK Extradition Act 2003 establishes a default period of 45 days, although a longer period may be designated for particular territories.

International practice is not entirely uniform. The US Department of Justice Manual describes the periods found in US extradition treaties as ranging from 30 days to three months. Several older treaties did indeed allow three months for the formal request and supporting documents to be submitted. Examples include the 1924 US-Bulgaria Treaty, the US treaties with Poland, Austria and Iraq, and the 1953 Belgium-Lebanon Treaty.

Those instruments provide genuine comparators, but they do not remove the anomaly. The Italy-Venezuela Treaty exceeds even the upper end of the 90-day historical range – and does so more substantially where Article 10 extends the period to 120 days for a person designated as a dangerous offender.

A definitive claim of worldwide uniqueness would be difficult to sustain. The treaty corpus is fragmented, not every historical instrument is available in searchable form, and some older treaties continue to operate through State succession. Nevertheless, among the treaty texts and official materials examined for this post, no other instrument was identified that allows 100 days or more of provisional arrest while the requested State awaits the formal extradition request and its supporting documents. The exact 100-day formula therefore appears to be extremely rare and possibly unique. More importantly, it is markedly removed from the 40- to 60-day benchmark reflected in the principal modern instruments.

The European Arrest Warrant offers a further, though not strictly equivalent, point of comparison. Under Article 17 of Framework Decision 2002/584/JHA, the final decision on execution should normally be taken within 60 days of arrest, with a possible 30-day extension in particular cases. However, there is an important point of distinction: an EAW is already an operative judicial request containing the information necessary to initiate the surrender procedure, whereas provisional arrest under the Italy-Venezuela Treaty may precede the formal request and supporting documents.

Even allowing for that difference, it is striking that the Treaty permits a person to remain provisionally detained for 100/120 days merely while those documents are awaited – longer than the ordinary period contemplated for reaching the final decision on an EAW.

Why the Supreme Court’s reasoning is open to question

The Supreme Court’s reasoning is open to debate, at the very least.

Faster communications may equally be said to weaken, rather than preserve, the historical justification for a period two and a half times longer than the ordinary Italian rule. The involvement of judicial and diplomatic authorities explains why some time is required. It does not establish why as many as 100 days should remain proportionate in present-day conditions.

More importantly, the judgment does not appear to examine how much time was actually required for the individual stages of this case, nor does it identify whether those steps were taken promptly or whether any periods of inactivity occurred. Instead, the reasoning moves from the existence of several participating authorities to the automatic conclusion that the Treaty period is proportionate in principle whenever that Treaty applies.

Quite frankly, that approach is difficult to reconcile with the methodology required by Article 5 ECHR.

The Strasbourg Court has deliberately refrained from establishing a universal maximum period for extradition detention (see, among others, Matthews and Johnson v. Romania, 9 April 2024, § 125). It nevertheless requires detention to remain closely connected to active extradition proceedings and those proceedings to be pursued with the “due diligence” required by the circumstances of the individual case (Gallardo Sanchez v. Italy, 24 March 2015, § 40). Particular expedition is required where extradition is sought for prosecution, because the person remains presumed innocent, cannot yet exercise defence rights in the requesting State and is detained by a court that cannot examine the merits of the foreign charge (Khokhlov v. Cyprus, 13 June 2023, § 90).

M.C. v. Türkiye, 4 June 2024, illustrates both the scope and the limits of this requirement. Russia failed to transmit the necessary documents during the 40-day provisional-arrest period, and the applicant was released after 39 days. The Court accepted that initial period as lawful (§ 55). It did not, however, suggest that the existence of the 40-day ceiling made every period of detention within it proportionate by definition. In fact, its examination remained directed at the actual conduct of the proceedings, the existence of serious delays and whether extradition continued to be a realistic prospect (§§ 51-62).

The same distinction emerges even more clearly from Khudyakova v. Russia, 8 January 2009. The Court held that a treaty provision requiring release after forty days was an additional safeguard against excessive provisional detention, not an independent legal basis authorising detention for the whole of that period (§ 65). A treaty maximum therefore does not relieve the authorities of the need to justify detention before that point.

Nor can the requested State simply rely on delays or deficiencies attributable to the requesting State. In Khamroev and Others v. Ukraine, 15 September 2016, §§ 90-99, the extradition material supplied by Uzbekistan was considered insufficient, yet the applicants remained in detention long after that deficiency had been identified. The Court attributed the resulting violation to Ukraine. Although the requested State could not control the conduct of the requesting authorities, it remained responsible for deciding whether continued detention was justified.

A Convention-compliant assessment would therefore require scrutiny of what the authorities had actually done, which stages remained outstanding and whether each had been pursued without avoidable delay. By holding that the 100-day period envisaged by the Italy-Venezuela Treaty is not disproportionate in the abstract, the Supreme Court risks replacing that individual and continuing assessment with a general presumption in favour of detention throughout the treaty period.

Conclusion

The 100-day rule is a genuine treaty anomaly. Although older three-month provisions show that it is not entirely unprecedented in historical extradition law, its exact formulation appears exceptional and it sits well outside the 40- to 60-day range reflected in the principal modern instruments.

The Supreme Court was certainly entitled to recognize the precedence of the 1930 Treaty over the ordinary Code provision. However, the Court should have equally carried out an individualized assessment of whether that 100-day period was disproportionate in the peculiar circumstances of the case, not in the abstract.