Italian pretrial detention duration in national and extraditional proceedings

Pretrial detention is a key area where procedural safeguards and proportionality intersect — especially when comparing domestic criminal proceedings with extradition procedures.

In Italian national criminal cases, Art. 303 CPP establishes phase-based and overall limits: 2, 4, or 6 years depending on offense severity, time caps apply across investigation, trial, and appeal phases.

In extradition cases, the framework is autonomous: articles 704 and 714 CPP set specific deadlines during the judicial phase.

for FAW custody, recent reforms (Leg. Decree 10/2021) introduced rigid 90- and 180-day reviews of pretrial detention.

Unjustified pretrial detention has to be compensated under Italian law. 

1. Pretrial Detention in Italian National Criminal Proceedings

In Italian national criminal proceedings, pretrial detention, which incluides not only jail time but house arrest as well, is regulated by Art. 272 and following of the Italian Code of Criminal Procedure.

Pretrial detention is a "coercive measure" that can only be applied for felonies with at least 5 years of statutory minimum, if there is a reasonble cause ("serious indication of guilt"), AND precautionary needs, and namely (a) risk of flight, (b) danger of reoffending and (c)  risk of tampering with evidence.

The measure is requested by prosecution and decided by a judge; the decision can be appealed within 10 days and appealed again up to Supreme Court. 

It is noteworthy that the defense can challenge or request reassessment of necessity / proportionality of the  detention  anytime and as many times a new element in law or in fact occurs, but every time a judge rejects the request the prosecution case gets stonger (jurisprudence hass coined the term "precautionary res judicata"). 

Maximum Duration of Pretrial Detention in Criminal Proceedings (Art. 303 CPP)

Italian system knows a maximum duration of pretrial detention, distinguishing (A) phase based limits  and (B) overall maximum duration.

The phase-based and overall limits to pretrial detention are codified in Article 303 CPP, which breaks down the maximum duration into three cumulative phases, and establishes absolute upper limits depending on the gravity of the offense.

A. Phase-Based Maximum Durations (Art. 303(1) CPP)

Pretrial detention in national ccriminal proceedings and trials is divided into three procedural phases:

1. investigative Phase (includes investigation and prosecution)

2. first-instance Trial Phase

3. appeal and Cassation Phase

For each phase, the maximum permissible duration of custody is as follows:

Note: These limits can be extended under certain circumstances (see below) but absolute maximum duration has to be respected in any case..

B. Absolute Maximum Overall Duration – Art. 303(4) CPP

Irrespective of the phase-by-phase limits, Article 303(4) sets an overall maximum duration of pretrial detention, beyond which the person must be released:

• 2 years if the crime is punishable by a term ≤ 6 years

• 4 years if the maximum penalty is > 6 and ≤ 20 years

• 6 years for crimes punishable by > 20 years or life imprisonment

These maximum durations include all extensions, suspensions, and procedural delays. They represent a hard ceiling and are inviolable.

C. Extensions and Suspension of Time Limits

Under Art. 305 CPP, prosecutors may request an extension of pretrial detention during the investigative phase for justified reasons. However, judicial oversight is required, and such extensions cannot breach the overall limits in Art. 303(4).

Certain periods do not count toward the calculation of pretrial detention, such as:

• Days of court hearings or judicial deliberation (Art. 297(3) CPP)

• Delays due to the defendant’s own conduct

• Periods of mental or physical incapacity of the accused

D. Special Provisions (Art. 304(6) CPP – “Final Limit”)

In some exceptional cases—where the proceeding is particularly complex or delayed—Article 304(6) CPP allows the extension of pretrial detention beyond phase limits, but only up to a "final maximum" equal to the maximum legal penalty for the crime (but never exceeding the final maximum terms under Art. 303(4)

This mechanism is narrowly construed and should be challenged vigorously if invoked improperly.

E. Consequences of Time Expiry

If the maximum pretrial detention term expires at any phase, the court must immediately order release, unless:

• another non coercive pretrial measure (e.g. reporting obligations but nort ghouse arrest, since time served in house arrest is considered equal to the time served in pre-trial detention) is imposed;

• a new, separate detention order is issued based on a different legal ground (e.g., a new charge).

 

2. Pretrial Detention in Italian Extradition Proceedings

In extradition proceedings, pretrial detention is governed by differente sources: 

- Law no. 69/2005 for an European Arrest Warrant pretrial detention and

- the extraditional provisions of Code of Criminal Procedure (for traditional extradition requests, particularly Articles 704–719 CPP (general extradition procedure).

A. Purpose of Extraditional Custody

The measure in both EAW and traditional extradition requests aims to prevent the requested person from fleeing, since the escpae stops the case (and the surrender). It is not based on the merits of the foreign charge but on the request’s validity and procedural regularity.

B. Duration of Pretrial Detention

B.1 EAW pretrial detention in Italy 

Legislative Decree no. 10 of 2021 introduced substantial changes to Italy’s legal framework governing custodial measures in the context of European Arrest Warrants (EAWs), introducing of explicit maximum durations for the validity of pretrial custody measures during the EAW process, with two levels of judicial scrutiny.

First Judicial Review – After 90 Days (or 40 in Consent Procedures)

Italian implementation law of FD 584/2002 (law 69/2005, Art. 22-bis(3) requires the Court of Appeal to reassess the necessity of detention 90 days after the initial order (or 40 days if the person consents to surrender).

The Court must examine whether (1) detention remains strictly necessary to prevent flight, and (2) whether the duration of detention is proportionate to the actual or potential penalty underlying the warrant. If not, the custodial measure must be revoked, or replaced with less intrusive alternatives, such as house arrest, reporting duties, or travel restrictions (also cumulatively).

Second Review – If Delays Persist Beyond 90 More Days

Under Art. 22-bis(4) Italian implementain law a second mandatory assessment occurs if the final decision on surrender is unjustifiably delayed beyond the first 90/40-day period, and another 90 days have passed without final resolution.

At this stage, custody must be revoked, unless there are ongoing and concrete risks of absconding. In that case, the Court may impose less severe coercive measures as per Articles 281–283 CPP (e.g., obligation to report, travel bans, or house arrest).

Note: For minors, special rules Art. 20 of Presidential Decree 448/1988 applies.

Takeaways Italian EAW pretrial detention

Custodial measures in EAW proceedings are now subject to strict judicial review timelines, restoring balance between effective cooperation and fundamental rights.

Defense counsel should monitor:

• • the 90-day and 180-day thresholds,
  • the proportionality of detention to the penalty at stake,
  • the availability of non-custodial alternatives, and
  • the possibility of triggering automatic release when delays become unjustified.

Old rules on automatic expiration of custody due to inaction no longer apply.

B.2 EXTRADITIONAL PRETRIAL DETENTION

Italian rules for international extradition proceedings are partly common, partly different form those applicable in Italian national criminal proceedings: consequently, Italian courts need to interpret them, not always consistently to prior decisions.

Pretrial detention in extradition proceedings under Italian law is strictly limited in both purpose and duration. The maximum terms are short and non-extendable, and any deviation should be promptly contested. Defense counsel should invoke Articles 704 and 714 CPP alongside constitutional and ECHR principles to protect liberty and ensure that detention remains proportionate, justified, and time-bound.

1. Article 704 CPP – Applicability of Ordinary Coercive Measures

Art. 704(2) CPP provides that: “To the extent they are compatible with the nature and structure of the extradition procedure, the rules on personal coercive measures contained in Title I of Book IV apply.”

This clause introduces a conditional incorporation of the general rules on precautionary measures (Arts. 272 et seq.) into the extradition procedure — including the necessity of judicial review, proportionality, and motivation (reasoning). However, this reference is limited by the principle of compatibility: certain rules (especially those concerning duration, as per art. 303 CPP) are not automatically applicable in extradition.

2. Article 714 CPP – Maximum Duration of Custodial Measures

Article 714 CPP expressly sets specific rules for international extraditional pretrial detention during the judicial phase of extradition, ruling that:

1. At any time, the person whose extradition is requested may be subjected, upon request of the Minister of Justice, to pretrial detention or coercive measures.

2. The ordinary provisions relating to coercive measures, shall apply insofar as they are compatible, except for Articles 273 and 280 (reasonable cause); applying coercive measures, special consideration must be given to the need to ensure that the person sought for extradition does not evade surrender.

3. Coercive measures (and seizure) may not be ordered if there are grounds to believe that the conditions for a favorable extradition judgment are not met.

4. Coercive measures shall be revoked if one year has passed since their enforcement without the Court of Appeal having rendered a favorable judgment on extradition, or, in the case of an appeal before the Court of Cassation, if one year and six months have elapsed without the judicial proceedings being concluded. Upon request of the Public Prosecutor General, these time limits may be extended, including multiple times, for a total period not exceeding three months, when it is necessary to carry out particularly complex inquiries.

5. Coercive measures shall also be revoked if three months have passed since the Minister of Justice rendered a favorable decision on the extradition request, without the surrender of the requested person having taken place. This time limit is suspended from the date on which an appeal is filed before the administrative court against the Minister’s decision, until the filing of the judgment rejecting the appeal or of the decision declaring the proceedings extinguished, in any case for no longer than six months.

6. Jurisdiction to rule under the preceding paragraphs belongs to the Court of Appeal, or, during proceedings before the Court of Cassation, to that court.

Thus, the total duration of pretrial detention during the judicial phase of extradition is subject to a maximum of 1 year and 9 months. These are rigid deadlines. If they lapse without a decision or without proper documentation by the requesting State, the person must be released.

Key Points:

• Monitor deadlines precisely: Detention in extradition proceedings is strictly time-bound (Arts. 714(4) and 715(6) CPP).

• File immediate release requests if time limits are exceeded or surrender is suspended.

• Challenge the compatibility of ordinary criminal provisions  with extradition custody — they are generally not applicable.

3. Italian Supreme Court 2006 ruling 

In a landmark decision no. 41540/2006, the Italian Supreme Court, sitting in its Grand Chamber (Sezioni Unite Penali), addressed a fundamental issue regarding the temporal limits of custodial measures in extradition proceedings.

The Court reaffirmed the strictly instrumental nature of pretrial detention in extradition proceedings: such measures are constitutionally legitimate only insofar as they serve the exclusive purpose of ensuring surrender to the requesting State. Once this objective is suspended or no longer attainable—regardless of the reasons—the coercive measure must be revoked, absent a specific legal provision authorizing its continuation.

The judgment underscores the constitutional framework of Article 13 of the Italian Constitution, which mandates that any restriction on personal liberty must (i) be ordered by judicial authority, (ii) occur in the cases and manners prescribed by law, and (iii) be functionally justified. This applies across all procedures, including extradition, despite its international dimension. The Court also referenced the jurisprudence of the Constitutional Court and the European Court of Human Rights, stressing that coercive measures must be both temporary and proportionate to their legal purpose.

The Court held that Articles 303 and 308 CPP, which regulate the maximum permissible duration of pretrial detention in domestic criminal proceedings, do not apply to extradition scenarios where surrender has been suspended. These norms are designed around the phased progression of an ordinary criminal trial—investigative, trial, and appellate stages—which are entirely foreign to the structure of extradition procedures. 

It is observed, in particular, that the system outlined by the Code of Criminal Procedure is inspired by the clear intention to limit as strictly as possible the deprivation of personal liberty of the person subject to extradition (the extraditee), to the point of establishing a detailed and rigorous system—autonomous from the general one—that regulates the matter scrupulously, with reference to each of the phases into which the extradition process may be divided:

• the preliminary phase before the formal extradition request, aimed at the adoption of provisional coercive measures (Articles 715 and 716 CPP);

• the judicial review phase proper (Article 714 CPP);

• and finally, the execution phase (Articles 708 and 709 CPP).

Given that Article 714 CPP provides for independent limits on the duration of coercive measures applied for extradition purposes, it has been inferred that the reference made by Article 714(2) CPP to the provisions in Title I of Book IV cannot render applicable, even in part, the provisions of Articles 303 and 308 CPP. This is because those articles concern the maximum duration of coercive measures in ordinary criminal proceedings, which follow procedural steps, phases, and degrees that have nothing to do with the extradition procedure and are, as such, ontologically incompatible with it.

Moreover, it has also been noted that it would be paradoxical if a system that—on one hand—includes clearly tailored provisions intended to limit the restriction of liberty in the judicial phase of extradition to very short timeframes, would then—on the other hand—allow for the extension of those time limits up to the maximum durations provided for by Article 303(4) CPP during a phase—such as the execution phase—that is even more incompatible with the logic of ordinary criminal proceedings and the related time structures.

For these reasons, the Supreme court held that the extradition regime provides its own self-contained framework, with shorter and tightly regulated custody timeframes reflecting the ancillary nature of detention in this context. For example, Article 714(4) CPP provides a strict deadline for custody during the judicial phase of extradition, with no provision for continued detention once that phase has concluded and execution is deferred.

While the intermediate or phase-based time limits are  incompatible with extradition proceedings, there would be no obstacle to applying—also in extradition matters—the maximum overall time limits under Article 303(4) CPP, since the same rationale applies: namely, the need—present in both ordinary and extradition proceedings—to ensure the actual execution of a decision through the imposition of a coercive measure, while also limiting the sacrifice of personal liberty to a reasonable duration, striking a fair balance between individual rights and the interests protected by the underlying legal rules.