Nord Stream, the Supreme Court confirms the handover of Kuznetsov to Germany

Green light for the extradition of the former Ukrainian official accused of the sabotage of the Nord Stream gas pipelines in 2022. The Court of Cassation has, in fact, rejected the appeal against the decision of the Court of Appeal of Bologna, confirming thedelivery to Germanyof the former Ukrainian military officer Serhii Kuznetsov, who was arrested on aEuropean warrant issued by Germany last August in the province of Rimini. The Supreme Court previously had annulled with reference the first decision with which the Court of Appeal of Bologna had ordered the surrender to the German judicial authorities, asking the Court of Appeal to further investigate the issue raised by the defence of objective functional immunity.

In fact, in the appellant's opinion, the matter had to be assessed in the light of his military capacity, the sabotage of the Nord Stream gas pipelines; it therefore had to be considered an act of resistance against the Russian invasion of Ukraine. An action carried out iure imperii on the orders of superiors and on behalf of the Ukrainian state, a legitimate act that cannot be classified as a war crime. In the opinion of the judges of legitimacy, an argument that the Court of Appeal has addressed, however, having concluded that "no element allows us to affirm that the action of sabotage really constituted an act carried out iure imperii in the capacity of an organ of a sovereign State by virtue of orders coming from Authorities of the State to which the appellant belongs, even if they were elusive of decisions of political bodies".

According to the Cassation, in fact, "the existence of functional immunity - as a factor precluding surrender - cannot be generically evoked, but must be punctually demonstrated in relation to the presuppositions and conditions that justify its immediate recognition in the head of the subject invoking its relevance".

Nor is the political nature of the offence on which the European arrest warrant is based an obstacle to surrender. Even after Legislative Decree 10/2021, by which the Italian legislation was adapted to the European arrest warrant, "the political nature of the offence for which the European arrest warrant was issued does not, in itself, constitute sufficient reason to justify the refusal of surrender, it being necessary, to that end, to show that there is a real risk that its execution may give rise to an act or conduct that is discriminatory to the detriment of the applicant, in the context of a trial that may take on unfair connotations. 

Nicola Canestrini, Serhii Kuznetsov's defence lawyer, entrusts a note with his great disappointment at the Supreme Court's verdict, but also his confidence in an acquittal following the trial on the merits in Germany.