Serving an Italian sentence in your own country
A sentence imposed in Italy can be enforced elsewhere by distinct routes. Within the European Union, mutual recognition of custodial judgments applies, and in defined cases it operates without the person's consent. Outside the Union, the Council of Europe convention on the transfer of sentenced persons applies, and it requires the agreement of the person and of both states.
The decision that matters is not where you would prefer to be. It is what the residual sentence means in each system, because the release rules of the enforcing state apply once a transfer is made. Italy grants a reduction for each period served with participation in the rehabilitative programme, and allows a residual sentence within limits to be served outside prison altogether; not every system has an equivalent. A transfer is not undone if the calculation turns out badly.
Avv. Massimo Romano — Ordine degli Avvocati di Napoli n. 14553, patrocinante in Cassazione dal 23/10/2015 — Roma, Via Avicenna 97, 00146 · Milano, Via Giuseppe Pecchio 3, 20129 · Napoli, Corso Umberto I 237, 80138 — +39 335 669 3954
In brief
- Within the Union, enforcement can be transferred to the state of nationality where the person lives, or to which they would be removed after the sentence, without their agreement.
- That surprises people who assume the choice is theirs, and it cuts both ways: it removes an obstacle for someone who wants to go home and is unwelcome for someone whose family and prospects are in Italy.
- Outside the Union the convention route requires the person's consent and the agreement of both states, and in practice it takes considerably longer.
- Grounds for refusing recognition inside the Union are limited, which is what makes that procedure faster than the convention route.
- The sentence may be adapted where it is incompatible with the law of the enforcing state, and the limits on that adaptation are worth examining before any request is made.
- The release rules of the enforcing state apply afterwards, so the comparison must be between the residual sentence in Italy and the residual as it would be recalculated at home.
- Alternatives to detention are the central question, because Italian law allows a residual sentence within limits to be served outside prison and many systems have nothing equivalent.
- Conditions, language, visits and the cost of keeping contact belong in the comparison rather than being treated as secondary, and the decision cannot be reversed once the transfer is made.
The two routes
| Element | Within the EU | Outside the EU |
|---|---|---|
| Basis | Mutual recognition of custodial judgments | Council of Europe convention of 1983 |
| Consent of the person | Not always required | Required |
| Consent of both states | Limited grounds for refusal | Both must agree |
| Typical timescale | Months | Often considerably longer |
| Adaptation of the sentence | Possible where incompatible | Possible, with limits |
| Effect on release rules | Those of the enforcing state apply | Those of the enforcing state apply |
The last line is the one that decides whether a transfer is a good idea, and it is the one people examine last.
Transfer without consent
Within the Union, enforcement can be transferred to the state of nationality where the person lives, or to which they would be deported after the sentence, without their agreement. This surprises people who assume the choice is theirs.
It can work either way. For someone who wants to go home it removes an obstacle. For someone who would rather remain in Italy — because their family is here, or because Italian law offers alternatives to detention that their own system does not — it can be an unwelcome outcome, and it is a decision that can be argued about rather than simply accepted.
The comparison that actually matters
The question is not where you would prefer to be. It is what the residual sentence means in each system, and the elements are these.
- Early release rules. Italy grants a reduction for each six-month period served with participation in the rehabilitative programme, which materially shortens the term. Not every system has an equivalent.
- Alternatives to detention. Italian law allows a residual sentence within certain limits to be served outside prison altogether. Whether an equivalent exists at home is the central question.
- Conditions. Sometimes better, sometimes considerably worse.
- Family. Visits, language, contact — which for a long sentence is not a secondary consideration.
- Irreversibility. A transfer is not undone if the calculation turns out badly.
The honest comparison is between the residual sentence here, with the Italian alternatives to detention taken into account, and the same sentence at home under that country's rules. That requires advice on both sides, which is what the arrangement described in how a correspondent case is run exists for.
The usual conditions
A final judgment; a residual sentence long enough for the transfer to be worth organising; dual criminality within the terms of the applicable instrument; no other proceedings requiring the person's presence in Italy; and a resolution of any compensation ordered in favour of injured parties, which does not travel with the sentence.
The route depends on whether the enforcing state is inside the Union, and the two procedures differ in almost every respect. The table compares them.
| Element | Within the European Union | Outside the European Union |
|---|---|---|
| Legal basis | Mutual recognition of custodial judgments | The Council of Europe convention on transfer of sentenced persons |
| Consent of the person | Not always required | Required |
| Agreement of the states | Limited grounds for refusing recognition | Both states have to agree |
| Typical timescale | Measured in months | Often considerably longer |
| Adaptation of the sentence | Possible where the sentence is incompatible | Possible, within limits |
| Release rules applied afterwards | Those of the enforcing state | Those of the enforcing state |
How it is started
Through a lawyer, with the application directed to the competent authority for enforcement. The preliminary work is the important part: reconstructing the whole enforcement position — the aggregation of sentences, the reductions already granted, credit for time served — because an error there produces a wrong residual figure and therefore a wrong decision.
That reconstruction is also worth doing on its own account, and it is described in the guide on what follows a conviction.
Frequently asked questions
Can I serve my Italian sentence at home?
Within the EU through mutual recognition of custodial judgments, and outside it through the Council of Europe convention of 1983, which requires the agreement of the person and both states.
Do I have to consent?
Within the EU, not always: transfer to the state of nationality where you live can proceed without consent in defined cases.
Will my sentence stay the same?
The enforcing state may adapt it where it is incompatible with its own law, and its rules on early release then apply, which can be better or worse.
Is it always a good idea?
No. The comparison is between the residual sentence in Italy, with the alternatives to detention available here, and what the same sentence means at home. It is normally irreversible.
If a sentence is being served
The comparison takes documents from both countries and it is worth doing before applying, not after. First contact is free and covered by professional privilege.
Choices that depend on where you want to be
A final sentence in Italy leaves a foreign national with a choice that few other defendants face: to serve it here, or to ask to serve it at home. Each path has costs, and the right path is not always the obvious path.
Whether to ask for transfer at all. Serving at home means family within reach, a language you understand, and a prison system in which you can follow the rules. It also means that the sentence will be enforced under the rules of your own country, which may be less or more generous than the Italian rules about release, work and early leave. Staying in Italy keeps you under the Italian regime, with its alternatives to custody, but far from the people who support you. Before choosing, find out what your own system would do with the same sentence.
Whether to agree if the transfer is proposed without your request. Within the European Union a transfer can be started by the Italian authority in defined cases, and your consent may not be needed. You are entitled to be heard, and to argue that the transfer would harm your prospects of rehabilitation or your ties in Italy. Objecting costs nothing if done on time and in the right form, but it must be done by the deadline set in the notice.
Whether to seek an alternative in Italy beforehand. If you live in Italy and have work and a home, serving the sentence outside prison may be possible and may be better than a transfer. Both routes can be explored, but the timetable of a route can undermine another route, and the lawyer should map them together.
The honest question is what the remaining sentence becomes in each country. The table lists what has to be established on each side before anyone decides.
| Element of the comparison | What to establish in Italy | What to establish at home |
|---|---|---|
| Reductions for the period served | The reduction granted for participation in the programme | Whether any equivalent reduction exists |
| Alternatives to detention | The limits within which the residual can be served outside prison | Whether such a route exists, and on what conditions |
| Calculation of the residual | What remains to be served under Italian rules | What would remain once the sentence is recalculated there |
| Conditions of detention | The institution and the regime actually applied | The institution the person would be sent to |
| Family and contact | Who can visit, and how often | Travel, language and the cost of keeping contact |
| Reversibility | The position if the request is withdrawn before transfer | The position afterwards, which is that it cannot be undone |
Who reads this: the sentenced, the family, the foreign lawyer
The people on this page are connected by a judgment that has become final and a person who is not at home.
Some are in custody in Italy. They were convicted, the appeals ended, and they now serve a sentence in a country where they have no family and often no shared language. They have heard from other inmates that it is possible to go home, and they want to know whether it applies to them and how it begins.
Others are the relatives. A parent, a spouse or an adult child abroad has learned that a person they love is in an Italian prison, perhaps for a long time. They face the cost of visits, the difficulty of calls, and the fear of a system they do not understand. They are asking whether the person can be brought closer, and how soon.
A further group have not yet been detained. They were convicted in Italy, returned home, and now fear what will happen if they travel, or if an Italian request reaches their own authorities. They want to know whether the sentence can be served where they live, and whether doing so is better than waiting.
Finally there are foreign lawyers and consular staff, who are asked to advise a national and need to understand how the system works in Italy. This page speaks to all of them, and it begins from the point that the person's own wishes and situation matter more than the form.
How the place of the sentence changes everyday life
The difference between serving a sentence in Italy and serving it abroad is felt in small things. Visits are the plainest. A family that must cross a border for every visit can afford few of them, and some cannot manage any. At home, visits can be frequent, and children can keep contact with a parent. For a person who has been far from relatives for a long time, a transfer may change the whole experience of the sentence.
Language matters more than people expect. Rules, forms and conversations with staff are in the local language, and a person who cannot follow them is exposed to misunderstanding and discipline. In an unfamiliar system, a person may not understand how to apply for work, for education, for medical care or for leave. At home these things are easier.
Work and release are the other side. Rules on early release, home leave, work outside and supervision differ between countries, and the same sentence can mean very different amounts of time inside. The family should ask what the sentence would be under the home rules before agreeing, and the Italian lawyer should explain how the foreign authority adapts a sentence to its own system.
Release itself changes too. A person released in Italy may be expelled or sent home with nothing; a person released at home returns to their own community, with a chance to rebuild work and relationships. Money is a concern: costs of visits, of lawyers in both countries and of translation should be weighed from the beginning.
What to avoid while the question is open
Transfer cases are slow, and most of the damage comes from actions taken in impatience. Keep the following in mind.
- Do not sign a consent or an objection that you have not understood. The wording affects what the foreign state can do, and it is hard to withdraw.
- Do not assume that a request, when made, stops the sentence from running. In most cases it continues while the matter is considered.
- Do not breach prison rules while the request is pending. Reports of misconduct are part of the file and are weighed by both states.
- Do not promise relatives a date. Timetables depend on both administrations, and promises that fail cause distress.
- Do not pay anybody who offers to arrange a transfer for a fee. The process is official, and offers of shortcuts are not genuine.
- Do not ignore a notice from your home authority about the sentence. It may be asking for your views within a deadline.
- Do not stop pursuing other options, such as a measure outside prison in Italy, until you know that the transfer is certain.
Patience is difficult but necessary. Keep every paper, note every date, and ask the lawyer before replying to any letter. Remember that a transfer is a change of place, not an end to the sentence, so the habits that protect a person in an Italian prison, such as keeping a record of work done and of conduct, remain useful after the move and may be read by the receiving state.
What to prepare for a transfer request
A transfer is built on documents from both countries. Assemble the following, and begin the foreign documents early, because they take the longest.
- The Italian judgment, with the proof that it is final, and the document that fixes the sentence and the date from which it is counted.
- A statement of time already served, including pre-trial detention, and the date on which the sentence will end under the Italian rules.
- Proof of nationality and of residence in your country: a passport, a national identity document, a certificate of residence.
- Evidence of family ties and of work or housing at home, such as letters, contracts and tenancy papers, with certified translations.
- Any record of conduct in custody, including work done, courses taken and any disciplinary entries.
- Medical records, if health is a reason for the request, in a form that can be translated and understood by the foreign authority.
- The name and contact details of the competent authority in your country, if known, and of your lawyer there.
- Copies of anything you have signed or received concerning the transfer, with the date.
If a document is missing, say so. A partial file sent promptly lets the authorities begin, while the rest follows. Ask your family to start gathering their own papers now, since a certificate of residence or a letter from an employer may need several weeks to issue and to translate.
A transfer request is assembled on both sides at once, and each participant needs different material. The table assigns the roles.
| Who | Their part | What they need |
|---|---|---|
| The sentenced person | Consents where consent is required, and may oppose a transfer sought without it | The calculation of the residual under both systems |
| Italian defence counsel | Files the request or the opposition and obtains the enforcement documents | The judgment, the enforcement order and the record of time served |
| A lawyer in the home state | Establishes how the sentence would be recalculated and what release routes exist | The charge, the judgment and the residual as calculated in Italy |
| The Italian enforcement authority | Transmits the judgment and the certificate to the other state | A complete file, with translations |
| The authority of the other state | Recognises, adapts or refuses the judgment | The certificate and the documents accompanying it |
| The family | Supplies the residence and contact material supporting the request | Proof of an address, of ties, and of who would receive the person |
When the sentence belongs to both countries together
A transfer places a sentence under the rules of both administrations, and the person at the centre is subject to the rules and the delays of both. Most of the practical work is coordination.
Documents travel in both directions, and they must be accepted by the receiving state. That usually means official translations and a formal certification of origin. Allow time, and ask the lawyer in each country which papers are essential and which can follow. Letters between authorities take longer than people expect, and public holidays in either country can add delay.
The lawyer in Italy and the lawyer at home need to talk, because the states may take different views. The Italian authority decides whether to send the request and on what terms; the foreign authority decides whether to accept and how to adapt the sentence. If the foreign state would reduce or change the sentence, the Italian side must know. If the foreign state asks questions about the offence, the Italian record is the source.
Consular staff can visit, confirm identity, pass messages and sometimes help with papers, but they cannot choose counsel or decide the transfer. Time zones matter when relatives want to speak to the person or the lawyer, and both lawyers should agree on a routine. Throughout, the person remains in Italy until the transfer is carried out, so Italian rules on conduct, visits and medical care continue to apply.
How the studio handles transfer cases
The studio begins with the judgment. You send a photograph or PDF of the decision and of any notice received, together with a note of where the person is held, and a lawyer reads them to establish the date from which the sentence runs and the time remaining. A call, which can be held in English, covers the person's ties, wishes and health.
A written letter of instruction sets out the work and the fees, and a power of attorney allows the lawyer to act with the Italian authorities and to correspond with the foreign side. The lawyer then explains which route applies, what the Italian authority must decide, and what the foreign state will consider. Where the transfer is proposed without the person's request, the studio prepares the observations that the person is entitled to make, and files them within the deadline.
The studio coordinates with lawyers in the home country, so that the foreign authority receives accurate information about the sentence and the person receives advice on how it will be served there. Offices in Rome, Milan and Naples allow meetings in person with relatives who travel, and urgent matters, such as a notice with a short deadline, are taken at any hour. The studio does not promise that a transfer will be agreed, and will say plainly when it is unlikely. It also explains the alternatives in Italy, so that the decision is based on the full picture.
Questions for the lawyer about serving the sentence at home
People usually ask how quickly they can go home. These questions give a more useful picture.
- Which route applies to me, given my nationality and the country concerned?
- Can the transfer happen without my consent, and what can I argue if it is proposed?
- How much of the sentence remains, and does that make a transfer possible?
- What would the sentence mean in my country: would I serve more time, less time or the same?
- Will the foreign state adapt the sentence, and what does that mean for the original judgment?
- Who starts the process, and what do I need to sign or to say?
- What happens to a pending request for a measure outside prison, and can I pursue both?
- How will my family be told, and who deals with the authorities in my country?
A lawyer who can answer these specifically, and who tells you what depends on the foreign state, is worth listening to. Ask also what the lawyer expects the foreign authority to ask for, which stage is usually the slowest, and what the lawyer will do if the foreign state does not reply. Keep a list of the answers for the family, so that relatives who are not on the call have the same information, and ask the lawyer to confirm in writing any step that has been agreed.
Words on the sentence and the transfer papers
The papers use Italian terms, and the foreign authority may use others. These matter most.
- Pena definitiva is a final sentence, which can no longer be appealed, and which is the basis for enforcement or transfer.
- Esecuzione della pena is the serving of the sentence, with the rules on where and how it is carried out.
- Riconoscimento reciproco is mutual recognition, the principle that a state accepts the judicial decision of another and carries it out.
- Trasferimento is the transfer of the person, or of the enforcement of the sentence, from Italy to another state.
- Ordine di esecuzione is the order issued by the prosecutor to begin serving the sentence.
- Detenuto is a person held in custody, and condannato is a person who has been convicted.
- Adattamento is the adjustment of the sentence by the receiving state so that it fits its own system.
If a document contains any other term, send it to the lawyer before replying. The word for the adjustment of a sentence deserves attention. When a foreign state adapts a sentence, it does not reopen the Italian judgment, but it can change the form and sometimes the length of what is served, and the papers will say which. Read that part of any decision with the lawyer before you agree to anything.
About the lawyer
Criminal defence is the whole of this practice. Avv. Massimo Romano is enrolled with the Ordine degli Avvocati di Napoli and pleads before the Court of Cassation; the work that reaches him concerns Italian criminal procedure, extradition, European arrest warrants, and cases where an Italian citizen is held by a foreign authority. He takes instructions directly. The first contact is short and factual: what the charge is said to be, where the person is, what has already been signed or handed over. Nothing is promised at that stage, because the file has usually not been read. What follows the call is practical, a list of documents to collect, contact with the authority or with local counsel abroad, and a plan for the next hearing or request. Where relatives do not speak Italian, the conversation continues in their own language, and written updates are sent in that language as well, so nobody relies on second-hand translation.
Ring the office directly, or write on WhatsApp if calling is difficult. Keep beside you the summons or the record of the search, and the name of any lawyer already acting.
Avv. Massimo Romano — criminal defence lawyer, admitted to the Italian Court of Cassation
Iscritto all'Ordine degli Avvocati di Napoli n. 14553 | Patrocinante in Cassazione dal 23/10/2015
Roma, Via Avicenna 97, 00146 · Milano, Via Giuseppe Pecchio 3, 20129 · Napoli, Corso Umberto I 237, 80138
+39 335 669 3954 · WhatsApp