A guide to extradition
Extradition is relevant for international cooperation.
By means of this process a state delivers an individual to another state that has made the request (passive extradition), or an individual currently within the territory of another state is requested (active extradition), in order to carry out a prison sentence (executive extradition) or a trial (trial extradition).
The individual if extradited, will be subjected to a trial (trial extradtion), or will have to carry out a penal sentence, if necessary is imposed in an irreversible fashion (executive extradition) in the the state that requests the extradition.
To regulate extradition there are bilateral treaties between countries and the regulations of international law.
They deal with conventions aimed at aligning laws on different subjects.
They do not lack extradition clauses even in other multi layered international agreements, whose aim is essentially to prevent and to punish particularly serious crimes (genocide, terrorism and other international crimes) based on the principal aut dedere aut iudicare (undergo trial or extradition).
Passive extradition is align with the principal of double incrimination, the contested fact of the extradition has to constitute a crime in criminal law in both the state that has requested extradition and the state that grants extradition.
The alleged crime is irrelevant unless an individual is facing extreme punishment such as the death penalty.
Such an outcome would be reason important enough to deny extradition.
In our law extradition is governed by the Code of criminal procedure (articles 697 and ss. c.p.p) and by international agreements.
Active and passive extradition
Extradition can be both passive and active, according to whether the request is made by a foreign state or by Italy.
As stated above extradition is active if the Italian state requests extradition, whilst passive extradition occurs when the Italian state is requested to grant extradition to a foreign state.
The active extradtion is started by the attorney general at the court of appeal in which the sentence is pronounced or where they are still dealing with the crime.
The Minister of Justice decides whether to accept the final conditions that the foreign state requires, in order to grant the extradition.
Such conditions cannot be set against the fundamental principals of the legal system.
The passive extradition procedure is composed of a judicial phase and strictly an administrative phrase.
The foreign state, aware of the the presence of the investigation on Italian soil, asks the Minister of Justice for extradition.
The minister, who has the ability to refuse the request with immediate effect, once the conditions for extradition have been checked, passes the request and the acts attached to the attorney general at the Court of Appeal of the area (judicial procedure).
Article 701 of the Code of Criminal procedure expects it to be the Court of Appeal, in the district in which accused or the sentenced individual resides.
The dwelling or residency in the moment in which the request of extradition is received. One has to state whether the extradition of a the accused or the sentenced individual abroad is granted.
Alternatively, such responsilbity rests with the Court of Appeal that has ordered the provionsal arrest or the Court of Appeal that has validated the arrest and even as a last resort turn to the Court of Appeal in Rome.
The attorney general has three months, once the documents have been received, to make the necessary checks and to present the indictment.
Taking note of the decision of the attorney, within ten days, one can present evidence to support their position. It is then up to the court of appeal, after having collected the information and having heard the prosecution of the defender but also, if appropriate, the person being extradited and the representative of the requesting state.
The sentence is can be appealed in the Court of Cassation.
Extradition has to be asked for, in each case, to agree or not agree with the extradition.
If the verdict is in favour of the extradition the individual is subjected to the precautionary measures, if the extradition is denied, the possible cautionary measures applied can be denied.
Once the judicial phase has terminated, an administrative phase begins.
Within 45 days of the receipt of the extradition sentence, the Minister of Justice has to express themself for or against the decision of the court. If 45 days have passed without the ruling, the person will be released.
The minister has the ability to deny the request for extadition even when faced with a favourable sentence and with the willingness of the person being extradited.
The state requesting the extradition will have to agree to the terms of the extradition with the minister, within a term (15 days).
In this case too, if within the stability perod the requesting state has not carried out the extradition of the individual, the person concerned will be released, having lost the effectiveness the measure of granting extradition.
When is the extradition denied
As one proceeds with the extradition some important policy points have to be respected:
- the sentence for which the extradition is required does not have to be opposed to the;
- fundamental principals of the Italian legal order;
- in cases where crimes require extradition one has to guarantee detention in line with the principal of respecting fundamental rights,
- it should be used in cases of political crimes.
- it should not be used for the death penalty it
- it has to be announced abroad, an irrevocable sentence of guilt or there has to be substantial evidence of guilt,
- the request does not have to be added to a criminal case in progress, or a pronounced sentence, in the Italian state (principal of the ne bis in idem: not two times for the same thing).
If there is reason to believe that once extradited the individual will be discriminated against because of their race, sex or relgiion or subjected to acts of percescution, the extradition can be refused.
The treaty with the United States means it will not grant extradition if it is a crime only in the requesitng state.
Having different sentence lengths one can in such a fashion protect the defendent, but also prevent individuals from taking refuge in the states with shorter sentences.
European warrant of arrest
The European warrant of arrest (M.A.E) is a special form and is simplified by extradition. It is governed by law 69/2005 and from the “European convention for the protection of human rights and fundamental freedoms.”
It is applicable only with other members of the European community.
Extradtition has to be given to a foreign state on the basis of a restricted measure of personal freedom or a sentence of imprisonment issued by the judicial authority.
The Italian authorities only have to ascertain the validity of the terms of the warrant, before proceeding to extradite the accused.
The forty day rule
According to article 16 comma 4 of the European Convention of Extradtion from the 13th December 1957, current from 1963 in Italy, the period of arrest for extradtion will not exceed forty days.
The date from which the 40 days are counted from is an object of discussion, because Italian regulation and European regulation are different with regard to this issue.
Article 715 from the Code of Criminal Procedure in fact states that the 40 days begin from the moment the reqeust is made by a state. The European Extradition Convention in fact indicates that the 40 days are calculated from the moment of arrest.
To resolve the question the Supreme Court has to consider the sixth penal section, with the sentence n. 9092/13 filed for the 25th February 2013.
The supreme court has decides, equipped with documents from the foreign state that justify the request for the extradition to Italy to the Italian Minister of Justice within 40 days of the arrest and not 40 days from the moment after receiving the request from a state.
After the 40 days in the absence of a request for extradition, and of the relative documents that justify the request, the international fugitive will have to be released.
In this case, international treaties prevail over national laws.
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