When an individual, subject to an international arrest warrant, is detained pending extradition, their passport is confiscated. If the precautionary measure is lifted, explicit request is necessary to reclaim it.
Requesting Passport Activation: How and Why?
During an extradition procedure, it is possible to request temporary or limited reactivation of the passport from the competent authorities. Such a request can be justified for legitimate reasons such as:
- Family emergencies
- Urgent medical treatments
- Exceptional circumstances
Each case must be documented. If the need for passport recovery is tied to contingent situations, such as attending legal hearings or necessary medical appointments, the person’s legal representatives can negotiate agreements with the authorities to temporarily use the passport.
International Arrest Warrant
While the term “international arrest warrant” might sound daunting, it is not solely for criminals.
The specific determination of crimes for which an international arrest warrant is issued can vary based on the requesting country’s national legislation and international agreements.
The authorities must respect the procedural rights of the suspects or defendants.
Crimes considered heinous in some states, warranting arrest, might not be legally relevant in others. If a person with an international arrest warrant is detained in Italy, assessments are made to determine if they pose a threat to society.
It’s crucial that the act is punishable under both legal systems (dual criminality requirement).
Extradition is granted subject to verification of the charges and the potential consequences of transfer to the requesting country. If the charges do not constitute a crime in Italy, or if the transfer would result in unfair or inhumane treatment (or, in the worst-case scenario, the death penalty), our country will refuse to extradite the individual.
Another possibility is that, despite the initial desire for arrest, once the requesting country receives notification that the individual has been detained, they fail to send the necessary documentation in time to validate the arrest and allow extradition.
In such situations, the detained person must be released and regain possession of their passport since, with the disappearance of precautionary measures, they have the freedom to leave the country whenever they wish.
In Italy, after the arrest and subsequent passport withdrawal, the foreign state is informed of the detention.
The process leading to the release or extradition of the defendant begins at this point.
Within forty days of the arrest, the foreign state must submit an extradition request with attachments:
- Detailed personal information confirming the individual’s identity and nationality without doubt.
- Copy of the restrictive measure or, if issued, a copy of the sentencing for a prison term.
- Report on the crimes committed by the individual, specifying when and where they occurred, and the legal qualification given to the acts.
- Exact description of the applicable laws for the specific crime.
It must always be indicated if the crime could carry the death penalty because, in such cases, if the requesting state does not assure that it won’t be applied, Italy cannot proceed with the extradition.
Forty Days for Legal Judgment on Detainees
The practice in Italy of counting forty days from the arrest, not from the communication to the requesting state, stems from the 2013 ruling (No. 9092) by the Court of Cassation, VI Criminal Section, applying Articles 12 and 16 of the European Convention on Extradition.
As a provisional measure, the arrest can cease after 18 days if the foreign state does not send the necessary documents, and in any case, it must not exceed the total of forty days.
When the precautionary measure is revoked, there’s no longer a need to retain the passport as the travel ban no longer applies.
While the extradition proceedings are pending, the person can be free until contrary provisions are made.
Already in 2001, the VI Criminal Section of the Cassation, with ruling No. 34796 of July 5, had annulled the Court of Appeal’s order, which, based on the pending extradition proceedings, had denied the return of a passport.
The Court had reiterated that since the citizen’s delivery was suspended and the precautionary measures were revoked, the passport had to be returned without any doubt.
Extradition Suspended, Passport Returned
If extradition is suspended, the passport can be returned even if the extradition proceedings continue. This was established by ruling No. 34796 of September 25, 2001, by the VI Criminal Section of the Cassation.
It might happen that an individual is arrested, and the extradition process begins, but then a ministerial decree suspends the extradition.
In that case, one can request the revocation of the coercive measure and the return of the passport, which is no longer justified for seizure.
The Court of Appeal had rejected the passport return request assuming that the extradition proceedings were still pending. The Cassation had a different opinion.
New Arrest for Severe Cases
In particularly serious cases, the European Convention on Extradition allows the possibility of by passing the forty-day limit through a new arrest.
The Cassation, with ruling No. 1395 of 1993, emphasized that the receiving state has the power-duty to implement “any measure deemed necessary” to prevent the escape of the suspect or the sought individual.
It’s crucial to consult a lawyer experienced in international law and extradition procedures to evaluate the available options based on the specific case.
Boccadutri International Law Firm has expertise in cross-border criminal law. Thanks to our lawyers, we can provide comprehensive assistance in every stage of the extradition process, supporting detainees in their native language. For further information and advice, you can contact our Criminal Law Department.
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