Extradition is the process whereby one country (the requested state) surrenders a suspected or convicted criminal to another nation or state (the requesting state).
For the purposes of this introduction to Italian extradition laws, only the so-called passive extradition will be considered, which is the extradition from Italy to a foreign country (for example, the United States of America).
The Italian legal system is that of a civil law State governed by codified law.
Under Italian law, extradition is regulated by:
– the Italian Constitution (Articles 10 and 26),
– ordinary legislation (Article 13 Criminal Code and Articles 696 to 722 Code of Criminal Procedure),
– international conventions (which have to be ratified by the Italian Parliament) and finally
– general principles of international law.
The fundamental principle is that extradition follows the rules of the treaty signed with the requesting state, if there is one.
For example, extradition from Italy of an American citizen may be regulated the Treaty on Extradition between the United States of America and Italy, signed in Rome on October 13, 1983 (ratified 1984), as updated by the agreement signed following the EU-US Treaty on extradition, signed in Washington on 25 June 2003 (ratified 2009). As clearly stated by the United States Court of Appeals for the Third Circuit (No. 96-5215, MEHMET SEMIH SIDALI vs. USA), the right of a foreign sovereign to demand and obtain extradition of an accused criminal is created by treaty, and in the absence of a treaty the government has no duty to surrender a fugitive to a foreign government. In 2011, Italy has extradition treaties with following countries: Argentina, Australia, The Bahamas, Bolivia, Brasil, Canada, Costa Rica, Cuba, Kenya, Lesotho, New Zealand, Paraguay, Peru, The Vatican, Singapore, Sri Lanka, The United States of America and Uruguay.
Even if there is no treaty with requesting country, extradition is still possible under Italian law, and rules of the Italian Code of Procedure will be applied. But the Court can evaluate the lack of probable cause.
Basically, signing states of the treaty obligate themselves to surrender an alleged criminal to a foreign state, derogating from the principle of sovereignty (which means that every state has legal authority over the people within its borders).
By enacting laws or concluding treaties or agreements, countries determine the conditions under which they may entertain or deny extradition requests.
Common bars to extradition include:
- Failure to fulfill dual criminality (generally the act for which extradition is sought must constitute a crime punishable by some minimum penalty in both the requesting and the requested parties);
- Political nature of the alleged crime (most countries refuse to extradite suspects of political crimes);
- Possibility of certain forms of punishment (some countries refuse extradition on grounds that the person, if extradited, may receive capital punishment or face torture or inhumane treatment). Please note that Italy is a party of to the European Convention for Human rights and will not allow extradition if the death penalty may be imposed and cannot extradite people where they would be at significant risk of an unfair trial, being tortured inhumanely or degradingly treated or punished; in march, 2015, the Italian High Court refused extradition to Serbia for the risk of inhuman treatment in serbian prisons due to their overcrowding, affirming that the risk if inhuman treatment is enough to refuse extradition.
- Jurisdiction (jurisdiction over a crime can be invoked to refuse extradition. In particular, the fact that the person in question is a nation’s own citizen causes that country to have jurisdiction).
- Citizenship of the person in question – some nations refuse to extradite their own citizens, holding trials for the persons themselves.
These restrictions are normally clearly specified in the extradition treaties that a government has ratified.
If there is no treaty, extradition is still possible under Italian law and the rules of the Italian Code of Criminal Procedure will be applied (articles 697 ff. criminal procedure code). Basically, the main difference is that in case of treaty based, trial related extradition, Italy cannot evaluate the lack of evidences (probable cause) in order to deny extradition (and it can evaluate same lack of probable cause in case there is no treaty with the requesting country).
As a country with a rule of law, extradition decisions in Italy are subject to review by the Court of Appeal, which conducts a limited inquiry. Its decision can be appealed before the High Court (see Italian extradition rules codified in the Italian Code of Criminal Procedure ).
The final decision to extradite is political (at least, extradition is an executive, not a judicial, prerogative) and belongs to the Secretary of Justice. If the Secretary of Justice confirms the extradition granted by a judicial authority, the decision can still be appealed before the administrative court. Please note that even the precautionary measure of pretrial detention could be cancelled by the Secretary of Justice.
Extradition has to be refused in case of risk of persecution or discrimination on grounds of race, religion, sex, nationality, language, political opinions or social or personal conditions, or cruel, inhuman, degrading penalties or treatments, or in any case in which actions or proceedings could violate human rights of the accused or convicted person.
It should be considered that in particular cases it is possible to request the suspension of extradition proceedings to the European Court of Human Rights pursuant to Rule 39 of its Regulations. The Court indicates interim measures to any State party to the Convention. Interim measures are urgent measures which apply only where there is an imminent risk of irreparable harm. Such measures are decided in connection with proceedings before the Court without prejudging any subsequent decisions on the admissibility or merits of the case in question. The Court’s interim measures are sometimes the only way to make national authorities adhere to international standards and respect human rights (see more at http://www.echr.coe.int/Documents/FS_Interim_measures_ENG.pdf).
Nicola Canestrini is an Italian criminal lawyer and the managing partner at Canestrini Law Firm. He is also the Chairman of the Italian Peace Centre and a member of Fair Trials’ Legal Experts Advisory Panel (LEAP).