Extradition is a form of judicial cooperation between states, involving the surrender of an individual who has taken refuge within one state’s territory to another state for the purpose of facing criminal prosecution (extradition for trial) or serving criminal sanctions if already convicted (extradition for enforcement).
General Characteristics of Extradition
Types of Extradition: Extradition can be categorized as active (from a foreign state) or passive (to a foreign state).
- Legal Regulation: In Italy, extradition is governed by Article 13 of the Italian Penal Code, which states that extradition is regulated by Italian criminal law, international conventions, and international customs.
- Requirements: Extradition is not permitted if the offense in question is not considered a crime under both Italian law and the foreign state’s law. However, it may be granted or offered even for offenses not covered by conventions, provided there are no explicit prohibitions.
- Citizens: Extradition of Italian citizens is allowed only if expressly provided for in international conventions.
- Limitations: Extradition is subject to certain limitations. The Italian Constitution prohibits extradition for political offenses, although there are varying interpretations of the scope of this prohibition. Additionally, extradition is prohibited if the foreign legal system imposes the death penalty for the offense in question.
Italy has concluded numerous bilateral extradition agreements with various countries since 1873. Moreover, Italy is a party to the 1957 European Convention on Extradition and Mutual Assistance in Criminal Matters, which involves numerous member states.
In the case of passive extradition, the Minister of Justice is responsible for granting extradition following a decision by the competent judge (Court of Appeals), as stipulated in Article 697 of the Italian Code of Criminal Procedure. Extradition is the only means to surrender an individual to a foreign authority for the execution of a sentence.
Among the codicist principles that govern the extradition process are:
- Double Criminality: Extradition requires that the offense is punishable under the laws of both the requesting and surrendering states.
- Specialty: Extradition granted for a specific offense cannot be extended to a different offense committed previously.
- Ne Bis in Idem: Extradition is not allowed for an offense for which the individual has already been tried and convicted or acquitted by a final judgment in the surrendering state.
- Principle of Specialty: If proceedings for the same offense are ongoing, they take precedence over the foreign extradition request.
Article 13 of the Italian Penal Code and Article 26 of the Italian Constitution establish a prohibition on the extradition of Italian citizens, unless international conventions provide otherwise.
The request for extradition from the foreign state is submitted under Article 700 of the Italian Code of Criminal Procedure. The Court of Appeals has jurisdiction over the in-camera proceedings, in which the foreign state can also participate. The judge verifies the legitimacy of the request and the absence of impediments to extradition.
Preventive measures are provided for in Articles 714-719 of the Italian Code of Criminal Procedure, with the Minister of Justice as the promoter.
In the event of a favorable extradition decision, the matter is referred back to the Minister, who may still refuse extradition for political reasons, as the opinion of the Court of Appeals is not binding.
In the case of active extradition, the Minister initiates a request, which can be either voluntary or at the request of the Prosecutor General. However, this method may raise concerns because political agreements between the Ministry of Justice and the foreign state can influence extradition and raise questions about fundamental principles.
In conclusion, extradition is a complex process involving numerous legal and procedural aspects. Italy has entered into international agreements and follows codicist principles to ensure proper extradition in appropriate cases. However, questions and debates remain regarding the limits and modalities of extradition, particularly in the context of active extradition.