Extradition to and from Italy: meaning, how it works and defence
Extradition is a complex discipline that, by its nature, requires the intervention of lawyers specialised in extradition to and from Italy, in order to successfully resolve any situation.
The team of ILA – International Lawyers Associates deals with both active and passive extradition, making it one of the most qualified in the field
The meaning of extradition
Extradition, governed by Italian criminal law in Articles 697 -720 of the Italian Code of Criminal Procedure, as well as by international conventions and customs, can be defined as the surrender of a subject by a state, in whose territory this subject is located, to another state (known as the “requesting” state) that has made a request for the purpose of prosecuting the subject or enforcing a conviction or sentence.
How extradition to and from Italy works
Italy, over the years, has entered into several bilateral extradition agreements as part of the instruments aimed at intensifying and regulating the cooperation relations established by Italy with countries outside the European Union, with which it pursues the objective of improving international judicial cooperation in the fight against crime. Among these, it seems indispensable to mention the extradition treaty between Italy and China; this treaty consists of 21 articles and provides for the mutual commitment of the parties to hand over wanted persons, in order to conduct criminal proceedings or to allow the execution of a sentence.
In this case, extradition is granted for offences punishable by a restrictive sentence of at least one year or ‘when the request for extradition is made to execute a sentence of imprisonment and at the time the request is submitted, the remaining term of the sentence is at least six months’.
A relaxation of the general principle of double criminality is provided for in the case of customs, tax or financial offences, for which extradition is carried out even if the requested party does not provide for the same criminal configuration of these offences.
The treaty also regulates the possible refusal of extradition, which, however, must be motivated to the other State, with optional reasons, i.e. if the offence is subject to the criminal jurisdiction of the requested State in accordance with its domestic law and the person will be subject to criminal proceedings for the same offence for which extradition is requested or in the case in which extradition would not be compatible – due to the seriousness of the offence – with the age or state of health of the person, and identifies the authorities of each Country in charge of transmitting the necessary requests, i.e. the Italian Ministry of Justice and the Chinese Ministry of Foreign Affairs.
Obviously, in case of urgency, there can be a provisional arrest of the person pending the extradition request; subsequently, if extradition is granted, there is a 40-day period to hand over the person from the moment of the communication of the outcome of the request.
According to the agreements between Italy and China, the extradition treaty is of indefinite duration!
As can be deduced, the institution of extradition in general, comes into being with a view to increasing international judicial cooperation, and is governed by a detailed and constantly evolving procedure; for this reason, therefore, if assistance is required, it is advisable to contact a leading criminal lawyer and professional expert in the field.
Extradition is a safeguard in that it prevents the surrender to foreign authorities for the execution of a sentence or other restrictive measure from taking place by other expedients that are not as protected!
In any case, criminal proceedings must never become an instrument of political persecution, which is why our firm offers the services of some of the most experienced extradition lawyers at the moment.
In the context of increasing international judicial cooperation, a fundamental role is undoubtedly played by Interpol as an international criminal police organisation. In fact, when a person has committed a crime and is not found in the same territory, the central authority sends an alert to Interpol, which enters the name of the perpetrator in the database, so that the police forces of all the countries in the world will arrest him once the fugitive has been found.
Subsequently, extradition will take place before the judge of the country where the person is arrested, and the legitimacy of the international arrest warrant will be assessed; if the international arrest warrant is not legitimately issued, the arrested person must be released immediately. Otherwise, if everything has been done legitimately, one will be extradited to the requesting country to face trial or to serve the sentence.
Lately, moreover, the instrument of the Red Notice is widely used, which is a request sent to police forces around the world in order to arrange for the international arrest of a person on the basis of a restraining order issued by a national or international judicial authority. The application of the Red Notice is made in respect of wanted persons to whom an international arrest warrant is to be applied for acts committed in another State, in order obviously to guarantee extradition. This request can only be issued if the offence concerned is a common law offence of particular gravity, and if the request is of interest for the purposes of international police cooperation.
In this case, in almost all countries of the World, the application of the red notice by Interpol is considered as a valid request for provisional arrest, in particular if the request for arrest comes from a State with which Italy has an Extradition Treaty
As is well known, our legal system provides for two types of extradition:
Passive extradition occurs when it is the foreign state that requests extradition from the Italian state.
Active extradition, on the other hand, occurs when it is Italy that submits the extradition request to another country.
How and whom to turn to in the event of extradition
Generally speaking, on this subject, the question most frequently put to the criminal defence lawyer, who is necessarily a qualified professional on the subject, concerns the prerequisites and limits to the admissibility of this institution.
For the purposes of the surrender of persons wanted for the requirements of criminal justice, extradition is not permitted if the fact that is the subject of the extradition request is not provided for as an offence by Italian or foreign law; it may, however, be granted or offered, even for offences not provided for in international conventions, provided that these do not expressly prohibit it.
In this regard, the Court of Cassation, in a very famous judgment, well known to every criminal lawyer who collaborates with our International Lawyers Associates, specified that the requirement of double criminality, as per Article 13 of the Criminal Code, does not postulate the exact correspondence of the normative configuration and treatment of the case, but only the applicability of the criminal sanction, in both legal systems, to the facts for which proceedings are being conducted (Criminal Cassation, Section VI, judgment no. 42777 of 13 October 2014). What is sufficient, therefore, is that the fact is regarded as a criminal offence by both states involved. It is in any case irrelevant whether the offence is punished differently or whether different rules apply for the application of mitigating or aggravating circumstances.
Nor does the different nomen iuris matter, as the mere provision of the fact as an offence is sufficient.
Moreover, the extradition of the citizen is not permitted, unless expressly permitted in international conventions.
In addition to this, the state requesting the extradition of a convicted person (executive extradition) or an accused person (procedural extradition) may not proceed against them for an act that predates or simply differs from the one for which extradition was granted, unless the person concerned gives his or her express consent.
It should also be recalled that extradition, which is subject to the ne bis in idem principle, is prohibited if requested for political offences, and especially prohibited if there is reason to believe that the requested person will be subjected to acts constituting a violation of one of the fundamental rights of the person!
On this issue, the European Court of Human Rights has repeatedly stated that the suffering inflicted must never exceed the inevitable element of distress associated with any form of legitimate punitive treatment.
States have an obligation to ensure that any extradited person is detained in conditions that respect his or her dignity, and that the manner of execution of the sentence does not cause him or her distress and affliction of an intensity that exceeds the inevitable level of suffering inherent in detention; the criminal lawyer specialising in extradition is obviously the greatest guarantor of this requirement.
The procedure for granting extradition consists of several stages, both administrative and jurisdictional in nature, which is why serious and specialised assistance is required; assistance that our team, which is constantly updated on the subject, is able to provide through capillary support throughout the procedure.
The possibility of handling an extradition procedure in the best possible way exists and is a real possibility!
The execution in Italy of foreign criminal judgments
The institution of the enforcement in Italy of foreign criminal judgments, coming from judicial authorities of non-EU states, is governed by Articles 730-741 of the Code of Criminal Procedure, and finds its raison d’être, as it is for extradition, in the perspective of an improvement of international jurisdictional relations.
Every criminal lawyer working in our team is up-to-date with the most recent legislative reforms on the subject and, in particular, Legislative Decree no. 161 of 7.9.2010, which transposed Framework Decision 2008/909/JHA for the application of the principle of mutual recognition of criminal judgments imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union.
In this regard, it is necessary to emphasise how the recognition of the effects of foreign criminal sentences is currently envisaged both as a traditional institution under Article 12 of the Criminal Code and as an instrument regulated by individual international treaties, and finally, more recently, as an innovative instrument of cooperation limited to the countries of the European Union.
Transmission of the request under Article 12(2) of the Criminal Code
As is well known to practitioners, in the absence of international agreements, the traditional type of recognition does not equate this act with the Italian one, but, rather, has the purpose of assuming it as a legal historical fact for certain effects that are peremptorily provided for, such as recidivism!
In general, the procedure involves several subjects such as the Minister of Justice, the Attorney General and the Court of Appeal.
The public prosecutor, if the foreign judgment is to be recognised for the effects provided for in Article 12(1)(1), (2) and (3) of the Criminal Code, initiates the relevant proceedings with a request to the court of appeal. To this end, he may, also through the Ministry of Justice, ask the competent foreign authorities for the information he deems appropriate.
When the public prosecutor is informed by the foreign authority, also through the Ministry of Justice, of the existence of a criminal conviction pronounced abroad, he shall request that it be transmitted to the foreign authority in accordance with the forms provided for by the international conventions in force with the foreign State or, failing that, by rogatory, for the purposes of recognition pursuant to paragraph 2.
The request to the Court of Appeal contains the specification of the effects for which recognition is sought.
Also in this case the procedure is quite complex, therefore the assistance of professionals such as those employed in International Lawyers Associates is essential.