Italy: A Guide To Extradition

Last Updated: 20 November 2017
Article by Calogero Boccadutri

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:

  1. the sentence for which the extradition is required does not have to be opposed to the;
  2. fundamental principals of the Italian legal order;
  3. in cases where crimes require extradition one has to guarantee detention in line with the principal of respecting fundamental rights,
  4. it should be used in cases of political crimes.
  5. it should not be used for the death penalty it
  6. it has to be announced abroad, an irrevocable sentence of guilt or there has to be substantial evidence of guilt,
  7. 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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions