Extradition in Italy: definition and categorization
Extradition is a mechanism for international cooperation among sovereign States, it consists in the procedure by which a State (the requested State) turns over to another State (the requesting State) an individual charged with a crime committed in the requesting State, for purpose of being prosecuted or punished by final sentence.
Extradition is contingent upon "double incrimination" condition, namely the deed for which extradition is requested shall be considered a crime by the Italian law and the foreign law.
We speak of:
- active extradition or from overseas, when the extradition request is submitted by the Italian Authority, for crimes committed on the Italian soil;
- passive extradition or for overseas, when the Italian Authority grants it upon request from a foreign State.
Passive extradition in Italy
In order for the Italian court to favourably made the decision in regard to the request of passive extradition, the following conditions need to be met:
- a final conviction sentence issued overseas against the individual destined for extradition, alternatively strong evidence of guilt against the individual;
- for the same deed and against the same person for whom extradition has been requested there shall not be an ongoing criminal procedure, neither a final sentence shall be issued in the Italian State;
- the sentence for which request of extradition has been submitted shall not contain provisions contrary to the fundamental principles of the Italian State;
- there shall be no reason for which the individual destined for extradition will be subject to acts of persecution or discrimination, cruel, inhuman or humiliating punishments or treatments or to acts that constitute violation of the person's fundamental rights;
- for the crime for which extradition has been requested, it is necessary that the individual destined for extradition has not been subject to a procedure which has not ensured respect of fundamental rights;
- it must not involve any political crimes or crimes for which the requiring foreign State applies death penalty.
Extradition procedure from Italy to overseas
Passive extradition procedure consists of two phases: a jurisdictional phase and an administrative phase.
The first jurisdictional phase begins with transmission of request of extradition, together with all considerably relevant documents, from one foreign State to the Italian Minister of Justice.
Unless the Minister considers to immediately reject the request and unless the individual destined for extradition expressly agrees with being extradited, the Minister shall transmit the request and annexed documents to the General Prosecutor at the competent Court of Appeal of the defendant/offender's place of residence, or of the place in which the defendant/offender physically happens to be at the moment the request is submitted.
Extradition cannot be granted without favourable decision of the Court of Appeal.
Once the request is received, the General Prosecutor at the Court of Appeal shall summon the individual destined for extradition, mandatorily assisted by a lawyer, for purpose of identification and questioning him in regard to his eventual agreement with being extradited.
The concerned individual is informed that he is assisted by a public defender, however he may also appoint a private counsel.
Within three months from receipt of request, the General Prosecutor shall submit to the Registry of the Court of Appeal his own indictment. Notification of submission will be delivered to the individual destined for extradition, to his defender and to the eventual representative of the requesting Stare, they may have access to documents and lodge statements of case within 10 days from notification.
Once deadline elapses, the President of the Court of Appeal schedules the hearing for judgement by decree to be notified to the other parties at least 10 days in advance, otherwise it shall be void. The hearing held in chambers, is performed without public audience.
The Court of Appeal decides by a judgement delivered in chambers after obtaining information and disposing necessary verification, and after having heard the General Prosecutor, the concerned individual's defender and, if they show up, the individual for whom extradition is requested and the representative of the requesting State.
In the course of extradition procedure, it is possible that coercive measures are applied against the individual destined for extradition, as for instance preventive custody in prison or home detention.
Judgement may be brought before the Supreme Court (Court of Cassation), even for the subject matter.
The administrative phase of extradition procedure for overseas begins consequently to the concerned individual's acceptance, or subsequently to the judgement favourable to extradition.
Within 45 days from receipt of record which contains consent to extradition, or from appeal term deadline expiry notification, or from submission of judgement by the Supreme Court, the Minister of Justice shall deliver his final decision.
It is noteworthy that the Italian Minister of Justice may reject the extradition request, even if the concerned individual agreed with it or the Court of Appeal pronounced a favourable judgement.
If the Minister agrees wit the request, his decision is transmitted to the requesting State, with indication of place and date of handover of the individual destined for extradition. In case the requesting State does not take over the individual on the scheduled term, the extradition granting decree loses effectiveness and the concerned party shall be set free.
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.