Nicola Canestrini
February, 2nd, 2018 - Embassy of Canada
extradition.
law and practice
Nicola Canestrini
UniTrento, November 27 2019

Extradition
is the act by one jurisdiction of
delivering a person who
has been accused of committing a
crime in another jurisdiction or
has been convicted of a crime in
that other jurisdiction into the
custody of a law enforcement
agency of that other jurisdiction.
It is a cooperative law enforcement
process between the two
jurisdictions and depends on the
arrangements made between them.
(Wikipedia)

“rex in regno suo
est imperator”

mutual assistance
mutual recogition
sovereignity
cooperation on
political basis
discretionality
trust
cooperation of
judicial
authorities
“automatism”

legal frameworkIt. Consttution
art. 26
art. 10
art. 117
It. criminal procedure
code
artt. 696 ff.
(“international criminal
law”) . amended in 2017
extradition treaties and
conventions
European convention on
Extradition (1957; l. 300/1963)
European Convention on
judicial cooperation (1959; l.
215/1961)
EAW
Geneva convention
Europan convention on human
rights
..
It. Criminal Code
art. 13

art. 13 it. c.c.
Italian criminal law and International
Conventions
double criminality
Italian citizen (art. 26 Costituzione)
speciality principle

extradition
investigative
executive
active
passive
conventional
extraconventional

Italian Extradition System
“mixed” system
judicial guarantee
political
supervision and
decision (pretrial
detention!)

passive extradition
Court of Appeal
Court of Cassation
(merit of the case)
Ministry of Justice
1 instance administrative Court
2nd instance
administrative Court

Extradition proceeding
request of Ministry of
Justice General prosecutor
Court of Appeal
simplified
Ordinary proceeding
40 days / hearing

“Red
notice”
Interpol

Interpol
international police organization
1956
apporx 192 member
states
both supranational
and national offices
police cooperation
"Connecting police for
a safer world”

Interpol abuse?
Article2
.. To ensure and promote
the widest possible
mutual assistance
between all criminal
police authorities within
the limits of the laws
existing n the different
countries and in the
spirit of the “Universal
Declaration of Human
Rights”
Article 3
It is strictly forbidden for
the Organization to
undertake any intervention
or activities of a political,
military, religious or racial
character.

“request of provisional arrest”
“match” in the database
(“red notice”)
search, seizure and
arrest
habeas corpus 48 h + judicial
decision 96h “provisional” pretrial detention
chamber hearing
consent o dissent to the extradition (art 717 c.p.p.)
simplified procedure
ordinary procedure
40 days / hearing

pretrial detention
arrest (art 716 c.p.p.) - habeas corpus - validation by the
Court
“provisional pretrial detention”
conditions: risk of escape and prevision of favourable
decision on extradition
Ministry of Justice has to ask for it within10 days 716/4
c.p.p. / can ask for release 718 c.p.p.
max. pretrial detention (12 - 18 months + 3)
pretrial detention order can be submitted to the Court of
Cassation (breach of law, 15 days 719 c.p.p.)

probable cause?
investigative extradition
extraconventional (no
extradition treaty)
conventional?
(Cass. pen., 43170/14)

“Needs of international
criminal law enforcement
cannot prejudice
fundamental rights”
Corte Costituzionale, sentenza 280/1985

extradition is refused
(pretrial detention! – compensation!)
1. political offence (art. 26 / 10 Costituzione, art. 698 c.p.p.)
2. unfair trial or judgement against fundamental rights(art. 705/2
c.p.p.)
3. persecution, discrimination, cruel or inhuman penalties or
detention, risk for fundamental rights (art. 705/3 -> 698 c.p.p.)
4. great risk of exeptionally serious consequences due to age or
health conditions
evidence? NGO’s
(Corte Edu, caso Saadi c. Italia; Cass.pen., 32685/10)

1. political offence
exception
art 10, 26 It. Cost.: political aim of the crime, if
inspired by values of liberty and democracy
protected by It. constitution (Sez. 6, n. 31123 del
19/06/2003, Baazaoui)

2. unfair trial / human rights
violation
Constitution
ECHR
UN International Covenant on
Civil and Political Rights
trail in
absentia?
juveniles?
nullum crimen
sine lege?
age, health
sanctions?
personal
liability?

3. persecution, discrimination, cruel
or inhuman penalties or detention,
risk for fundamental rights
law or practice?
impunity?
widespread and not
episodic
in abstract?
diplomatic
assurances?
sources of
information?

Corte Appello Venezia, maggio 2016
(in memoriam!)

Corte di Cassazione, IV, dicembre 2016

handbrakes
international
protection
ECHR
interim measure
“rule 39”

consular offices?
pretrial
detention?
political
intervention?hearing?

EAW «fundamental
rights defense»