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Extradition. Law and practice.

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Italian extradition proceeding.

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Extradition. Law and practice.

  1. 1. Nicola Canestrini February, 2nd, 2018 - Embassy of Canada extradition. law and practice Nicola Canestrini UniTrento, November 27 2019
  2. 2. 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)
  3. 3. “rex in regno suo est imperator”
  4. 4. mutual assistance mutual recogition sovereignity   cooperation on political basis discretionality trust   cooperation of judicial authorities   “automatism”
  5. 5. 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
  6. 6. art. 13 it. c.c.   Italian criminal law and International Conventions   double criminality   Italian citizen (art. 26 Costituzione) speciality principle
  7. 7. extradition investigative executive active passive conventional extraconventional
  8. 8. Italian Extradition System “mixed” system   judicial guarantee   political supervision and decision (pretrial detention!)
  9. 9. passive extradition Court of Appeal Court of Cassation (merit of the case) Ministry of Justice 1 instance administrative Court 2nd instance administrative Court
  10. 10. Extradition proceeding request of Ministry of Justice General prosecutor Court of Appeal simplified Ordinary proceeding 40 days / hearing
  11. 11. “Red notice” Interpol
  12. 12. Interpol international police organization   1956   apporx 192 member states   both supranational and national offices   police cooperation "Connecting police for a safer world”
  13. 13. 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.
  14. 14. “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
  15. 15. 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.)
  16. 16. probable cause?   investigative extradition   extraconventional (no extradition treaty)   conventional? (Cass. pen., 43170/14)
  17. 17. “Needs of international criminal law enforcement cannot prejudice fundamental rights” Corte Costituzionale, sentenza 280/1985
  18. 18. 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)
  19. 19. 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)
  20. 20. 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?
  21. 21. 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?
  22. 22. Corte Appello Venezia, maggio 2016 (in memoriam!)
  23. 23. Corte di Cassazione, IV, dicembre 2016
  24. 24. handbrakes international protection ECHR interim measure “rule 39”
  25. 25. consular offices? pretrial detention? political intervention?hearing?
  26. 26. EAW «fundamental rights defense»

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