Subsistence of the principle of double punishability for the application of the extradition procedure

For cases of extradition, the first evaluation to be carried out is that related to classification

From a codistic point of view, of the type of crime found in foreign law to assess the existence of the subsistence of the principle of double punishability, an element that is unaffordable for the application of the discipline of extradition on the basis of possible agreements Bilateral and international law.

However, any legitimacy of the request for extradition must be discussed before the competent Court of Appeal (and possibly before the Court of Cassation) to avoid the application of a prison sentence on the basis of a crime that, first phase, does not find any type of confirmation (or finding an exclusively partial confirmation) in the Italian legal system and, therefore, for a clear violation and non-existence of the principle of double punishability (between the requesting State and the State to which the extradition request is made) .

In the case of an extradition procedure requested by the Asian states of Singapore and Hong Kong, it should be noted that, to date, there is no bilateral agreement between Italy and Singapore since, with a note dated December 29, 1999, the Singapore government announced that “It is not considered bound by the restrictions derived from the Treaties stipulated by Great Britain with Italy in the absence of exchange of notes after August 9, 1965, which establishes the intention of both parties to be bound by said treaty »(Agreement between Italy and Great Britain for the mutual extradition of malefactors (Rome, 1873).

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It is specified in the point that, in accordance with art. 13 of the Criminal Code, extradition rules are governed by Italian criminal law, international conventions and customs.
Subsistence of the principle of double punishability for the application of the extradition procedure

Verified the lack of recognition of the bilateral convention by Singapore, the mutual relations between the States will certainly be regulated by international uses, with an enormous possibility on the part of the Court of Appeal to carry out a more careful evaluation (and less restricted by the automatisms of bilateral agreements) of the tracks to continue or descend with the extradition request that Singapore may send you.

On the other hand, with regard to extradition relations between Hong Kong and Singapore, they are regulated on the basis of the Hong Kong, China-Singapore extradition treaty which, in addition to providing for the principle of double criminality and specifying crimes for which the grant of extradition, expressly established, in art. 2 paragraph 3, that extradition will be granted only in the case of a conviction with a sentence of more than 4 months in prison.

New evaluations will have to be made regarding the bilateral relations that exist to date between Italy and Hong Kong, especially since they are regulated by a bilateral agreement between the Government of the Hong Kong Special Administrative Region of the People's Republic of China and the Government of the Italian Republic on the transfer of convicted persons.

In this case, in accordance with art. 4, the requirements for extradition can be:

  • The Subsistence of the punishability principle double the conduct in both states;
  • A sentence under the penalty of deprivation of personal liberty for at least one year to be fulfilled at the time of the request;
  • Consent to extradition by both States;
  • The consent to the transfer by the sentenced person or, in case of incapacity thereof, the consent expressed by a person authorized to act on behalf of and on behalf of the convicted person.

 

In this case, the formal request for extradition and all the supporting documentation will be sent to Italy through the diplomatic channel after the General Directorate of Legal Affairs of the Ministry of the Nation has verified compliance with all the formal requirements demanded by the treaty applicable with Italy.

Extradition shall not be granted exclusively on the basis of the provisions of the bilateral treaty and international law, if the offense for which extradition is required is considered a political offense.

If the requested State has serious reasons to believe that the request, based on a common crime, has been submitted for the purpose of prosecuting or punishing a person for reasons of religion, race, nationality or political opinion.

If, in accordance with the law of the requesting State or the requested State, the prosecution or sanction is prescribed.

At this point, the assumptions on which the extradition regime would apply, if requested by one of its States, show that the extradition procedure to Italy would follow the jurisdictional procedure provided for in Articles 697-719 cpp

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Extradition with Asia, very interesting
  • Augusto Morron Bari
5

Summary

It is specified in the point that, in accordance with art. 13 of the Criminal Code, extradition rules are governed by Italian criminal law, international conventions and customs.

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