Extradition

Extradition, governed by Italian criminal law in articles 697 to 720 of the Italian Penal Code, as well as by international conventions and customs, can be defined as the surrender of a subject by a State, in whose territory this subject is found, to an other State (called "applicant") that has requested it to submit said subject to sentence or to the fulfillment of a disposition or sentence of conviction.

Over the years, Italy has signed various bilateral extradition agreements as part of the instruments aimed at intensifying and regulating the cooperative relations established by Italy with countries outside the European Union, with which it is intended to improve international judicial cooperation and fight crime. Among these, it seems essential to recall the extradition treaty between Italy and China; It consists of 21 articles and provides for the mutual commitment of the parties to surrender the wanted persons, initiate a criminal process or allow the execution of a sentence.

In this case, extradition is granted for crimes punishable by restrictive penalties of at least one year or “when the extradition request is made to carry out a custodial sentence and at the time of submitting the request, the duration of the residual sentence is at less 6 months «.

A temperament of the general principle of double criminality is foreseen for crimes of a customs, fiscal or financial nature, for which extradition is carried out even if the required one does not contemplate the same criminal configuration as said crimes.

The treaty also regulates the possible denial of extradition, which in any case must be motivated by the other State, with optional causes, or if the crime is subject to the criminal jurisdiction of the requested State in accordance with its domestic law and the person be subject to criminal proceedings for the same crime for which the extradition is requested or in the event that the extradition is not compatible - due to the seriousness of the crime - with the age or state of health of the person, and identifies the authorities of each country in charge of the transmission of the necessary requests, namely the Italian Ministry of Justice and the Ministry of Foreign Affairs of China.

Obviously, in urgent cases, there may be the temporary detention of the person pending the request for extradition, subsequently, if the extradition is granted, there are 40 days to deliver the person from the moment of notification of the result of the request.
According to the agreements between Italy and China, the extradition treaty has an indefinite duration!

As can be deduced, therefore, the extradition institute in general, was born from the perspective of a growing international judicial collaboration, and is regulated by a detailed and constantly evolving procedure; therefore, if assistance is required, it is advisable to contact an important criminal lawyer, as well as a professional expert in the matter.

Extradition is from the point of view of the guarantor since it prevents the surrender to foreign authorities for the execution of the sentence or other restrictive measure with other files that are not equally protected.

In any case, the criminal process should never become an instrument of political persecution, which is why our firm offers the services of some of the most experienced lawyers specialized in extradition of the moment.

The persuasion of not finding an inch of land that forgives real crimes would be a very effective means of preventing them.

In the context of growing international judicial cooperation, Interpol as an international criminal police organization undoubtedly plays a key role. Indeed, when a person has committed a crime and is not in the same territory, the central authority issues a report to Interpol in which the name of the person who committed the crime is entered in the database so that the forces the order of all the countries of the world will proceed with the arrest once the fugitive is found

Subsequently, therefore, the extradition sentence will be executed before the Judge of the nation of the place where he is detained, and the legitimacy of the international arrest warrant will be assessed; In the event that the international arrest warrant is not legitimately issued, the detained person must be released immediately. Otherwise, if everything has been done legitimately, he will be extradited to the requesting country to face trial or serve his sentence.

Lately, however, the Red Notice tool is widely used, which is a request sent to police forces around the world to provide for the arrest of a person internationally on the basis of a provision that restricts personal freedom. issued by a national or international judicial authority. The application of the Red Notice is carried out against wanted persons who must be requested an international arrest warrant for acts committed in another State, in order to evidently guarantee extradition. This request may only be published if the offense in question is a common law offense of particular gravity and if the request is of interest for the purposes of international police cooperation.

In this case, in almost every country in the world the application of the red notice by Interpol is considered a valid request for provisional arrest, particularly in the event that the request for arrest comes from a

State with which Italy has concluded an EXTRADITION treaty

As is well known, then, our legal system provides for two types of extradition: passive, in which it is the foreign state that requests the extradition from the Italian State, and active, in which Italy submits the extradition. application to another country.

Generally, on this subject, the most frequent question to the criminal defense lawyer, as well as to the professional necessarily qualified in the matter, refers to the conditions and limits for the granting of this institution.

Well, for the purpose of surrendering wanted persons for criminal justice purposes, extradition is not allowed, if the fact that is the object of the extradition request is not provided as a crime by Italian law and by foreign law; This, however, can be granted or offered, even for crimes not provided for in international conventions, as long as they do not expressly prohibit it.

In this regard, the Court of Cassation, in a very famous judgment, well known by every criminal lawyer who collaborates with our International Lawyers Associates firm, specified that the requirement of double criminality, in accordance with art. 13 cod pen. does not postulate the exact correspondence of the normative configuration and the treatment of the case, but only the applicability of the criminal sanction, in both legal systems, to the acts for which it is proceeded (Criminal Cassation, Section VI, judgment no. 2014). What is sufficient, therefore, is that the act is considered a crime by both States involved. However, it is irrelevant whether the crime is punished differently or whether a different discipline is provided for the application of mitigating or aggravating circumstances.

Even the different nomen iuris do not matter, the mere provision of the act as a crime is sufficient.
In addition, the extradition of the citizen is not allowed, unless it is expressly allowed in international conventions.

In addition, the State requesting the extradition of a convicted person (executive extradition) or of a defendant (procedural extradition) cannot proceed against him for a fact that is earlier or simply different from the one for which the extradition was granted. interested party gives their explicit consent.

Likewise, it should be remembered that extradition, subject to the ne bis in idem principle, is prohibited if requested for political crimes, and above all prohibited if there are reasons to believe that the person sought will be subjected to acts that constitute the violation of one of the fundamental rights of the person!

On the subject, the European Court of Human Rights has repeatedly reiterated that the suffering inflicted must never exceed that unavoidable element of suffering related to any form of legitimate punitive treatment.

The States have the obligation to ensure that every extradited person is detained in conditions that respect their dignity, and that the manner in which the sentence is carried out does not cause anguish and anguish of greater intensity than the inevitable level of suffering inherent in the detention. the criminal lawyer specialized in extradition is obviously the main guarantor of this need.

The procedure for granting extradition consists of several stages, both administrative and judicial, which requires serious and specialized assistance; assistance that our team, constantly updated on the matter, is able to provide through extensive support that is provided throughout the process,

The possibility of managing an extradition procedure in the best possible way exists and it is a concrete possibility!

The institution of the execution in Italy of foreign criminal sentences, originated by judicial authorities of States not belonging to the European Union, is governed by articles 730-741 CPP, and finds its own reason for being, as well as for extradition, with a view to improving international judicial relations.

All the lawyers who collaborate in our team are updated on what have been the most recent legislative reforms in the matter and, in particular, Legislative Decree 7.9.2010, n. 161, which implemented Framework Decision 2008/909 / JHA for the application of the principle of mutual recognition of criminal sentences that impose prison sentences or custodial measures for the purpose of their execution in the European Union.

In this regard, it is necessary to underline how the recognition of the effects of foreign criminal convictions is currently conceived both as a traditional institution in accordance with article 12 of the Criminal Code, as an instrument regulated by individual international treaties, and finally, more recently. , as an innovative instrument of cooperation, limited to the countries of the European Union.

As professionals in the sector know, in the absence of international agreements, traditional recognition does not equate this act with the Italian one, but rather has the purpose of assuming it as a historical legal fact for some imperative purposes, such as recidivism!

In general, the procedure involves various subjects such as: the Minister of Justice, the Attorney General and the Court of Appeals.

The Attorney General of the Nation, in the event that recognition of the foreign judgment is granted for the purposes provided in article 12, paragraph 1, numerals 1, 2 and 3 of the Penal Code, initiates the corresponding process with a request to the court appellate. To this end, also through the Minister of Justice, he may request the information he deems appropriate from the competent foreign authorities.

When the attorney general is informed by the foreign authority, also through the Ministry of Justice, of the existence of a criminal sentence handed down abroad, he requests its transmission to the foreign authority in the manner provided by the international agreements in force with the jurisdiction. foreign. Status or, failing that, with a rogatory, for the purposes of recognition in accordance with paragraph 2.

The request to the Court of Appeals contains the specification of the purposes for which recognition is requested.

In these cases, too, the procedure is quite complex, so the support of professionals such as those employed at the International Lawyers Associates firm is essential.

Assistance to the detainee at the police station

Before an arrest, the highest priority is to receive specialized legal assistance as soon as possible and to maintain contact with the outside.

 If you or a loved one has been arrested, we can help you.