In international extradition proceeding, when an extradition treaty with Italy provides a deadline for the possible release from the extraditional pretrial detention without having received the extradition request and the relevant documentation, the term of forty days provided for by the ordinary rules in Article 715, paragraph six, of the Code of Italian Criminal Procedure must be considered applicable, given the merely optional nature of the different time limit contained in the convention norm, which has remained without a specific adaptation rule in domestic law.
The norms of covenanted international law are addressed primarily to the contracting states: the progressively absorbing character that the legal connotation of the extraditional relationship has assumed over the years, with respect to the purely political dimension, has meant that the rights of the extradite have come to assume ever greater importance, so as to transform certain state prerogatives into safeguards and guarantees of the individual. And in this perspective, the pactual provisions, mentioned above, which provide peremptory deadlines for the release of the extradited person, so as to avoid the protraction beyond a reasonable period of time of the status detentionis of the wanted person due to the inertia of the requesting State in transmitting the formal request and the extradition file, must now be read. They therefore take on the function of guaranteeing for the extradite the maximum duration of the provisional measure, which is likely to be prolonged indefinitely.
(automatic non official translation)
SUPREME COURT OF CASSATION
SIXTH CRIMINAL SECTION
Sec. VI, Sent., (ud. 19/11/2010) 25-11-2010, no. 41728
Composed of the Honorable Messrs:
Dr. DI VIRGINIO Adolfo - President
Dr. GRAMENDOLA Francesco P. - Councilor
Dott. ROTUNDO Vincenzo - Councilor
Dott. CITTERIO Carlo - Councilor
Dr. CALVANESE Ersilia - rel. Councilor
pronounced the following:
judgment
On the appeal brought by:
K.M., born in (OMISSIS);
against the order of 09/16/2010 of the Court of Appeals of Milan having regard to the acts, the measure complained of and the appeal;
Hearing the report delivered by Councilor Dr. CALVANESE Ersilia;
heard the requests of the Public Prosecutor, in the person of Deputy Attorney General Dr. FRATICELLI Mario, who concluded by requesting the inadmissibility of the appeal.
IN FACT
1. By order of September 16, 2010, the Court of Appeal of Milan rejected the petition for release submitted by K.M., who was detained for the purpose of his extradition to Morocco.
In particular, the petitioner had argued that the extradition request had not been transmitted within the 30-day period from his arrest and therefore his release should be ordered, as provided for by the covenant regulations.
The Court of Appeals, on the other hand, held that the alleged peremption was not verified, because all the necessary documents had been transmitted by the requesting state within the forty-day period provided for by Article 715 of the Code of Criminal Procedure, assigning a nonperemptory nature to the shorter term provided for by the convention regulations.
2. Against the aforementioned order M. appeals, alleging:
- the violation of Article 38 of the bilateral extradition treaty between Italy and Morocco of February 12, 1971, claiming that the said provision, far from granting the judicial authority a mere power of release, provides that the release of the extradited person shall take place at the request of a party, once the term provided therein has expired:
- the defect of reasoning, for lack of motivation.
Reasons for the decision
1. The appeal is unfounded.
It appears from the record that: K.M. was arrested, pursuant to Article 715 of the Code of Criminal Procedure, on July 14, 2010; on the following day, the Government of the Kingdom of Morocco was notified of the arrest; on the following July 16, the arrest was validated by the President of the Court of Appeal of Milan and the custodial precautionary measure was issued; on July 21, the requesting government was then notified of the adoption of the precautionary measure; and finally, on August 24, the Italian Ministry of Foreign Affairs received the formal extradition request.
That being said, it is noted that Article 38 of the Convention on Mutual Legal Assistance, Enforcement of Judgments and Extradition, signed in Rome on February 12, 1971, and ratified by Law No. 1043 of December 12, 1973, states that "Provisional arrest may be terminated if within 30 days of the arrest, the requested government has not received the extradition request and the documents mentioned in Article 36. Release does not exclude arrest and extradition if the extradition request is received further" (in the French version "Il pourra etre mis fin à l'arrestation provisoire si, dans le delai de 30 jours apres l'arrestation, le gouvernement requis n'a pas ete saisi de la demande d'extradition et des documents mentionnes à l'article 36. La mise en libertè ne s'oppose pas à l'arrestation et à l'extradition si la demande d'extradition parvient ulterieurement").
This provision regulates an institute traditionally provided for in the pactual norms on extradition, that of the ed "peremption of provisional arrest," aimed at establishing a time limit to the cooperation given by the State of refuge with the capture of the person sought on the basis of the request of the requesting State alone, containing the formal commitment of the submission of the extradition request.
The rule under consideration, however, deviates from the provisions contained in the main treaties signed by Italy, giving the requested state only the "faculty" to terminate the provisional arrest upon expiry of the time limit provided therein, while as a rule, the pactual norms establish peremptory terms for the termination of arrest upon expiry of a given time limit (which may vary from treaty to treaty) or provide for a minimum, optional time limit and a maximum, peremptory one (such as, e.g., the European Convention on Extradition, in which the requesting state is the only state that can be granted the right to terminate the arrest upon expiry of the time limit). the European Convention on Extradition, in this sense see Sec. 6, no. 19636 of 31/03/2004, dep. 28/04/2004, Ouattara, Rv. 228870).
On the scope of this provision it should be noted that since it is a rule of international covenant law, it is primarily addressed to the contracting states. With extradition treaties, in fact, governments mutually oblige each other to assist in the surrender of persons sought for the purposes of justice, giving rise to a relationship in which traditionally the individual is not recognized as having subjectivity under international law.
It is true that the progressively absorbing character that the legal connotation of the extraditional relationship has assumed over the years, with respect to the purely political dimension, has meant that the rights of the extradited person have come to assume ever greater prominence, so that certain state prerogatives have been transformed into safeguards and guarantees of the individual. And in this perspective, the pactual provisions, mentioned above, which provide peremptory deadlines for the release of the extradited person, so as to avoid the protraction beyond a reasonable period of time of the status detentionis of the wanted person due to the inertia of the requesting State in transmitting the formal request and the extradition file, must now be read. They therefore take on the function of guaranteeing for the extradited person the maximum duration of the provisional measure, which is likely to extend indefinitely.
On the other hand, the scope of the provision of Article 38 cited above, which, by conferring on the State of Refuge a mere faculty to give rise to the release of the extradite, appears to be addressed preeminently to the States Parties to the extraditional relationship, not regulating the powers and competences of the internal organs of the Contracting States, which can therefore freely regulate on the domestic level the exercise of this faculty.
An example in this sense is the provision contained in many treaties of the faculty of extradition of the citizen, to which does not correspond at the domestic level a rule attributing the relevant decision to the Italian judicial authority, which is therefore considered to be left to the discretionary choice of the governing body (among others, Sec. 6, no. 26587 of 12/06/2008, dep. 02/07/2008, Ballili, Rv. 240570).
The attribution to the minister derives, in fact, from the norms of the Code of Criminal Procedure and in particular from Articles 697 and 708, which reserve to that authority the power to grant extradition and thus also the power to exercise any options granted by the applicable agreement, while the judicial authority is responsible for examining the existence of the conditions - provided for in the convention and possibly in domestic law - to which extradition is subordinate.
In other cases, on the other hand, the legislature has positively regulated at the domestic level the implementation of the covenanted norm, with provisions issued upon ratification of the treaty or in a general way, which, by virtue of the principle, also reaffirmed by Article 696 of the Code of Criminal Procedure, of the prevalence of international conventions over domestic law, must not in any case be incompatible with the commitments undertaken. Suffice it to recall here, for example, the provision contained in Article 8 of the 1957 European Convention on Extradition, which regulates the option the refusal of the requested State to grant extradition in the event of "international lis pendens," to which corresponds in domestic law the prohibition against extradition, provided for in Article 705 c.p.p., paragraph 1, last part, when criminal proceedings are pending in the State for the same fact (in this sense, see Corte cost, Sentence no. 58 of 1997).
2. Having said these necessary premises, in the case submitted by the present appeal, it should be noted that when the 1971 Treaty was ratified, no specific adapting provisions were issued in relation to Article 38, with the result that the rules contained in the Code of Judicial Procedure must come into application, within the aforementioned limits.
Indeed, Article 715, paragraph 6, of the Code of Criminal Procedure states that the precautionary measures are revoked if within forty days of the communication to the foreign state of the provisional application of the coercive measure and the possible seizure, the extradition request and the documents provided for in Article 700 have not been received by the Ministry of Foreign Affairs or the Ministry of Justice.
This is a provision that requires the judicial authority to release the extradite, albeit under conditions that are significantly different from the covenant rule under consideration, but not incompatible with it, pursuant to Article 696, paragraph 2, of the Code of Criminal Procedure. The incompatibility referred to in the last-mentioned norm must in fact be established in the light of the object and purpose of the treaty under consideration (in this sense cf. art. 31 of the Vienna Convention on the Law of Treaties of May 23, 1969), constituted by the mutual obligation assumed by the States Parties to hand over to each other individuals sought for the purposes of justice, who are in their respective territories.
It can therefore be concluded that the contested order correctly applied the maximum term for the duration of the precautionary measure of 40 days provided for by the procedural rule, the shorter term contained in the pactual norm having to be considered merely optional (see mutatis mutandis Sez. 6, no. 19636 of 31/03/2004, dep. 28/04/2004, Ouattara, cit.)
In the light of the rules, in the present case the extradition documents were received before the arrest was perished.
3. Finally, it should be added for the sake of completeness that, in any case, even accepting the appellant's argument, the release of the extradited person should not have been ordered, since the Treaty provides, in the event that the time limit stipulated therein is exceeded, that a new arrest shall be made if the extradition request is received further.
This provision, contained as a rule in the relevant treaties, has been interpreted by this Court, with reference to the European Convention on Extradition, in the sense of excluding that the peremption of provisional arrest requires the actual release of the extradited person if, in the meantime, the detention has continued until the date on which the requested state has received the formal extradition request (Sez. 6, no. 35895 of 12/07/2004, dep. 03/09/2004, Orkisz, Rv. 230014). In the present case, the request for release was submitted on August 24, 2010, which is the same day the extradition request was received.
4. As for the lack of motivation, the appellant's grievance cannot be accepted, given that the Court of Appeals gave reasons, albeit briefly, as to why the application could not be granted.
5. In conclusion, the appeal should be dismissed and the appellant ordered to pay the court costs. The Clerk's Office shall provide for the fulfillments referred to in Article 203 disp. att. c.p.p..
P.Q.M.
Dismisses the appeal and orders the appellant to pay court costs. Sends to the Clerk's Office for the fulfillments referred to in Article 203 disp. att. c.p.p.
Thus decided in Rome, November 19, 2010.