Legislative Decree n. 161 of 2010 provides for the possibility that foreign citizens, in the event of a criminal conviction in Italy, may request to serve the sentence in their country of origin or residence. What are the legal requirements?
Have you been convicted in Italy? Do you want to serve your sentence in your country? The international criminal lawyer explains how to serve Italian sentence abroad in case of conviction in Italy. The first step to serve Italian sentence abroad is undoubtedly the recognition of the Italian sentence by the Judicial Authority of your country of origin or residence.
What does recognition of the italian sentence mean?
It is the provision issued by the Authority of the foreign State with which it is possible to execute a sentence handed down by the Italian Judicial Authority abroad.
What is the reference law to serve the italian sentence abroad?
The reference legislation is Legislative Decree no. 161 of 2010, within which the Italian legislator established the method by which it is possible to serve Italian sentence abroad in case the person has been sentenced in one of the countries of the European Union.
This provision was issued to bring Italian legislation into line with the Framework Decision 2008/909 JHA of the Council of Europe of November 27, 2008 on the application of the principle of mutual recognition of sentences that apply prison sentences or measures that deprive the personal freedom for the purposes of execution of the condemn in the European Union.
This law regulates the procedure by which a sentence pronounced in Italy is transmitted to another member state of the European Union, in order to be recognized and enforced in that state.
What is the objective of the law?
The purpose of the law is to clearly establish the rules according to which a member state of the European Union must recognize a sentence of another state in order to execute the sentence imposed in a state of the European Union.
When can I serve the italian sentence abroad?
The Framework Decision applies if the convicted person is in the State of the European Union of issuance or execution: in this case, it is possible to serve an Italian foreign sentence in the country of origin or residence.
What are the competent authorities for the recognition of the sentence?
Italy designates the Ministry of Justice and the Judicial Authorities as competent authorities to decide on the recognition of the foreign criminal sentence.
In the first place, the adopted decision must be sent to the Administrative and Judicial Authority for its recognition.
Therefore, if the decision was adopted in Italy and you want to serve Italian sentence abroad, the Judicial Authority sends the documentation to the corresponding foreign authority.
The Minister of Justice is responsible for the transmission and reception of the sentences and the certificate, as well as the official correspondence related to them.
How is the transimission abroad of the italian judgements organised?
Transmission abroad is ordered by the Prosecutor indicated in article 665 of the Italian criminal procedure code, in the event that a prison sentence must be executed; by the Prosecutor identified in accordance with article 658 of the Italian Criminal Procedure Code, in the event that a precautionary measure must be executed.
The consent of the convicted person is always required for the transmission to one of the Member States of the sentence for serve Italian sentence abroad.
What are the conditions for the transmission abroad of the sentence of conviction?
Paragraph 2 of article 5 of Legislative Decree 161/2010 specifies that the competent judicial authority orders the transfer if there is no cause for the suspension of the execution of the condemn and when the following conditions occur together:
a) The purpose of carrying out the sentence or the security measure abroad is to promote the social reintegration of the convicted person;
b) the crime for which the sentence was handed down is punishable by a maximum penalty of not less than three years;
c) the sentenced person is in the territory of the Italian State or in that of the executing State;
d) the convicted person is not subjected to another criminal process or is not serving another sentence or application of a security measure.
In addition, the transmission abroad is directed towards the Member State of the European Union of citizenship of the convicted person in which the latter lives, or towards the Member State of the European Union of citizenship of the convicted person in which he will be expelled, or to the Member State of the European Union that has consented to the transmission.
Why does the law recognize me the possibility of complying with the italian sentence abroad id I have committed the crime in Italy?
The purpose of the Framework Decision and the consequent legislative decree of transposition is clear: the transfer of the prisoner (or in general the possibility of serve Italian sentence abroad), has as its objective the social reintegration of convicted persons by bringing them closer to your country and your loved ones, thus avoiding the difficulties derived from cultural, linguistic and social differences.
What is the difference with the Strasbourg convention?
The Strasbourg Convention can be applied for the transfer of people detained abroad to countries that do not belong to the European Union: for the application of the aforementioned convention, the person requesting the transfer must be detained and must give their consent for the transfer.
In addition, the transmission abroad is directed towards the Member State of the European Union of citizenship of the convicted person in which the latter lives, or towards the Member State of the European Union of citizenship of the convicted person in which they will be expelled, or to the Member State of the European Union that has consented to the transmission.
Before sending the judgment and the certificate to serve an Italian sentence abroad, the competent authority of the issuing state may consult the competent authority of the executing state; in some cases, consultation is obligatory.
Why trust a specialized lawyer to comply with the italian sentence abroad?
Given the complexity of the matter in question, to serve Italian sentence abroad it is always advisable, therefore, to have a competent and specialized lawyer in the matter, who knows well the legal matter so that, since the first moment, there’s maximum guarantee of the right of defense, and the fundamental rights of the person.
In this case, it is necessary to deal with different legal systems and for this reason it is necessary to have an international law firm that knows better international law and the different legal systems of the States involved.
The particular complexity of the matter, in fact, makes it absolutely necessary to contact a lawyer specialized in international law, so as not to see your rights that the law recognizes unfairly compromised.
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