09-09-2020

Extradition in Italy: cannot be granted in case of risk of violation of human rights

The risk that the person to be extradited may be subjected to inhuman or degrading treatment during detention excludes the possibility that extradition may be applied.

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Extradition in Italy: cannot be granted in case of risk of violation of human rights

Have you been arrested in Italy and do not want to be extradited for fear that your fundamental rights may be violated?

Are you looking for a lawyer who deals specifically with the extradition in case of human rights violations?

Would you like to receive legal assistance or advice on extradition matters?

You can contact Criminal Lawyer H24 who will assist you with an expert lawyer in matter of extradition and human rights violation and, in general, a lawyer with specific experience in matter of international law.

The case addressed by the Rome Court of Appeal in the recent Judgment number 53/2020 refers to the request for passive extradition made by the Government of the Philippines to Italy against a person accused in the Philippines for the crime of voluntary manslaughter, detained in Rome and assisted by our law firm.

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In this case, the main element highlighted by the defense at the Court of Appeal of Rome referred precisely to the fact that there were no conditions for extraditing this person to the Philippines since there were obvious risks that, in the event of surrender to a foreign state, there would be a clear violation of the detainee’s human rights and therefore there was a case of extradition human rights violation.

In support of this thesis, the defense has attached numerous photographs collected from international legal journals that clearly showed the serious living conditions of prisoners in Philippine prisons, as well as several articles by international organizations, including Amnesty International, in which it was reported clearly how in numerous cases, inside the prisons in the Philippines, real violations of human rights had been committed.

Is it possible to deny extradition even for cases of serious crimes such as voluntary manslaughter? 

The answer to this question, as confirmed in the ruling of the Court of Appeal of Rome, can only be: YES!

The meaning of the word extradition finds its foundation in the Latin word “ex-traditio”. We can literally translate into English with “delivery-out” thus highlighting that the meaning of extradition refers precisely to the delivery of a subject to another state.

Obviously, in order for extradition to be granted, unless it is an extradition for political crimes, the State handing over the requested person must obtain concrete information about the rights that will be recognized to the person to be extradited, as well as about the conditions of detention to which the person will be subjected in the foreign state, since extradition cannot be granted in case of risk of extradition human rights violation.

Even in the case of extradition of the foreigner, in fact, article 698 of the code of criminal procedure expressly provides that:

Extradition for a political crime cannot be granted when there is reason to believe that the accused or the convicted person will be subjected to persecutory or discriminatory acts for reasons of race, religion, sex, nationality, language, political opinion or personal or social conditions or as well cruel, inhuman or degrading treatment or punishment or in any case to acts that constitute a violation of one of the fundamental rights of the person.

Therefore, it is clear that in cases of passive extradition, unlike cases of active extradition human rights violation, the risk of a possible violation of human rights means that the crime attributed to the wanted person is not taken into account, even in the case of a very serious crime such as voluntary manslaughter, since it is not tolerable that a person (even a person who has committed a very serious crime) can be subjected to “cruel, inhuman or degrading” prison treatment.

In this case, the Court of Appeal of Rome fully confirmed this reasoning, not being conditioned in any way by the very serious crime that the detainee was charged with in the Philippines (voluntary manslaughter), thus demonstrating how, regardless of the crime charged, in extraditions, fundamental importance must always be attached to the fact that the fundamental rights of the person must always be guaranteed to the detainee, since an extradition human rights violation cannot be granted.

What are the conditions to speak about a possible violation of human rights?

In both the cases of extradition of an Italian citizen and in case of the extradition of a foreigner, the protection of human rights always plays a role of fundamental importance.

In this case, the Rome Court of Appeal, when denying extradition to the Philippines, assessed the extremely serious living conditions to which the detainee would have been subjected in Philippine prisons in the event that the extradition was granted, considering that, in addition, it says in the sentence that:

“The possible macroscopic violation of the fundamental rights to which the person would be subjected when placed in a prison context such as that described by the Philippine authorities at the Batangas institute” constitutes an obvious violation of human rights.

In essence, the Court of Appeal, as requested by the defense, gave utmost importance to the issue of overcrowding inside the Batangas prison, the place where the prisoner should have been transferred, since, on the basis of the information arrived from the Philippine authorities, he would have been guaranteed a living space inside the cell in the Philippines of only 0.80 square meters!

In this case, it was a situation that, in the opinion of the Court of Appeal of Rome, “contrasts incontrovertibly with the principles protected by art. 698 paragraph 1 of the Italian code of criminal procedure“, by virtue of which, as mentioned above, the inmate may not be subjected “to cruel, inhuman or degrading treatment or punishment or in any case to acts that constitute a violation of one of the fundamental rights of the person.” (Extradition cpp art. 698 paragraph 1).

The very small living space that would have been recognized to the detainee inside the cell in the Philippines was considered as a clear violation of human rights, since it is in no way an adequate space for the detention of a human being.

What are the rights guaranteed to foreign citizens in terms of extradition?

The provisions of the criminal procedure code regarding the denial of extradition in the event of a possible violation of human rights is totally independent of whether it is a request for extradition of an Italian citizen or a request for extradition of the foreigner, as it cannot be granted in no case an extradition human rights violation, regardless of the state of affiliation of the requested person.

In this case, the same Court of Appeal of Rome, by denying the extradition of the Philippine citizen, clearly demonstrated how the possible violation of human rights must be judged in an absolutely identical way if it is an Italian citizen, or if it is , as in the present case, of a foreign citizen.

For the Italian citizen, however, only a further clarification must be made since, in addition to the rights recognized in a generic way to any person for whom extradition is requested, the right not to be extradited in the event of absence of international conventions that provide for it, as well as the right not to be extradited for political crimes (Extradition, Constitution art. 26).

On the basis of these principles, the citizen of the Philippines has been recognized all fundamental rights by the Court of Appeal of Rome which, fearing a possible violation of human rights against the accused in case of granting extradition to the Philippines, refused the extradition of our client to the Republic of the Philippines, setting him free.

Why go to an extradition lawyer with experience in violation of human rights?

As you may have understood, extradition is a particularly complex and delicate matter that requires particular and specific professional skills that not all lawyers possess.

In fact, in extradition proceedings, the lawyer must have specific skills not only in relation to national law, but also specific experience in the field of international law, having to know, specifically, the various international treaties and the various agreements between States and, therefore, to also study the position of the States without extradition with Italy.

It is clear that for such a complex and articulate matter it is always advisable, therefore, to have a lawyer with specific experience in the field of extradition human rights violation, specialized in the matter, who knows well the legal matter dealt with so that, from the beginning, there is the maximum guarantee of the right of defense of the person against whom extradition is requested, providing the most appropriate defensive strategy for the specific case.

H24 Line for emergency: +39 338 85 15 424.

Read our other articles on this topic:

Lawyer for extradition to Belgium and European arrest warrant (EAW)

Italian Lawyer for Extradition Cases. Italian International Law Firm

Extradition Lawyer in Italy: Legal Aid and Criminal Defense in extradition cases

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