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Avvocato Penalista H24 is an italian Law Firm specialized for procedures of extradition.
In extradition procedures, legal defense is not only opportune but is necessary also because the execution of the extradition procedure requires the obligatory assistance of a lawyer for the protection of the person who have to be extradited. If you want assistance, click here.
What is extradition and what are the legal principles that regulate this procedure?
Extradition can be defined as the delivery of a person by a State, in whose territory it is located, to another State who has applied to submit the person to a criminal trial or to execute a condemn sentence or other precautionary measure applicated from a Judge.
There are some principles that inform the Italian law and the conventional law on extradition:
- the principle of double criminality: extradition is not allowed if the fact object of the extradition request is not foreseen as a crime by Italian law and foreign law;
- the principle of specialty: the State that has obtained the extradition cannot proceed against the accused for previous facts or different events respect to that for which the extradition was granted;
- the principle of “ne bis in idem”: those who have already been judged in Italy cannot be extradited to be judged again in another country for the same fact;
- the principle of subsidiarity: the requested State does not grant extradition if the person concerned is subjected to a criminal trial in his own territory or has to serve a sentence.
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How is the extraditional procedure?
The procedure for the application of extradition has a mixed nature: there are two phases, the first and the third, with an administrative nature and another with a judicial nature, the latter being a guarantee for the person to which he can renounce by consenting to the extradition.
I Administrative phase: the foreign State sends the extradition request to the Italian Minister of Justice. He can reject the extradition request or send it to the Attorney General at the competent Court of Appeal.
II Jurisdictional Phase: the Attorney General requires the appearance of the person with the assistance of a lawyer for his identification and for the verification of his eventual consent to extradition. The consent must be expressed in the presence of a lawyer and determines the end of the extradition procedure.
The Court of Appeal then sets a date for the decision and cannot decide before hearing the Attorney General and the lawyer of the person that have to be extradited and, if present, the requested person and the representative of the foreign State.
The Court can pronounce a sentence favorable to extradition or unfavorable. In the latter case, the foreign State may not submit a new extradition request concerning the same person and the same fact.
In any case it is possible to appeal to the Supreme Court against the extradition sentence, in which case the Corte di Cassazione will decide also on the merits, assuming the function of second degree judge.
Third administrative phase: with the sentence in favor of extradition, the last phase of the procedure opens. The Minister of Justice with discretionary assessment decides within 45 days if he have to grant or not the extradition. If is not pronounced in the term or refuses extradition, the requested person is released; if, instead, he decides favorably to the extradition, he informs the requesting State of the place and the day from which it will be possible to deliver the person and ,within fifteen days from the date indicated – the deadline may be extended by a further 20 days – the delivery must take place.
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