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NEWS

New Italian law on extraditions strengthens safeguards against death penalty

editor - November 7, 2017 - extradition

The Italian law on extraditions and other international criminal justice mechanisms has recently been amended. We talked to Italian criminal defence lawyer and LEAP member Giulia Borgna about the main implications for procedural safeguards and the right to a fair trial.

Italian-flag(Fair Trials) What was the Italian legislator trying to achieve through this change? (Giulia Borgna) The changes to the law on extraditions mainly aim at simplifying the procedures for cross-border legal assistance and at strengthening international cooperation, in particular with other EU member states.

Simplifying is often synonymous with speeding up. Is this true here too? The new law sets tighter time limits for the extradition procedures, which can currently stretch across 2 years until the final sentence is issued by the Court of Cassation. According to the new dispositions, the prosecution should issue the opinion (requisitoria) within 30 days of the extradition request. Similarly, the Courts of Appeal and the Court of Cassation have 6 months to decide on the case. These are however purely indicative timeframes with no legal implications should they not be respected by either the prosecution or the Courts.

What about procedural safeguards such as the right to access a lawyer? Under the new rules, the lawyer must now be present when the defendant first appears (comparizione, now interrogatorio) before the judge to consent or refuse their extradition. If the lawyer is not present, any given consensus will have no legal value. This is true also when the defendant is brought before the Italian judge after being extradited to Italy from abroad. In this case, the defendant is asked whether they agree to be potentially prosecuted for crimes other than those mentioned in the extradition request (principio di specialità). Again, the lawyer must now be present for the consensus to be valid.

Was the lawyer not allowed to be present before the new law? The defendant had the right to have their lawyer present, but this was not mandatory. Even if the lawyer was absent, the consensus given by the defendant could be accepted as valid by the court.

One important aspect of extradition law is represented by grounds for refusal, that is the reasons for a judge to reject an extradition request. Did the new law touch upon this element too? It did and this is possibly the most interesting element of the amendment, specifically in relation to the application of the death penalty as a ground for refusal. Previously, the law was silent in this regard, and left it to the Italian Constitutional Court to set some principles. In 1996, this Court had decided that, if a crime can be punished with a death penalty in the requiring state, the Italian judge must either seek diplomatic assurances that the death penalty would not be applied or stop the extradition entirely. The new law has now formally sanctioned the Court’s position and even replaced the diplomatic assurances (which risked being aleatory and ineffective) with a legal decision from the requesting judicial authorities not to apply the capital punishment or to otherwise commute the sentence.

Were other grounds for refusal reformed by the new law? Other grounds for refusal which have been formally introduced in the law include considerations about the age of the defendant, their health conditions, or any other element that might have a serious impact on their life. Again, the law is basically validating principles that had been already sanctioned by the Constitutional Court. We need to see now how these and other considerations will play out in the courts’ judgments.

What about grounds for refusal in the case of a European Arrest Warrant? That did not change, the grounds for refusal remain those stated in the EU Framework Decision.

Extradition proceedings can double the risk of miscarriages of justice, simply because at least two different criminal justice systems are involved. Did the new law address this issue? In the case of extradition to Italy from abroad, the defendant has now a broader chance to claim compensation for wrongful detention. Under the new law, in fact, they can now claim compensation for the whole period they spent in wrongful detention, including in the extraditing state. The new dispositions largely transposes a consolidated jurisprudence from the Constitutional Court, among others, which has established the equivalence of pre-trial detention periods spent abroad and in Italy in the framework of extradition proceedings.

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71. For regular updates follow Fair Trials on Twitter and Facebook or sign up to our newsletter at the bottom of the page. CFB iconlick to share this story on Facebook

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If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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