Base de Datos de Legislación

Article 697. Extradition and powers of the Minister of Justice

1. Surrender of a person to a foreign country for the enforcement of a foreign judgment under which the said person is to be imprisoned or restricted in his personal liberty may only be performed by extradition.

2. In the case of concurrent requests for extradition, the Minister of Justice shall determine their order of precedence. To that end, he shall take into account all the relevant circumstances and especially the dates of receipt of the aforesaid requests, seriousness and place of commission of the offence(s), nationality and residence of the person sought and the possible re-extradition of the said person from the requesting country to another country.

Article 698. Political character of an offence. Safeguard of fundamental human rights

1. Extradition shall not be granted for offences of a political character, nor where there are reasonable grounds to believe that a person who has been convicted or accused of a crime may be persecuted or discriminated against on account of his race, religion, sex, nationality, language, political opinions or personal or social circumstances, or that he may undergo cruel, inhuman or degrading punishments or treatment or, at all events, be the subject of acts amounting to violations of fundamental human rights.

2. Where the offence for which extradition is requested is punishable by death under the law of the foreign country, extradition shall be granted only if the aforesaid country gives such assurance as both judicial authorities and the Ministry of Justice consider sufficient that the person sought will not be sentenced to death penalty or, if such sentence has already been passed, that it will not be executed.

Article 699. Rule of speciality

1. Extradition, extension of granted extradition and re-extradition shall be granted only where it is expressly provided that, in respect of an offence committed before the surrender other than that for which extradition was granted or extended or re-extradition granted, the extradited person will not be restricted in his personal freedom for the enforcement of a sentence or security measure or for any other reason whatever, or surrendered to another country.

2. Paragraph 1 shall not apply if the extradited person, having had the opportunity to do so, has not left the territory of the country to which he was surrendered within forty-five days of his final discharge, or if he has voluntarily returned to the said country after leaving it.

3. The Minister of Justice may make extradition dependent upon such further conditions as he considers appropriate.

4. The Minister of Justice shall supervise compliance with the rule of speciality and any additional conditions, where specified.

Article 700. Documents to support the request

1. Extradition shall only be granted upon a request supported by a copy of the order or judgment under which the person is to be restricted in his personal freedom or has been sentenced to a custodial punishment, respectively, and which gave rise to the aforesaid request.

2. The following documents must be submitted along with the request for extradition:

a) a statement of the offences of which the person sought is accused, including date and place of commission of the said offences and their legal description;

b) a text of the relevant law(s) including a statement as to whether the offence for which extradition is requested is punishable by death in the requesting country and, in the latter case, the assurance given by the requesting country that the person will not be sentenced to death penalty or, if such sentence has already been passed, that it will not be executed;

c) a description of the person sought and any further information which may be helpful to establish his identity and nationality.

Article 701. Jurisdictional remedies

1. Extradition of a person accused or convicted of a crime in a foreign country may not be granted unless with the consent of the Court of Appeal.

2. Nevertheless, a decision by the Court of Appeal shall not be necessary where the person accused or convicted of a crime in a foreign country gives his consent to the extradition. Such consent must be given in the presence of defence counsel and mentioned in the relevant report.

3. A favourable decision by the Court of Appeal and the consent given by the person sought shall not make extradition compulsory.

4. Competence shall lie, in order, with the Court of Appeal in whose district the person accused or convicted of a crime is resident or domiciled at the time when the request for extradition is received by the Minister of Justice, or with the Court of Appeal which issued the provisional arrest warrant pursuant to article 715, or with the Court of Appeal whose presiding judge confirmed the arrest warrant in pursuance of article 716. Should it prove impossible to establish which Court is competent according to the above criteria, competence shall lie with the Court of Appeal in Rome.

Article 702. Participation of the requesting country in the proceeding

1. Under condition of reciprocity, the requesting country shall be entitled to participate in the proceeding before the Court of Appeal and the Court of Cassation by the agency of a lawyer who is enabled to defend an action before Italian judicial authorities.

Article 703. Acts to be performed by the general public prosecutor at the Court of Appeal

1. Upon receipt of a request for extradition from a foreign country, the Minister of Justice shall forward the said request and the attached documents to the general public prosecutor at the Court of Appeal which is competent pursuant to paragraph 4 of article 701, unless he is of the opinion that the request is to be dismissed.

2. The general public prosecutor shall order, upon receipt of the request for extradition, that the person concerned appear before him to establish his identity and to hear him in regard of his consent to the extradition, unless the provisions of article 717 have already been complied with. The person concerned shall be informed that he will be assisted by Court-appointed counsel, but that he may appoint another counsel if he chooses to do so. Defence counsel shall be entitled to be present during the performance of any act which was notified to him at least twenty-four hours in advance.

3. The general public prosecutor shall request the foreign authorities, through the Minister of Justice, to provide such documents and information as he considers necessary.

4. Within three months of the date of receipt of the request for extradition, the general public prosecutor shall submit his conclusions to the Court of Appeal.

5. The general public prosecutor’s conclusions shall be deposited with the Court’s clerk’s office together with the relevant documents and all seized things. The Court’s clerk’s office shall notify the said deposit to the person sought, defence counsel and the representative of the requesting country, if any, who may, within ten days, view and make copies of the said conclusions and documents as well as inspect the things seized and submit their own memorials.

Article 704. Proceeding before the Court of Appeal

1. At the expiry of the terms as per para. 5 of article 703, the judge presiding over the Court of Appeal shall fix the date of the hearing for the decision, by a decree of which communication shall be given to the public prosecutor and notification to the person sought, the latter’s counsel and the representative of the requesting State, if any, at least ten days in advance, under penalty of voidance. The judge shall further appoint defence counsel in case a person has none. Memorials may be deposited with the Court’s clerk’s office until five days before the date of the hearing.

2. The Court shall decide in chambers on the existence of conditions to grant the request for extradition, having collected such information and carried out such investigations as are deemed necessary and having heard public prosecutor, defence counsel and, if they appear in Court, the person sought and the representative of the requesting country.

3. Where the Court decides to grant extradition, the person sought shall be placed in preventive detention, if he has not been already deprived of his freedom and if this is requested by the Minister of Justice; further, the Court shall order seizure of the corpus delicti and all things relating to the offence, determining which documents and seized items asre to be surrendered to the requesting country.

4. Where the request for extradition is not granted, the Court shall revoke all precautionary measures and provide for returning any property seized.

Article 705. Criteria for the decision

1. Where no convention exists or provides otherwise, the Court of Appeal shall grant extradition if there are serious grounds to believe that the person is guilty, or if a final sentence has been passed and, as regards the person sought, no criminal proceeding is pending in Italy for the same fact nor has a final judgment been delivered in respect of such fact.

2. The Court of Appeal shall in any case refuse to grant extradition:

a) if, regarding the offence for which extradition was requested, the person was or will be the subject of a proceeding which does not ensure that the fundamental human rights are respected;

b) if the judgment for whose enforcement extradition was requested includes provisions which conflict with the basic principles of the State’s legal system;

c) if there are grounds to believe that the person sought will be the subject of the acts, punishments or treatments referred to in paragraph 1 of article 698.

Article 706. Appeal before the Court of Cassation

1. The decision given by the Court of Appeal may be appealed against before the Court of Cassation, even on the merits, by the person concerned, defence counsel, the general public prosecutor and the representative of the requesting country.

2. Article 704 shall apply to the proceeding before the Court of Cassation.

Article 707. Reiteration of a request for extradition

1. A decision to refuse extradition shall preclude any subsequent decision granting it on the basis of a further request submitted by the same country in respect of the same facts, unless the latter request is supported by evidence which has not yet been evaluated by judicial authorities.

Article 708. Extradition order. Surrender of the person sought

1. The Minister of Justice shall decide in respect of the extradition within forty-five days either of the receipt of the report certifying consent to the extradition or of the notification that the term for appeal has expired, or of the deposit of the judgment given by the Court of Cassation.

2. At the expiry of the aforesaid term without any decision by the Minister, the person sought shall be set free, if in custody.

3. The aforementioned person shall also be set free if extradition has been refused.

4. The Minister of Justice shall inform the requesting country without delay on his decision and, if the latter is favourable, on the place of surrender and on the date starting from which the person may be surrendered; he shall further specify which restrictions have been imposed on the extradited person’s liberty for the purposes of the extradition.

5. Surrender of the person sought shall have to take place within fifteen days of the date fixed pursuant to paragraph 4 and may be postponed by further twenty days on application filed, with a statement of reasons, by the requesting country.

6. The extradition order shall cease to be effective if the requesting country does not see to receiving the extradited person within the period fixed as above; in the latter case, the person sought shall be set free.

Article 709. Suspension of surrender. Temporary surrender. Execution of sentence abroad

1. Execution of extradition shall be suspended where a proceeding is pending in the State’s territory against the person sought or the latter is to serve a sentence for offences committed before or after the one for which extradition was granted. Nevertheless, the Minister of Justice may temporarily surrender the person sought to the requesting country, upon conditions and with modalities to be determined, after having heard the judicial authority which is competent for the proceeding pending in the State or for the execution of the sentence.

2. The Minister of Justice may further grant execution of the sentence in the requesting country, subject to compliance with the provisions of Chapter II of Title IV.

Article 710. Extension of granted extradition

1. Where a new request for extradition is made after the person sought has been surrendered, in respect of an offence committed before the said surrender other than that for which extradition was granted, the provisions of this Chapter shall apply as appropriate. The request shall be supported by the statements made by the person concerned before a judge of the requesting country as regards the extension of the extradition.

2. The Court of Appeal shall hear the case in the absence of the person concerned.

3. The proceeding before the Court of Appeal shall not take place if the extradited person has given his consent to the requested extension in the statements referred to under paragraph 1.

Article 711. Re-extradition

1. Article 710 shall also apply in case the country to which the person was surrendered applies for consent to the re-extradition of the said person to another country.

Article 712. Transit

1. Transit through the State’s territory of a person extradited from a country to another country shall be authorized by the Minister of Justice upon a request made by the latter country, unless such transit may affect the State’s sovereignty, security or fundamental interests.

2. Transit shall not be authorized:

a) if extradition was granted for facts which are not offences under Italian laws;

b) if any of the circumstances as per paragraph 1 of article 698 apply, or if the circumstance as per paragraph 2 of the aforesaid article applies and the requesting country does not give assurance that the person will not be sentenced to death penalty or, if such sentence has already been passed, that it will not be executed;

c) if the extradited person is an Italian national and his extradition could not be granted to the country requesting his transit through the State’s territory.

3. Unless the extradited person has given his consent to the transit by a statement made before the judicial authorities of the extraditing country, no authorization may be granted without a favourable decision by the Court of Appeal. To that end, the Minister of Justice shall forward the request and the attached documents to the general public prosecutor at the Court of Appeal. The Court shall hear the case in chambers, in the absence of the person concerned, pursuant to the provisions of paragraphs 1 and 2 of article 704. Paragraph 1 of article 706 shall also apply. Competence shall lie in any case with the Court of Appeal in Rome.

4. No authorization shall be necessary if transit occurs by plane and no stopover is envisaged in the State’s territory. However, if such stopover is made, the provisions of the above paragraphs and those of section II of this chapter shall apply as appropriate.

Article 713. Security measures applying to the extradited person

1. Any security measures adopted in respect of a person who had been acquitted or convicted of an offence in the State and subsequently extradited shall be effective as soon as the said person returns to the State’s territory for whatever reason, if it is ascertained that he is still a danger to society.