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Italy: Legislation Implementing the EU Criminal Mutual Assistance Convention

(Aug. 26, 2016) On August 5, 2016, new legislation ratifying and implementing the European Union Convention on Mutual Assistance in Criminal Matters, in particular concerning extradition, entered into effect in Italy. (Law No. 149 of July 21, 2016, Ratifying and Implementing the Convention on Mutual Assistance in Criminal Matters Between Member States of the European Union of May 29, 2000, and Delegating Powers to the Government for Its Implementation … (Law No. 149), GAZETTA UFFICIALE, No. 181 (Aug. 4, 2016) (in Italian); Mutual Assistance in Criminal Matters Between Member States [of the EU] (2000), EUR-LEX.)  Law No. 149 also delegates powers to the Executive Branch to amend Book XI of the Criminal Procedure Code on the execution of judicial decisions, amends provisions on extradition, and sets deadlines in connection with coercive measures.

The Ministries of Justice, Foreign Affairs, International Cooperation for European Matters, and Economy and Finance must adopt legislative decrees for the implementation of the Convention that must then be sent to the Italian Parliament for the verification of the financial aspects of this implementing legislation. (Law No. 149, art. 3(2).)

Amendments to the Code of Criminal Procedure Concerning Judicial Cooperation

The Law includes several amendments to the Italian Code of Criminal Procedure to facilitate international cooperation in criminal matters. According to the amendments, the EU Convention on Mutual Assistance in Criminal Matters and the Treaty on the Functioning of the EU govern the relations between Italy and other EU Member States concerning international extradition requests, the effects of foreign criminal decisions, the enforcement of Italian criminal decisions overseas, and other relations with foreign authorities related to the administration of criminal justice.  (Id. art. 4(1)(a)(1); Consolidated Version of the Treaty on the Functioning of the European Union, 2012 O.J. (C 326) 47.) In relations with non-EU Member States, the provisions of the Italian Code of Criminal Procedure, Book XI on the execution of judicial decisions, apply.  (Id. art. 4(1)(a)(2); Codice di Procedura Penale [Code of Criminal Procedure] (updated to July 21, 2016), ALTALEX.)

Based on the international reciprocity principle, the Italian Ministry of Justice may reject requests for judicial assistance, extradition, or other matters related to the administration of criminal justice. (Id. art. 4(1)(b).)  The power to reject requests for international judicial assistance must be exercised in accordance with Italian treaties with EU Member States and, in the case of non-EU Member States, based on potential danger to national sovereignty or security or Italy’s essential interests.  (Id. art. 4(1)(c)(1) & art. 4(1)(d)(1).)

Judicial Assistance Requests

Requests for judicial assistance related to acquiring evidence or seizing assets must be transmitted to the Attorney General. (Id. art. 4(1)(c)(2).)  When the request involves evidence to be presented before a judge or when the authorization of a judge is legally required, the Attorney General must submit the request to the competent judge promptly.  (Id. art. 4(1)(c)(3).)  The Italian Court of Cassation (Italy’s highest court) has the power to decide conclusively any conflicts that may arise during proceedings on executing international judicial assistance requests.  (Id. art. 4(1)(c)(4).)

The Italian Attorney General is empowered to agree with the competent authorities of other EU Member States that joint investigation teams be constituted. (Id. art. 4(1)(c)(10).)  The investigative reports produced by joint investigation teams are to be considered fully valid in Italy as long as there has been no violation of Italian law in preparing them.  (Id. art. 4(1)(c)(12).)

When a request for judicial assistance relates to the summons of a witness, an expert, or the accused before a foreign judicial authority, the Minister of Justice may authorize such summons, provided that the foreign state offers immunity to the person summoned. (Id. art. 4(1)(c)(14).)  If the request involves the temporary transfer for investigative purposes of a person who is detained or incarcerated, then the Minister of Justice must proceed by requesting the opinion of the respective Italian judicial authority.  (Id. art. 4(1)(c)(14).)  The participation in a hearing by an accused, witnesses, or experts who are located outside Italy and may not be transferred to Italy may take place through remote connections in accordance with the Italian Code of Criminal Procedure.  (Id. art. 4(1)(c)(9).)

Extradition of Italian Citizens or Residents Overseas

A request for Italian citizens or residents to be extradited must be submitted to the Attorney General, and his or her decision on whether or not to comply with that request is subject to appeal. (Id. art. 4(1)(d)(3).)  The Attorney General must interrogate the person subject to the extradition proceedings and may also request from the foreign requesting authorities all necessary documentation and information.  (Id. art. 4(1)(d)(4).)  In the absence of an international treaty applicable to a specific case, appellate courts must approve the extradition when serious indications of guilt or a final conviction exist, and no other final decision has been issued in Italy in criminal proceedings against the same person based on the same grounds.  (Id. art. 4(1)(d)(6).)

The time for delivery of a person subject to extradition is fixed at 15 days, which may be extended to 20 days depending on the circumstances. (Id. art. 5(2).)  Extradition measures become null when the Ministry of Justice’s decision to grant the extradition of a person is not complied with within three months.  (Id. art. 5(3).)  An administrative judge may always suspend decisions issued by the Ministry of Justice during extradition procedures.  (Id. art. 5(2) & (3).)

The Ministry of Justice may also reject extradition requests when the request may prejudice the sovereignty, security, or other essential interests of the state or when it is contrary to the state’s fundamental legal principles, and the competent judicial authority is bound to respect such principles. (Id. art. 4(1)(d)(8 &9).)

Periods of preventive detention undergone abroad may be computed for purposes of extradition procedures. The request for an extension of the term within which the accused must be extradited must be approved by a judicial decree, which may also order the preventive custody of the accused.  (Id. art. 4(1)(d)(10-11).)  The Law also allows for reparations for damages suffered in cases of unjust detention abroad during extradition procedures.  (Id. art. 4(1)(d)(13).)

Recognition of Foreign Criminal Decisions

The appellate court that renders a decision recognizing the execution of a foreign criminal decision must also establish the penalty that must be enforced in Italy. To that effect, the appellate court must convert the penalty established in the foreign decision into one of the penalties established by Italian law for the same facts; the penalty thus determined may not be more serious than that established in the foreign decision.  (Id. art. 4(1)(e)(3).)  If the penalty is conditionally suspended or if the convicted person is conditionally released in the State in which the decision was originally issued, then the Italian appellate court must also conditionally suspend the penalty or conditionally release the convicted person.  (Id.)

The Ministry of Justice must ensure compliance with the conditions required in certain cases for the enforcement in Italy or abroad of decisions whose recognition has been requested, provided that such decisions are not contrary to fundamental legal principles of the state. (Id. art. 4(1)(e)(4).)  Decisions on the recognition of foreign decisions to be enforced in Italy must be adopted “with the utmost urgency,” ensuring their timeliness and effectiveness.  (Id. art. 4(1)(f)(5).)  Decisions on recognition may be judicially challenged without suspending their enforcement, save in specific cases.  (Id. art. 4(1)(f)(7).)