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Italy: New Legislation on International Judicial Cooperation in Effect

(Dec. 6, 2017) On October 31, 2017, comprehensive new legislation on extradition and other forms of international judicial cooperation entered into effect in Italy. (Legislative Decree No. 149 of October 3, 2017, Provisions Amending Book XI of the Code of Criminal Procedure on Jurisdictional Relations with Foreign Authorities (L.D. No. 149), GAZZETTA UFFICIALE (Oct. 16, 2017), NORMATTIVA (in Italian).) L.D. No. 149 amends not only the Italian Code of Criminal Procedure (C.P.C.) provisions on extradition, but also those concerning requests for international judicial assistance, the legal effect of foreign criminal decisions, the execution of Italian criminal decisions overseas, and other matters related to cooperation with foreign criminal authorities. (L.D. No. 149, art. 1.1.)

The Decree provides that Italy’s judicial assistance relations with Member States of the European Union are governed by EU law (including EU implementing legislation), general international conventions, and applicable general international law (id. art. 2.1), while such relations with non-EU members are governed by international conventions in force between Italy and the respective state and by general international law (id. art. 2.2).

Mutual Recognition of Judicial Decisions with Other EU Members

As already established in current legislation, judicial decisions and decrees issued by competent authorities in other EU Member States may be recognized in Italy. (Id. art. 2.4, adding art. 696-bis (2) to the C.P.C.) However, the new Decree streamlines procedural issues providing that the competent Italian judicial authorities that receive requests for judicial cooperation communicate directly with their EU Member State counterparts and send them information related to the recognition and enforcement of the judicial decision or decree on the given criminal matter. (Id. art. 2.4, adding art. 696-quarter (1)-(2) to the C.P.C.)

Under L.D. No. 149, Italian judicial authorities must recognize and enforce those decisions and decrees, provided that there are no reasonable grounds indicating that the criminal defendant or the person convicted will be subject to acts constituting a serious violation of the fundamental principles of the Italian legal system or EU law. (Id. art. 2.4, adding art. 696-ter(1) to the C.P.C.) Recognition and enforcement must proceed without delay and may not entail a review of the merits of another EU judicial decision or decree, unless the applicable legislation provides for an exception. (Id. art. 2.4, adding arts. 696-quinquies(1) & 696-octies(1) to the C.P.C.) The Italian Minister of Justice must guarantee compliance with the conditions established in each case by the requesting EU judicial authorities. (Id. art. 2.4, adding art. 696-sexies (1) to the C.P.C.)

The new Decree states that decisions on the recognition and enforcement of a decree issued by a judicial authority of another EU member state may be appealled according to the means established by the Italian C.P.C. (Id. art. 2.4, adding art. 696-novies(1) to the C.P.C.) Judicial decisions and decrees that are deemed to adversely affect the personal freedoms of the concerned persons may be challenged through a writ of cassation for violation of Italian law. (Id. art. 2.4, adding art. 696-novies(2) to the C.P.C.) No appeal may be lodged on the basis of the merits of a decision, unless a specific exception is established in the applicable legislation. (Id. art. 2.4, adding art. 696-novies (3) to the C.P.C.) Third parties that are interested in the enforcement of the respective decision or decree may intervene in good faith in the recognition procedures. (Id. art. 2.4, adding art. 696-decies(1)-(2) to the C.P.C.)

Admissibility of Extradition Requests  

L.D. No. 149 states that the Ministry of Justice may refuse a request for judicial cooperation when the requesting state does not provide adequate guarantees of reciprocity, or when the request may compromise the sovereignty, security, or essential interests of the Italian state. (Id. arts. 2.4. & 4(1)(a)(2).) In accordance with an applicable international convention, the Ministry may reject the extradition of a citizen, taking into account the gravity of the facts, the relevance of the interests involved, and the personal condition of the person who is the subject of the request for extradition. (Id.)

Additionally, Italian judicial authorities may reject a request for extradition submitted by another country upon determining that the person concerned is likely to be subject to acts of persecution or discrimination for reasons of race, religion, sex, nationality, language, political opinion, or personal or social conditions; or to the death penalty or cruel, inhuman, or degrading punishment or treatment; or who in any way is likely to suffer a violation of fundamental human rights. (Id. art. 4(1)(a)(3)(f).) In particular, the legislation repeals language that previously allowed Italian judicial authorities to accept a request for extradition when a requesting state whose domestic legislation included the death penalty provided assurances that the death penalty would not be imposed. (Id. art. 4(1)(a)(3)(b)(1).)

Procedure for the Review of Extradition Requests Submitted by non-EU Countries

Within 30 days of receiving a request for extradition submitted by a country outside of the EU, the Minister of Justice must decide whether to approve or reject it, and if the Minister accepts it, the appropriate documentation must be sent to the general prosecutor of the respective territorial appellate court for the execution of the extradition. (Id. art. 4(1)(a)(3)(d)(1).) The general prosecutor then orders the possible extraditee to appear for identification and interrogation, to determine whether he/she will consent to be extradited. (Id. art. 4(1)(a)(3)(d)(2).) The person is to be informed that he/she can appoint an attorney or the court will appoint a public defender. (Id.) When the extradition of a person from one non-EU state to another requires transit through Italian territory, the Minister of Justice must issue the respective authorization upon application from the requesting state, provided that the transit does not compromise the sovereignty, security, or essential interests of the Italian state. (Id. art. 4(1)(a)(3)(l).)

The Minister of Justice must decide on a request for judicial cooperation submitted by a foreign authority within 30 days of receiving the request. (Id. art. 6(1)(a).) Requests for judicial assistance that entail the gathering of evidence or the sequestration of assets for purposes of confiscation must be transmitted to the prosecutor of the district where the requested measure will be executed.  (Id. art. 6(7)(b)(1).) Special provisions are included on the extradition of persons connected to mafia activities or terrorism. (Id. art. 6(9).)

Execution of Foreign Criminal Decisions in Italy and of Italian Criminal Decisions Abroad

Appellate courts with jurisdiction in the territory where the foreign criminal extradition decision is to be implemented must decide on the request for extradition within 90 days, hearing the opinion of the respective prosecutor, the interested person, and his defense counsel. (Id. art. 8(1)(d).) The Minister of Justice must ensure that requests for the execution of Italian criminal decisions sent overseas comply with all the conditions established by the requesting state for acceptance of such requests. (Id. art. 9(1)(b).)