Extradition is an international cooperation mechanism and involves a legal process that allows the transfer from one jurisdiction to another of an accused or convicted person.
In more detail, a State transfers to another State an individual who is in its territory, in order for that person to be subjected to trial (procedural extradition) or to the execution of a conviction (executive extradition) in the State requesting the procedure.
It should first be clarified that national and international legislation and/or agreements are guided by some (extremely significant) principles, namely: (a) the double criminality principle; (b) the principle of specialty; (3) the principle of ne bis in idem.
In the Italian Jurisdiction, the institute at hand is governed by three different legal sources:
Although, according to international law and under the principle of sovereignty, every State has legal authority over people who reside there, over the years, many jurisdictions decided to sign extradition agreements with other States. Nonetheless, as far as the Italian country is concerned, the person required to be transferred under extradition procedure is rights-holder: this is the reason why,
In particular, under substantial limitations, extradition is not allowed if:
According to formal limitations, instead, there must be a formal request from the foreign State and all the provisions included in the Italian Code of Criminal Procedure must be complied with.
Given the aforementioned overview on the Italian legal system, it should be pointed out that judicial cooperation represents the development of political and legislative measures adopted by different States – or other legal entities – and “stratified” over the years.
Whereas the achievement of “mutual trust” in criminal matters seems to be consolidated with the enactment of the “European Arrest Warrant” procedure within the EU scenario, judicial cooperations between EU Member States and Third Countries is still underpinned by international conventions, whose execution is, nonetheless, constrained by differences between their criminal regulations, as well as their different constitutional features.
As previously suggested, the European landscape is currently regulated by the principle of mutual recognition and trust of judicial decisions, legally embodied by the Council Framework Decision 2002/584/JHA of June 13, 2002, which introduced the European Arrest Warrant procedure (hereinafter referred to as “EAW”, transposed in Italy through Law no. 69/2005.
EAW is currently gaining ground within the European judicial praxis due to its simplified procedure, which aims at overcoming the previous extradition legislation provided for the European regulation.
Namely, EAW’s mechanism stimulates cooperation between Judicial Authorities, by excluding any political interferences in the procedure: differently from the national extradition scheme, for instance, the Italian Minister of Justice plays only a supportive and administrative role within the EAW scenario.
Indeed, considering the Italian legislation, the enforcement powers are assigned to the Court of Appeal within the district where the accused resides, which is the Authority called to decide on the EAW procedure, and to the Prosecutor who has issued the EAW order.
Furthermore, the assumption of double criminality, established by several bilateral conventions between the EU Member States and Third Countries, shall not apply with reference to a high number of serious crimes. Such violations are detailed by Article 2 of the Decision and Article 8 of Law no. 69/2005, and include participation in a criminal organization, corruption, frauds that affect the financial interests of the European communities and environmental crimes.
The exemption of double criminality principle unveils the key feature of the EAW, which is to simplify the EAW procedure through the unification of criminal regulation among the EU Member States. This condition clearly aims at strengthening judicial systems and mutual cooperation within the EU framework and conceals the purpose of reducing the sovereignty on criminal matters of each Member State: indeed, EAW Decision’s view is to harmonize Member States’ criminal regulations in order to guarantee an effective circulation of judicial decisions.
Nonetheless, the principle of mutual recognition and trust established by EAW procedure is counterbalanced by the need to comply with the fundamental rights guaranteed by EU law provisions, together with the relevant constitutional legislations set out by each Member State. In detail, the mechanism of EAW shall not be applied whenever the fundamental rights of the person interested may be violated by the order.
From this perspective, as suggested by the European Court of Human Rights (ECtHR), the Judicial Authorities of each EU Member State are called to verify whether the transfer of the person under arrest entails a violation of fundamental rights: in such hypothesis, the Authorities must apply EU Law rules in compliance with the Convention and, whenever required, refuse the EAW order.
Notwithstanding, the EU commitment to facilitate judicial cooperation in criminal matters shall consider the ECtHR and the European Court of Justice (CJEU) engagement to guarantee the safeguard of fundamental rights, at whose protection are also called each Member State’s Judicial Authorities.
On June 25, 2003, in Washington D.C., at the outcome of a meeting between the representative Authorities of the United States of America and the European Union, two fundamental agreements were concluded: the Agreement on Mutual Legal Assistance in Criminal Matters and the Agreement on Extradition.
These Agreements aim to set forth the conditions for the provision of mutual legal assistance in criminal matters between the U.S. and EU, as well as determining the requirements and conditions under which extradition can take place between them, in accordance with the respective national law and in compliance with fundamental human rights.
Such regulation does not replace existing bilateral agreements between each EU Member State and the U.S., but rather it is additional to them. However, if Member States have not already signed any treaty with the United States, or if the existing bilateral agreement conflicted with the 2003 Agreements, the latter will be completely effective and binding.
Turning more specifically to the content of the regulation, firstly, with reference to extraditions, the Extradition Agreement provides that an act shall entail such a measure if it is sanctioned under both requesting State’s and requested State’s law by a custodial judgment of a maximum of over one year or a more severe penalty.
Clearly, the Agreement spotlight is on death penalty’s issue. Indeed, Article 14 of the Agreement prescribes that, if the offence for which extradition is requested may be sanctioned by capital punishment, the requested State may allow it only under the condition that the interested will not be sentenced to death, or that the death sentence, if imposed, will not be carried out.
With regard to the legislation on mutual legal assistance in criminal matters, the most relevant novelties concern the possibility of setting up joint investigation teams to conduct criminal investigations requiring coordinated and concerted action between two or more States, all supported by a more intrusive use of available technological resources, including, in particular, videoconferencing connections.
On October 13, 1983, in Rome, the Italian Government and the United States of America’s Government signed the so-called Extradition Treaty, which was ratified in Italy by Law no. 222 of May 26, 1984, and came into force on September 24, 1984. Through this Treaty, the Authorities involved have recognized their close cooperation in the repression of crimes and have agreed to further enhance it by concluding a new agreement that settles the mutual extradition of offenders.
The Parties undertook to transfer each other individuals prosecuted or convicted by the authorities of the requesting Party for an extraditable offence. Moreover, it was decided not to recognize any exceptions for the Parties’ own nationals, for whom extradition cannot be refused if the Treaty’s conditions are met.
The agreed exceptions are noteworthy: extradition will not be granted if the offence for which it is requested is a political offence, or an offence under military law, if the latter is also not an offence under common criminal law. In addition, there is a provision that regulates the principle of ne bis in idem, providing that extradition should not be granted when the requested person has been convicted, discharged or pardoned, or has served the judgment imposed on him by the requested Party for the same acts for which extradition is requested.
Even this Treaty regulates the death penalty’s matter: Article 9 provides that if the crime for which extradition is requested is sanctioned with capital punishment under the law of the requesting Party and the requested State’s law does not provide for the same penalty, extradition shall be denied unless the requesting Party undertakes, with sufficient guarantees, not to impose or enforce death penalty.
In conclusion, a clause on assistance and representation has been inserted, whereby the authorities of the two States undertake to advise, assist and represent each other in any proceedings taking place in their own State and arising from an extradition request made by the other.
In the current global context, international cooperation is crucial for ensuring the effectiveness of global criminal justice. International organizations, particularly Interpol, play a pivotal role in coordinating efforts among States to prevent, investigate, and prosecute crimes that cross national borders.
Namely, Interpol’s primary goal and task are to assist national police forces in identifying criminals, recovering stolen property, and managing information related to international criminal activities. This mission is supported by a highly advanced technological infrastructure that enables data exchange, issuance of Red Notices (equivalent to international arrest warrant), and promotion of training programs to enhance police capabilities globally.
In the context of extradition, Interpol plays a key role in assisting States in locating and apprehending wanted criminals. When a State requests the extradition of an individual from another Member State, Interpol’s intervention takes several forms, among which the most significant is the issuance of the Red Notice. Although it does not constitute a binding arrest warrant, the Red Notice serves as an international request for the arrest of individuals wanted for serious crimes, such as drug trafficking, terrorism, or war crimes.
In addition to the Red Notice, Interpol provides support to national Authorities in cross-border investigations, including the sharing of intelligence on international criminal networks or monitoring the movements of criminals suspected of human trafficking or terrorism. Moreover, Interpol is involved in joint operations between different national police forces and offers ongoing training to enhance investigative capabilities.
Since January 1, 2025, Interpol has launched the global test phase for its "Silver Notice", an innovative tool proposed by Italy to trace and seize illicit incomes of transnational criminal organizations. The first request for 2025, issued by Italy, concerns an investigation into assets linked to global money laundering, valued at over 500 million euros. The aim is to intercept these assets and initiate judicial cooperation requests for their seizure. "Silver Notice" enables global communication of alerts and requests for information among Interpol’s 196 Member States, significantly contributing to the fight against international crime.
In addition to Interpol, other international organizations are also crucial players in the fight against transnational crime.
The United Nations, through its Office on Drugs and Crime (UNODC), promotes cooperation in addressing organized crime, drug trafficking, and corruption, while Europol helps coordinate criminal investigations among EU Member States.
Furthermore, national Agencies, such as the FBI, collaborate with Interpol and other international bodies to strengthen efforts to struggle against international criminal activities. Cooperation between these organizations facilitates the coordinated management of extradition requests and enhances the global response to crimes that exceed the capacities of individual States.
The joined efforts of these organizations ensure that no Country or Agency stands alone in addressing the complex and transnational nature of crime. The synergies between global, regional, and national Agencies provide a more robust and coordinated response to international crime, guaranteeing that justice is served more effectively and equitably on the global stage.
By facilitating multilateral coordination, sharing intelligence, and harmonizing legal procedures, the action of these Agencies is fundamental in the enhancement of the international justice system.
States may refuse an extradition request on specific political or legal grounds, which represent a fundamental limit to ensure the protection of human rights and state sovereignty.
One of the most common reasons for refusing extradition is the political nature of the offense for which the request is made. Protection against extradition for these offenses represents a crucial safeguard to prevent the extradition mechanism from being misused as a tool for political persecution or for the dissidents’ suppression. Both international and national legislation, as in the case of Italy, emphasize the protection of individuals' fundamental rights, ensuring that no one should be extradited to a Country where inhumane treatments, torture, or penalties that violate human dignity are regularly carried out.
As mentioned, in the Italian legal system, Article 698 of the Criminal Procedure Code, under the heading "Political Offenses Protection of Fundamental Rights”, provides that extradition cannot be granted for a political offense. It also prohibits extradition if there are grounds to believe that the accused or convicted person will face persecution or discrimination based on race, religion, gender, nationality, language, political opinions, or personal or social conditions. Moreover, extradition is prohibited if the person would be at risk of being exposed to cruel, inhuman, or degrading punishments or treatments that lead to a serious infringement of fundamental rights.
From a legal perspective, States may refuse extradition in several circumstances, striking a balance between international cooperation in combating crime and the protection of fundamental rights:
These grounds for refusal underscore the importance of ensuring that extradition requests adhere to principles of justice and fairness, preventing their misuse for persecution or abuse of power. They reflect a commitment to balancing international collaboration with the need to protect individual rights and uphold State sovereignty.
In conclusion, the complexities surrounding extradition and judicial cooperation between States highlight the delicate balance that must be struck between two equally important interests: the need to ensure justice across borders and the protection of fundamental human rights. The evolution of international legal instruments, such as the EAW, and the role of international organizations like Interpol show the development in facilitating cross-border cooperation. However, these improvements must never overshadow the priority of safeguarding the dignity and rights of individuals.
In a future perspective, it will be crucial for States to continue refining international agreements to address emerging challenges in the fight against global crime, while maintaining a strong commitment to the protection of human rights. The future of extradition and judicial cooperation will likely see a greater emphasis on technology and data sharing, further streamlining processes while raising important questions about privacy, security, and the balance of power between States. Ongoing dialogue and legal reform will be essential to address these issues, ensuring that global justice mechanisms remain both effective and respectful of human dignity.
