Extradition: from Snowden to Ablyazov, how it works in Italy and U.S.

Extradition: from Snowden to Ablyazov, how it works in Italy and U.S.

Recent political events have seen both the U.S. and Italy dealing with delicate international situations, both country stepping over the thin ice of international diplomacy. One is the already famous case of mr. Snowden and the attempt of the U.S. to have him back in the country, and the other one is the case involving the Kazakh dissident Ablyazov and the misfortunes occurred to his wife and daughter while in Rome.

Without deepening too much in the circumstances (you can easily find any info on the internet – Ablyazov; Snowden), both the cases touched one of the primary institution of the international law system, i.e. the extradition and its discipline. So let's see how it works in the U.S. and in Italy, with our usual comparative perspective.

1. Extradition: general definition

We can say that extradition is the surrender by one state or country of a person charged with a crime in another state or country. Through the extradition process, one sovereign country\state (the requesting one) typically makes a formal request to another sovereign country\state (the requested one). If the fugitive is found within the territory of the requested country\state, then the requested country\state may arrest the fugitive and subject him or her to its extradition process. Between countries, extradition is usually regulated by treaties, since a general principle in international law is that a state does not have any obligation to surrender an alleged criminal to a foreign state, because one principle of sovereignty is that every state has legal authority over the people within its borders. Such absence of international obligation, and the desire for the right to demand such criminals from other countries, have caused a web of extradition treaties or agreements to evolve. When there is no extradition agreement, expulsion can still be pursued through the immigration laws of the host country or, generally, throughout international diplomacy. Many countries (Italy among them) regulate the extradition process via their penal codes in the absence of an extradition agreement.

Is it in fact to remember that no country in the world has an extradition treaty with all other countries.

By enacting laws or in concluding treaties or agreements, countries determine the conditions under which they may entertain or deny extradition requests. Usual limitation or requirements to the extradition process may be:

• Dual criminality: the act for which extradition is sought must constitute a crime punishable by some minimum penalty in both the requesting and the requested parties;
• Political nature of the alleged crime: most countries refuse to extradite suspects accused of committing political crimes in their countries (one extreme and controversial example could be the famous Mitterand doctrine in the '80s );
• Possibility of certain forms of punishment: many countries can refuse extradition on the grounds that the suspect, if extradited, may receive capital punishment or face torture (E.U. Members).
• Principle of specialty: It means that once a person has been surrendered, he or she can be prosecuted or punished only for the crimes for which extradition was requested, and not for any other crimes committed prior to the surrender

Extradition can be active or passive, depending on whether one country is requesting or is requested to extradite the suspect.

2. Extradition in Italy

Article 13 of the Penal Code deals with the extradition discipline, stating that extradition is regulated by the Italian criminal law, treaties and international custom. Italy complies with both the dual criminality and the specialty principles (see above) and, according to the Constitution (art.10 and 26) extradition cannot be conceded for political crimes (genocide and crimes against humanity excluded) and the Supreme Court denied extradition in case the suspect may be punished with the death penalty. In addition, extradition is denied in the case, for the crime it is requested, the suspect will undergo a procedure not respectful of human rights or is likely to face torture or human rights violations.

Both for active and passive extradition procedures, the subject involved is the Minister of Justice. He will be the one requesting the extradition or the subject to whom extradition is requested.

The entire procedure is regulated by articles 697-719 (passive) and 720-722 (active) of the Italian criminal procedure code.

3. Extradition in the U.S.

Differently from Italy, the U.S. are a federal republic, so extradition can operate both between U.S. and foreign countries and between the singular states of the federation. For foreign countries the process is regulated by treaty and conducted between the Federal Government of the United States and the government of a foreign country. The process is considerably different from interstate extradition, or interstate rendition, as mandated by Article 4, Section 2, Clause 2 of the U.S. Constitution. So we have to divide between interstate extradition and international extradition.

3.1.Interstate extradition

This kind of procedures comes into play when a person charged with a crime under state statutes flees the state. An individual charged with a federal crime may be moved from one state to another without any extradition procedures.

That being said, The Extradition of Fugitives Clause in the Constitution requires States, upon demand of another State, to deliver a fugitive from justice who has committed a “treason, felony or other crime" to the State from which the fugitive has fled. 18 U.S.C. § 3182 sets the process by which an executive of a state, district or territory of the United States must arrest and turn over a fugitive from another state, district or territory (link).

Extradition from one state to another takes place on the order of the governor of the asylum state (the state where the accused is located). The courts in the asylum state have a somewhat limited function in extraditing the accused to the state where she or he is charged with a crime. They determine only whether the extradition documents are in order (e.g., whether they allege that the accused has committed a crime and that she or he is a fugitive) and do not consider the merits of the charge, since the trial of the accused will take place in the state demanding extradition.

The Supreme Court has states that there are only four grounds upon which the Governor of the asylum state may deny another state’s request for extradition: (1) the extradition documents on their face are not in order, (2) the petitioner has not been charged with a crime in the demanding state, (3) the petitioner is not the person named in the request for the extradition, and (4) whether the petitioner is not a fugitive.

3.2.International extradition

The United States has extradition treaties with more than 100 countries (link). Of the treaties most are dual criminality treaties with the remaining being list treaties. A list of countries with which the United States has an extradition treaty relationship can be found in the Federal Criminal Code and Rules, following 18 U.S.C. § 3181.

Foreign requests for extradition of fugitives from the United States are ordinarily submitted by the embassy of the country making the request to the Department of State, which reviews and forwards them to the Criminal Division's Office of International Affairs (OIA). The requests are of two types: formal requisitions supported by all documents required under the applicable treaty, or requests for provisional arrest.

When OIA received a foreign extradition request, in summary, the following occurs:

1. OIA reviews both types of requests for sufficiency and forwards appropriate ones to the district.
   
2. The Assistant United States Attorney assigned to the case obtains a warrant and the fugitive is arrested and brought before the magistrate judge or the district judge.
   
3. The government opposes bond in extradition cases.
   
4. A hearing under 18 U.S.C. § 3184 is scheduled to determine whether the fugitive is extraditable. If the court finds the fugitive to be extraditable, it enters an order of extraditability and certifies the record to the Secretary of State, who decides whether to surrender the fugitive to the requesting government. In some cases a fugitive may waive the hearing process.
   
5. OIA notifies the foreign government and arranges for the transfer of the fugitive to the agents appointed by the requesting country to receive him or her. Although the order following the extradition hearing is not appealable (by either the fugitive or the government), the fugitive may petition for a writ of habeas corpus as soon as the order is issued. The district court's decision on the writ is subject to appeal, and the extradition may be stayed if the court so orders. (Extradition procedure )
   

When comes to extradition to the U.S., the federal structure of the republic can pose some problems due to the federal hierarchy. For example, most of the criminal prosecution are at a state level, while most of the foreign relationships (like extradition) occur at a federal level. So, if a state wants to prosecute an individual located in a foreign country must direct its extradition request through the federal government, which will negotiate the extradition with the foreign country. However, due to the constraints of federalism, any conditions on the extradition accepted by the federal government — such as not to impose the death penalty — are not binding on individual states (see the European Court of Human Right decision Soering vs. United Kingdom).

That being said, it is always to remember that conceding or denying extradition could be matter of diplomatic opportunism or may depend on particular international strategies or needs. And of course, obtaining the extradition could depend on the forces and the powers involved. Extraditing a suspect could be used as an informal or not usual way of conducting one country's international affairs: from Pinochet to Snowden, passing through Noriega and the Mitterand doctrine, extradition dates back to at least the 13th century BC, and has always been one of the possible ways for sovereign international subjects to declare, affirm, deny or obtain each other's international recognition and respect.