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.

Vocabulary, pt.3

U.S. - Italian legal vocabulary pt. 3

We return with our weekly (or so) appointment with “legalese" and legal expressions.

1.jurisdiction = the legal power, right or authority to hear and determine judicial proceeding = giurisdizione\competenza giurisdizionale

to come under the jurisdiction of =cadere sotto la giurisdizione di

the court entertains jurisdiction=il tribunle è competente

equitable jurisdiction=giurisdizione competente

2.liability = legal responsibility for something = responsabilità.

When someone holds liability is called liable. Remember, one is guilty of crime but liable for a tort. Liability in its plural is liabilities, but in this case liabilities = amount of debt (opposite of assets)

3.petition =request signed by numerous people\ official letter to a law court asking for a legal case to be examined (file a petition) = petizione.

To petition means to ask official organisms to do something.

4.writ =document from a court that orders somebody to do or not to do something = mandato\ordinanza\precetto

writ of summons = citazione a comparire

to issue a wri = emettere un mandato

to serve a writ on somebody =notificare un mandato a qualcuno

5.to advocate =to support or recommend publicly\plead for or speak in favour of = sostenere\ promuovere (una causa).

Similarly to the word “convict” (link), advocate could be the verb we have just seen above (to be read as /ˈædvəˌkeɪt/ ) or the noun (to be read as /ˈædvəkɪt; -ˌkeɪt/), meaning a person who upholds\supports a cause, somebody who intercedes for another, or a person who pleads his client's cause in a court of justice (also synonymous of barrister) = difensore, patrocinatore, sostenitore.

6.claim =cause of an action, demand for money or property = domanda di giudizio, istanza, rivendicazione, reclamo, richiesta

to rebut a claim =confutare una tesi

rightful claim = richiesta legittima

wage claim =rivendicazione salariale

claim for damages =richiesta di risarcimento danni

claim for liability = azione di responsabilità contrattuale

to lay a claim to something = rivendicare un diritto su qualcosa

to lodge a claim =presentare reclamo

to file a claim for losses =presentare domanda di indennizzo

to plead a claim = patrocinare un'istanza

to claim= to demand as being due or as one's property\assert one's title or right to =esigere, rivendiccare, reclamare

to claim damages = chiedere i danni

to claim one's rights =rivendicare i propri diritti.

7.evidence =something\data on which to base proof or establish truth or falsehood = prova

in absence of evidence to the contrary = fino a prova contraria

to give evidence = testimoniare

Prescription and statute of limitation. General differences between Italy and U.S.. The case of private Berlusconi.

Prescription and statute of limitation. General differences  between Italy and U.S..
The case of private Berlusconi. 

The recent events involving the Italian former prime minister Silvio Berlusconi and weather or not he could be found guilty by the Corte di Cassazione revolve on one particular juridical topic: prescription. I thought it could be matter of comparative- law discussion.

What is prescription?

In the broadest sense of the word, we can say that prescription denotes the acquisition or extinction of rights by laps of time. Facing this juridical institution we may need to examine some clarifications.

Prescription and limitation

In the field of prescription there are differences in the use of terminology and the definition that are mostly used: prescription itself and limitation. And they can be applied to both civil and criminal law.

The former is often found, although not exclusively, in the civil law context, while the latter is the generally accepted term in common law jurisdictions.

Generally speaking, the fundamental distinction to be made between prescription and limitation appears to depend on whether the issue is if the claimant’s right to bring an action has been barred or if the right in the object has been altered by a duration in another’s possession. Limitation focuses on the action or claim while prescription refers to the impact of the effluxion of time on the underlying right to ownership (in civil cases). Both terms lead to similar objects, the possible extinction of a claim or a right, but prescription appears to be wider because it allows for the possibility of the acquisition of rights (for a deeper and more complete analysis, take a look at this link - although it is about Jersey, it will give you a general academic approach to the issue).

Prescription is a term first found in the Roman Law, and it could- and still can - be acquisitive or extinctive. If it is acquisitive it allows to acquire title to an object or property after a specified period of time; if it is “extinctive” it extinguishes the right of the previous owner or possessor. Thus, the effect of acquisitive prescription is to create a new right.

So we have said that prescription\limitation is the acquisition\extinction of one's right by the passing of time. But can this period of time be interrupted?

In the U.S. legal system there is an institution known as tolling,while in the Italian system we have both interruption and suspension of the prescription period.

The difference between these two types of “interruption” reflects the substantial difference between prescription and limitation in the two legal systems.

We can say that, in the U.S., a statute of limitation (i.e. the enactment that sets the maximum time after an event that legal proceedings based on that event may be initiated ) is a way of determining if a legal action can still be taken. Certain types of legal actions must be started (commenced) within a certain specified period of time.

The Italian criminal law is quite peculiar in this regard, because criminal lawsuits and trials must be ended, rather than started, within such a time limit.For criminal cases, this means that the public prosecutor must prosecute within some time limit. The time limit varies increases with seriousness of the alleged crime. When a time limit is suspended, it does not run (like hitting “stop” on a watch) . When a time limit is interrupted, it is restarted (like hitting reset).

As you can easily imagine, this allows to avoid a guilty sentence by delaying the trial enough for the time limit to expire.

In the U.S. legal system, when the statute of limitations is tolled, it basically means that it is paused or "stops running." With the statute of limitations, the plaintiff\ prosecutor has a limited period of time to commence the action. If they don't commence the action within the period of time, they can't bring it in the future. When the statute of limitations is tolled, the plaintiff\prosecutor will basically get an extension to the period of time they have to start the case.

Certain conditions will toll a statute of limitation, like when the plaintiff is a minor or the person is not physically present in the state that has the jurisdiction.

Going back to the top of the post, in Italy we are having a huge political debate, because the Italian Supreme Court decided to anticipate the hearing of mr. Berlusconi trial on the 30^th of july in order to avoid the prescription of the charges (the crime he is proceed against will fall under prescription in september).

Giving the juridical infos above provided, you can easily deduct that in the U.S. this would not have represented a problem, since once the action has been started within the right time, it cannot be barred by prescription in the future. And that maybe, in the U.S., the former prime minister's private judicial events would not thwart nor condition the political life of the country in such a delicate time.

Jury, pt.3. Jury Nullification: legal and cultural perspective.

Jury, pt. 3
Jury Nullification: legal and cultural perspective.

Since the presence of the jury is one of the main differences between the Italian and the U.S. legal system (if not the most evident distinction between a civil and a common law system), it requires more then only one post. Plus, in one of the previous posts (Jury pt.2), we left with the promise of analyzing this particular power of the jury: the nullification.

First of all, what is it?

According to quite every legal dictionary you will look up, the jury nullification occurs when a jury returns a verdict of "Not Guilty" despite its belief that the defendant is guilty of the violation charged.The jury in effect nullifies a law that it believes is either immoral or wrongly applied to the defendant whose fate that are charged with deciding.

The american jury draws its power of nullifications form a series of rights, such as rendering a general verdict in criminal trials, the inability of criminal courts to direct a verdict no matter how strong the evidence, the Fifth Amendment's Double Jeopardy clause, which prohibits the appeal of an acquittal, and the fact that jurors can never be punished for the verdict they return.

Jury nullification is most often, although rarely, exercised in criminal trials but technically is applicable to civil trials as well, where it is subject to civil procedural remedies such as Judgment not withstanding the verdict.

As many of you may have noticed, this power implies that the jury can decide about the application of the law, a tasks usually demanded to the judge (for a fast recap, see Jury pt.1). Indeed we can say that, when pronouncing a nullification, the jury de facto introduces its own interpretation of the law and/or disregards the law entirely in reaching a verdict. Which is a strong exception to the general division of power between judges (the ones applying the law) and jurors (triers of fact).

To better understand this particular power (indeed the most widely accepted understanding of jury nullification by the courts is one that acknowledges the power but not the right of a juror or jury to nullify the law) it may come in handy brushing up on some historical background.

Jury nullification dates back to the early U.S. history, when the colonists struggle to fashion a legal system applicable to them. Colonists lived under what they deemed an undemocratic, tyrannical government. The jury became a shield, where colonists could be judged by members of their own communities, and it was considered their only means for democratic expression. Second, the entire premise of democracy, in both pre- and post-independence days, demanded popular control of all facets of government. There was also a practical side to granting juries such unyielding control of trials: early colonial judges were essentially laymen selected from among their peers, and they often knew no more law than did the jurors (legal dictionary).

Once the U.S. established their own independent form of government, the will of people became expressed through democratic election and the enactment of their own laws. Nullifying the law would so represent a frustration of the popular will and the issue became essentially moot.

Its practice has reappeared whenever the government has tried to enforce unpopular or morally repugnant laws; historical examples include the Alien and Seditions Acts (http://en.wikipedia.org/wiki/Alien_and_Sedition_Acts), the Fugitive Slaves Acts (http://en.wikipedia.org/wiki/Fugitive_Slave_Act_of_1850), during Prohibition or the Vietnam War.

Notwithstanding a judiciary that denied jurors the right to nullify, over the years, jurors have continued to use their power to do so. The power is most often wielded when jurors believe that an acquittal is justified for reasons that the law does not officially recognize.

It is worthy to underline that, due to the Fifth Amendment's Double Jeopardy clause (which prohibits the appeal of an acquittal), jury nullification can be a defense strategy (Clay S. Conrad (1995), Jury Nullification as a Defense Strategy).

As always, the end of a post set the topic for the next one.

P.S. 

Of course, given the specific nature of this topic (the jury), there is no particular comparative observation to add to those we already made when we first analyze the institution of the jury (Jury pt.1).

Vocabulary pt.2 : nouns of crimes and U.S murder classification

U.S. -Italian legal vocabulary, pt.2

Nouns of crimes and U.S. murder classification.

As promised, we continue to improve our (your) legalese with some terms and expressions. This time is matter of nouns of crimes.

arson = setting fire to a building = incendio

assassination = killing a public figure intentionally

assault = acting in a way as to make someone believe he\she will be hurt

bigamy = getting married when you are still married to someone else = bigamia

blackmail = getting money\personal advantage from people by threatening to publicize facts they don't want to reveal = not dissimilar to estorsione

bribery = offering money corruptly to get someone to do something for you = corruzione

burglary =entering a building illegally and committing an offense = violazione di domicilio

embezzlement =the crime of stealing the funds or property of an employer, company or government or misappropriating money or assets held in trust = similar to appropriazione indebita

espionage =the crime of spying on the federal government and/or transferring state secrets on behalf of a foreign country. The other country need not be an "enemy," so espionage may not be treason, which involves aiding an enemy = spionaggio (these days breaking news with the Snowden case)

extortion = threatening a victim's property or loved ones through intimidation or false claim in order to obtain money or property = estorsione

forgery = counterfeiting or otherwise altering a document, records, identity, signature etc with an intention to fake the document and draw undue benefit from that act = similar to contraffazione

fraud = doing of any wrong activity with an intention to gain undue or illegitimate advantages at the detriment of the sufferer = frode

libel = writing, publishing or broadcasting a statement which damages someone's character = diffamazione

manslaughter =killing or cause to death of a person without a pre-meditation or intention to kill or cause death, whether voluntarily or otherwise. In manslaughter there is no intention or pre-plan to kill but killing or death occurred due to an impulsive act or a careless act= omicidio preterintenzionale

murder = killing or death of a person by another sane person unlawfully and proved to be under no authority to kill or with the intent of killing the other because of malice or revenge. Murders fetch highest of punishments.The forms of murders are different and described separately in court of law, depending on which they are termed first degree or second degree murders where the punishment level differs. If the death is intentional and pre planned, it is a first degree murder. It can also be a result of negligence or recklessness, where a heavy bodily harm may or may not be intended, will have less serious impact, though still a serious matter = omicidio volontario, different from a negligent homicide (= omicidio colposo) because of the mental state (mens rea) of the murderer

perjury = giving a false information or statement which was testified under the oath = falsa testimonianza

piracy =unauthorized use or appropriation of patented or copyrighted material = pirateria

slander = saying something that damages someone's reputation = ingiuria. Same thing as libel, but libel is written, while slander is oral

smuggling = illegal transportation of goods or person across an international border = contrabbando

theft =stealing\ taking someone else's property = furto

treason = treachery, betrayal to ones own country usually by the way of supporting and purposely aiding the enemies = tradimento

Like in every other country (almost every), also in the U.S. crimes are classified by their gravity. In U.S. they are divided between felony and misdemeanor. The federal government defines a felony as a crime punishable by death or imprisonment in excess of one year. If punishable by exactly one year or less, it is classified as a misdemeanor (US Code).

It can be compared with the distinction between delitti and contravvenzioni made by the Italian penal code on the grounds of the punishment applicable.

Another point worth of being analyzed here is how an homicide can be classified according to its gravity and course of action. At base, murder consists of an intentional unlawful act with a design to kill and fatal consequences. Under U.S. federal law, murder is classified as the unlawful killing of a human being with malice aforethought (=premeditazione) (definition). Malice is the intention to kill, and can be expressed or implied (similar to italian dolo).

States have adopted several different schemes for classifying murders by degree. The most common separates murder into two degrees, and treats voluntary and involuntary manslaughter as separate crimes that do not constitute murder.

first degree murder: any murder that is willful and premeditated (definition);

second degree murder: not premeditated or planned in advance (definition);

voluntary manslaughter: intentional killing in which the offender had no prior intent to kill, such as a killing that occurs in the "heat of passion." The circumstances leading to the killing must be the kind that would cause a reasonable person to become emotionally or mentally disturbed (definition);

involuntary manslaughter: unintentional killing that results from recklessness or criminal negligence, or from an unlawful act that is a misdemeanor or low-level felony. The victim is unintended (definition.

Some states classify their murders differently. In Pennsylvania, California, and Massachusetts, first degree murder encompasses premeditated murders, second degree murder encompasses accomplice liability , and third degree serves as a catch-all for other murders. In New York, first-degree murder involves "special circumstances," such as the murder of a police officer or witness to a crime, multiple murders, or murders involving torture.Under this system, second degree murder is any other premeditated murder. The New York statutes also recognize "murder for hire" as first degree murder.Texas uses a similar scheme to New York, but refers to first-degree murder as "capital murder," a term which typically applies only to those crimes that merit the death penalty. Some states, such as Florida, do not separate the two kinds of manslaughter (illinois first degree; illinois second degree).



In opposition to this classification, the Italian system divides the homicide into three categories: omicidio volontario, omicidio preterintenzionale and omicidio colposo, depending on the fact if the death was wanted, was the unwanted consequence of battery or other crimes, or it was caused out of negligence.