Extradition within international judicial cooperation: new challenges and future perspectives

Andrea Puccio*

Puccio Penalisti Associati, Milan and Brescia

puccio@pucciopenalisti.it

Extradition is a cornerstone of international judicial cooperation, the discipline of which is articulated in a complex system of multilevel legislation, based on bilateral and multilateral treaties, as well as conventions adopted by supranational organisations, such as the UN and the Council of Europe. This legal mechanism satisfies the need to ensure the effective administration of justice in transnational crime cases, preventing individuals accused of serious crimes from escaping criminal consequences simply by crossing national borders.

Legal foundations and operating principles

Extradition allows the relocation of a person from one (requested) state to another (requesting) state for two main purposes: to allow a criminal trial to take place (so-called procedural extradition); or to allow a final sentence to be enforced (so-called executive extradition).

The relevant legal framework is based on established and fundamental principles:

1. The double jeopardy principle (Article 13 paragraph 2 of the Criminal Code): which makes the granting of extradition conditional on the fact being provided for as an offence in both of the legal systems involved.
2. The specialty principle: which forces the requesting state to proceed only for the specific facts that are the subject of the extradition request.
3. The ne bis in idem principle: which prevents the extradition of a person who has already been finally judged in the requested state for the same offence, even if it qualified differently.

The Italian regulatory framework and international developments

In the Italian legal system, the institution of extradition is governed first and foremost by the Constitution, which allows it to be granted only in cases expressly provided for in international conventions, excluding crimes of a political nature. This discipline is thoroughly examined in detail in the Criminal Code and the Code of Criminal Procedure, which both define its application methods.[1]

As international cooperation evolved, the regulatory system transcended national borders, developing through treaties and agreements to create a common set of rules at a global level. This process has been driven by the need to make criminal justice more effective in the international context.

At European level, cooperation is based on the principle of mutual recognition and trust of judicial decisions, which led to the introduction of the European Arrest Warrant (EAW),[2] an essential tool for simplifying and speeding up extradition procedures between Member States, fostering greater cooperation between judicial authorities.

Relations with third countries, on the other hand, do not find an equally standardised discipline, being based on international agreements and conventions signed between the various states.

As far as Italy is concerned, the most significant agreement is the Extradition Treaty[3] signed with the US, which formalises cooperation between the two countries in the fight against crime. Moreover, Italy is bound by the Treaty on Mutual Assistance in Criminal Matters and the Extradition Agreement,[4] signed between the EU and the US, to set the conditions for the provision of mutual legal assistance in criminal matters, as well as the requirements and procedural conditions for the implementation of extraditions.

Despite the vast network of treaties and agreements, the main challenge in international extradition is to balance the effectiveness of justice with the protection of human rights. In this context, it becomes essential to find a convergence point between the different legal systems, particularly with regard to fundamental rights protection guarantees.

In the European scene, a pivotal role is played by the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU), which have established strict standards on the minimum guarantees to be respected in terms of detention conditions and protection of human rights.[5] Among the fundamental pillars, it is worth mentioning the principle of so-called non-refoulement, enshrined by the ECtHR, as well as the United Nations Guidelines, which precludes extradition in the presence of real and effective risks of violation of the human rights of the person concerned.

On a global scale, the death penalty effectively exemplifies the divergences between legal systems, as its persistence in the US system causes an irremediable conflict with the fundamental principles uniformly recognised by the various European countries. The trade-off identified is to allow extradition on the sole condition that the individual does not risk death sentence or that, if convicted, capital punishment is not executed.

Contemporary challenges and future perspective

The balance between international cooperation in the fight against crime and the protection of human rights is an increasingly prominent legal and value challenge.

Harmonisation of legislation and technological breakthroughs offer opportunities to make judicial action more effective, but it is essential that these developments do not compromise fundamental freedom. The digitisation of extradition procedures is an important opportunity to speed up international cooperation, but it also raises significant questions regarding the protection of sensitive data and cybersecurity. The adoption of artificial intelligence systems for tracking wanted persons and the automation of certain procedural steps could change the whole system, but this must take place within an appropriate legal framework that guarantees the protection of fundamental rights.

It is only through a constant dialogue between legal systems and an approach which is respectful of democratic principles and fundamental rights of the individual that it will be possible to meet future challenges in transnational justice.

The evolution of extradition is a significant indicator of the ability of states to adjust to the challenges of globalisation by changing their legal systems without ever sacrificing the fundamental principles of the rule of law. The success of this transformation will depend on the ability to maintain a constant and productive international dialogue, as well as the search for innovative solutions that are able to guarantee an increasingly transnational justice without compromising human rights and individual freedom.