The EU-USA summit held on June 25, 2003, in Washington concluded with an agreement on mutual legal assistance and extradition to be implemented in all European Union member states.
Extradition is a formal process through which one country transfers a suspected or convicted criminal to another country to face trial or detention.
At the heart of the dialogue between the European Union and the United States is an understanding in the fight against organized crime and transnational terrorism.
The agreement supplemented existing bilateral treaties between some member states and the United States and established a basis for cooperation with countries that did not yet have agreements.
Italy ratified and made this agreement effective with Law No. 25 of March 16, 2009, but the collaboration between Italy and the United States has deep roots. The bilateral extradition treaty in force between the two countries dates to October 13, 1983.
What do the agreements between the EU and the USA entail?
It should be noted that the "requesting state" refers to the state requesting extradition, and the "requested state" refers to the state in whose territory the person for whom extradition is requested is located. The current agreements with the United States provide that:
- The requesting state may transmit an extradition request, accompanied by supporting documents, through diplomatic channels. If these documents are accompanied by certification or the seal of the requesting state's Ministry of Justice, or the competent Ministry/Department for Foreign Affairs, no further authentication formalities are required.
- The requesting state may transmit requests for provisional arrest through the Ministries of Justice instead of through diplomatic channels. Alternatively, it may forward requests through the International Criminal Police Organization (Interpol).
- When the requesting state requests the extradition of a person already in provisional arrest in the requested state, it may transmit its request directly to the embassy of the requested state located in its territory.
- The requested state, which deems the information provided in support of the extradition request insufficient for its execution, may require the requesting state to provide additional information through dialogue between the Ministry/Department of Justice.
- If one of the two countries holds the person for whom extradition is requested in provisional arrest, the requesting country may perfect its request by submitting all documents to the embassy of the state where the person is held, located in its territory.
- The date of receipt of the request by the embassy will be considered the relevant date for the 45-day period, which must be respected to allow the continued detention of the person.
- Any additional information may be transmitted directly between the Italian Ministry of Justice and the U.S. Department of Justice. (This situation was neither specified nor foreseen in the 1983 Extradition Treaty).
- If multiple countries request the extradition of the same person for the same crime (or for different crimes), it is up to the authority of the state where the person is located to decide to which state to hand them over. The same applies if the United States submits an extradition request for a person for whom a European arrest warrant is pending for the same crime (or for different crimes): it is up to the competent authority of the requested EU country to decide to which country to hand the person over.
- The principle of specialty limits extradition to the specific charge for which it is granted, granting the extradited person immunity in the requesting country for other offenses.
- The requested state may shorten extradition times and deliver the person as quickly as possible without further formalities when the individual concerned consents to their delivery.
The most important changes compared to the past
The most significant and impactful changes introduced in 2003 (effective in Italy since 2009) concern the use of modern and technological resources, which could not have been foreseen in 1983 and which also facilitate teamwork between geographically distant countries:
- In order to conduct criminal investigations requiring coordinated and concerted action between the two states, the possibility of establishing joint investigative teams, supported by technological resources, has been provided for and regulated.
- Regarding testimonies from persons located in the state where the individual is detained, such testimonies can be given and obtained using video transmission techniques between the two states.
- The use of fast communication methods to conduct video conference connections has been regulated in general.
- It is possible to identify the accounts and financial transactions of individuals for whom extradition is requested: the requesting state can determine whether a natural or legal person suspected/accused of a crime holds one or more bank accounts in the banks located in the requested state's territory and proceed with the possible seizure and/or confiscation of assets.
If the individual, a European citizen, for whom extradition to the United States is requested, is in a "third" European country, the latter may proceed with extradition after informing the authorities of the country of origin and in the absence of measures from the same.
The Issue of the Death Penalty
The treaty between the USA and Italy provides for extradition only for offenses punishable by a custodial sentence of more than one year or a more severe penalty under the laws of both states.
In the case of convicts, extradition is granted only if the remaining sentence is at least six months.
The European state to which the United States requests the surrender of a person may grant extradition for an offense punishable by the death penalty under U.S. law but not under its own law, provided that:
- The person is not sentenced to death;
- The death sentence, if imposed, is not carried out.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.