The arrest on an ICC arrest warrant is declared irregular as it was conducted without the involvement of the Minister of Justice which is mandatory under Italian implementing law.
COURT OF APPEAL OF ROME
SECTION IV CRIMINAL
REQUESTING AUTHORITY: International Criminal Court
WARRANT FOR PURPOSES OF: Trial
Proc. no. 11/2025 R.G. AGI
ORDER IN THE MATTER OF SURRENDER EX LEGE 237/2012 INTERNATIONAL CRIMINAL COURT
The Court sitting in chambers, composed of the following magistrates:
Flavio Monteleone (President)
Francesco Neri (Counselor)
Aldo Morgigni (Counselor)
Has pronounced the following ORDER
Subject Information:
Name: NAJEEM Osema Almasri Habish
Place of Birth: Tripoli, Libya
Date of Birth: 16 July 1979
CUI: 0742C7R
Alias: NJEEM Osama Elmasry / Almasri, NJEEM Osama Almasri, H NAJEEM Osema Al Masri
Subject to International Arrest Warrant No. ICC-01/11-149-US-EXP, issued on 18 January 2025 by the International Criminal Court for crimes against humanity and war crimes committed in Mitiga Prison (Libya) since 15 February 2011, punishable by a maximum sentence of life imprisonment.
Having read the communication from the Turin Police Headquarters (Mobile Squad - DIGOS) stating that the above individual has been provisionally taken into custody due to the aforementioned warrant:
Considering
The request of the Attorney General's Office, submitted on this date.
Defense petitions filed on this date.
The Court, pursuant to Articles 4 and 15 of Law 237/2012, notes the following:
The notice from the judicial police was transmitted in accordance with Articles 11 (precautionary measures for surrender) of Law 237/2012 and 59 (arrest procedure in preventive detention) of Law 232/1999. The same communication was forwarded on 19 January 2025 to the Ministry of Justice by DIGOS (Division of General Investigations and Special Operationsm a specialized unit of the Italian police focused on domestic security matters, such as counter-terrorism, organized crime, and politically motivated violence, which manages international law enforcement cooperation and handling sensitive investigations as well, added remark), Turin.
Although Article 11 is referenced correctly, the judicial police applied the extradition procedure outlined in Article 716 of the Criminal Procedure Code, which allows for initiative arrest on international warrants.
On the contrary, Law 237/2012 (by which the Statute establishing the International Criminal Court referred to in L.232/1999 was transposed into our legal system) does not provide for such a possibility for the Police Authority but prescribes a procedure analytically punctuated by Art. 11 for cases in which the request for surrender by the International Criminal Court has already been received and by Art. 14 for cases in which such a request has not yet been received, but the ICC makes a request for Provisional Application of the precautionary measure.
Even in the latter case, the procedure to be applied is still that of Article 11, which does not provide for any initiative intervention by the judicial police.
That being said, it seems barely worth noting that the procedure for the application of the precautionary measure envisaged by the aforementioned special legislation, prescribes a prodromal and indispensable interlocution between the Minister of Justice and the General Prosecutor's Office at the Court of Appeal in Rome (competence expressly identified by the provision itself), in deference to the principle enshrined in Art. 2, paragraph 1, of the same Law 237/2012, according to which “The relations between the Italian State and the International Criminal Court are exclusively taken care of by the Minister of Justice, who is responsible for receiving requests coming from the Court and following them up.”
It is easy to see from the above considerations that, in the present case, the “initiative” procedure of the judicial police, provided for in Art. 716 c.p.p. but not by the regulations provided for in the present case. It is true that the reference made by Art. 3 of L.237/2012 to the applicability - “where not otherwise provided by this law and the statute” - of the rules contained in Book Eleventh, Titles II, III and IV of the Code of Criminal Procedure allows to consider the procedure of surrender on a warrant of the International Criminal Court systematically framed among the extradition procedures provided for in Title II, but the application of the rules referred to in the aforementioned Article 3 of the law is possible only where the law itself has not provided on the point.
Well, in terms of the application of the precautionary measure, Law 237/2012 - in application of the founding statute of the C.p.i. referred to in L.232/1999 - has prescribed analytically the relative procedure, in which there is no provision pertaining to the possibility of intervention “on the initiative” of the judicial police, such procedure having to inalienably pass from the
1. Receipt of the acts by the Minister of Justice, “whose responsibility it is to receive the requests coming from the Court and to follow them up” (Art. 2, para. 1);
2. Transmission of the acts by the Minister of Justice to the Attorney General's Office at the Court of Appeal in Rome ("the Attorney General's Office at the Court of Appeal in Rome, having received the acts, ...OMISSIS) art. 11, para. 1;
3. Request of the attorney general to the court of appeal, for the application of the precautionary measure ("OMISSIS ... received the documents, requests the same court of appeal for the application of the measure of pre-trial detention'') art. 11, para. 1.
These circumstances preclude the possibility of deeming applicable in the present case the provision of Article 716 of the Code of Criminal Procedure, which constitutes a substantially different intervention not included by the legislature in the procedure in question and to which, for that reason, reference cannot be made through the reference of Article 3 above.
Since the procedure for the application of the precautionary measure has been by Law 237/2012, as said, specifically punctuated in all its passages, it must unequivocally accept the principle according to which ubi lex voluit dixit, by virtue of which the arrest on the initiative of the police in the procedure of surrender on a warrant of the ICC must be considered excluded insofar as it is not expressly provided for by the special legislation which, as said, has specifically provided for any fulfillment relating to the compression of the status /ibertatis of the person; this is also in consideration of the evident depth that such a provision (art. 716 c.p.p.) would have in the proceedings in relation to the constitutional principle of art. 13, paragraph 3, of the Charter.
These considerations are, in essence, shared by the opinion in this regard expressed today by the Attorney General, which below deserves to be reported in full:
The Attorney General
Having regard to the documents relating to the proceedings in question;
Having regard to the petition for release received today from Atorney *** on behalf of his client NAJEEM Osema Almasri Habish;
Having regard to the note with which this Court, today, requested this Office to express its opinion with regard to the aforementioned defense petition, “....concerning the precautionary position of the subject indicated above, in the face of the special nonnativa that regulates the case and, in particular, the applicability to such a procedure of the provisions of art. 716 c.p.p.” and to communicate, also, “whether there is, however, a request for the application of precautionary measures against the person concerned, pursuant to SerJSI of art. 11 L. 237/2012”;
requests
that this Court declare the irregularity of the arrest in that it was not preceded by interlocutions with the Minister of Justice, exlucisve holder of relations with the International Criminal Court, Minister who was questioned by this Office on January 20, 2012, immediately after receiving the documents from the Turin Police Headquarters, and which, to date, has not ha-facilitated no request In this regard.
As a result, the conditions for validation and, consequently, for a request aimed at the application of the precautionary measure are not met.
Hence the immediate release of the defendant.
To the same effect the above-mentioned defense applications are also intended.
That being said, the release of NAJEEM must be followed by the restitution of the assets referred to in the seizure record in the record - unless a seizure order has been issued in this regard by another prosecuting A.G. - since the same considerations made for the actual precautionary measure apply to the personal precautionary measure, in the absence of a request for the application of the measure by the Attorney General's Office for the reasons indicated in the same request referred to above in full.
For these reasons
The Court orders the immediate release of NAJEEM Osema Almasri Habish, unless detained for other reasons, and the return of seized property, unless covered by other proceedings.
Rome, 21 January 2025