Under Italian law, the entry of a name into the Interpol database constitutes a request from the State interested in the extradition, implying the adoption of precautionary measures prior to the forwarding of an extradition request: the Interpol alert, therefore, is not only a technical-operational tool through which international searches for a subject are expedited, but it is also an expression of the will of the State concerned to promote the extradition procedure, subject to the wanted person being subjected to measures of personal coercion.
SUPREME COURT OF APPEAL
SIXTH CRIMINAL SECTION
sent. 32492/16 dated 14-6-2016 (filed July 26, 2016)
JUDGMENT
against the order of 12/04/2016 of the APPEAL COURT of ROME
having heard the report made by Councilor EMANUELE DI SALVO;
having read/heard the conclusions of the PG PIETRO GAETA, who asked for the rejection of the
appeal
and of the defense lawyer, lawyer MMM, who asked for its acceptance.
Having heard the defense lawyer;
CONSIDERING THE FACTS
TL appeals to the Court of Cassation against the aforementioned order, with which the Court of Appeal of Rome rejected the request for release from custody due to the expiry of the terms of pre-trial detention, following provisional arrest on November 20, 2015, validated on 11/23/2015, scope of extradition proceedings initiated as a result of an arrest warrant issued on January 16, 2015 by the Court of Tangshan (People's Republic of China), for the crime of fraud, committed from February to August 2013, in China.
2. The claimant alleges violation of the law, in that the Treaty of Rome, stipulated between Italy and China regarding extradition and ratified by law no. 161 of September 24, 2015, establishes a term of 30 days from the arrest for the presentation of the extradition request. The extradition request was presented on 29/12/2015, after the Treaty had come into force. Article 21, paragraph 4 of the Treaty states that the new legislation introduced by the Treaty is applicable to any request presented after the Treaty came into force on 13/12/2015. The term “request” must be understood as referring to the extradition request and not to the report to the Interpol database, which is only an indication that a certain person is wanted. On the other hand, the deadline set by the Treaty is also applicable by virtue of the general principle tempus regit actum, since at the date of entry into force of the Treaty the appellant was still subject to the measure. Nor did the People's Republic of China request an extension, as it could have done, in accordance with art. 9, paragraph 4, of the Treaty. Therefore, the Court of Appeal erroneously considered art. 715, paragraph 6, of the criminal procedure code applicable in the case in question, since the measure had become ineffective.
We therefore request the annulment of the contested order.
CONSIDERED IN LAW
1. The complaint formulated is unfounded, even if it should be noted that the Court of Appeal erroneously based its decision on the criterion relating to the moment in which the arrest of the appellant took place, considering it decisive that the latter had been carried out before the entry into force of the Treaty, without taking into account the provisions of art. 21, paragraph 4, of the Extradition Treaty between Italy and China, ratified by law no. 161 of September 24, 2015. This latter law states that the Treaty applies to every request presented after its 1 entry into force, even if the relative crimes were committed in a previous era. As we can see, therefore, according to this provision, the moment the arrest took place - before or after the Treaty came into force - is completely irrelevant. Likewise, the principle of the application of the most favorable procedural rule, mentioned by the Court of Appeal, as well as the tempus regit actum principle, referred to by the appellant, is unrelated to the issue under examination, as it is impossible to ignore the provisions of the specific transitional rule, specifically dictated by the legislator, to the aforementioned art. 21, paragraph 4, of the Treaty, specifically referred to in art. 2 of law n. 161 of 2015.
2. It is therefore necessary to establish how the term “request”, referred to in the aforementioned regulation, should be interpreted. In this regard, it should be noted that the literal wording of the provision suggests a rather broad meaning of the aforementioned term, referring to “any request” submitted after the entry into force of the Treaty.
Based on this wording, it therefore seems arbitrary to limit the meaning of the term “request” to extradition requests only, excluding reports to the Interpol database. In fact, it cannot be denied that the latter is also a request coming from the State interested in the delivery, taking the form of a request for the adoption of precautionary measures, to be put into effect, as a matter of urgency, against a subject, prior to the forwarding of an extradition request. The aforementioned report, therefore, is not only a technical-operational tool through which international searches for a subject are initiated, but it is also a manifestation of the will of the State concerned to promote the extradition procedure, subject to the wanted person being subjected to measures of personal coercion. Therefore, it is not clear why the aforementioned report should be excluded from the list of requests contemplated by art. 21, paragraph 4, of the Treaty.
It is therefore to be considered that the regulations dictated by the Extradition Treaty apply where the report to Interpol was made by the requesting State after the Treaty came into force.
3. Since, in the case in question, the report to Interpol was forwarded prior to the entry into force of the Treaty, the regime provided for by the latter is not applicable. Instead, the provisions of art. 715, paragraph 6, of the criminal procedure code apply, according to which the extradition request, accompanied by the required documentation, must be received within 40 days from the communication referred to in art. 715, paragraph 5, of the criminal procedure code. : a term which, in the case in question, appears to have been respected, and therefore the measure has not lost its effectiveness.
3. The appeal must therefore be rejected, with the consequent sentencing of the appellant to pay the legal costs. The requirements of art. 94, paragraph 1-ter, att. disp. of the criminal procedure code must also be fulfilled.
PQM
The appeal is rejected and the appellant is ordered to pay the legal costs. Sent to the Registry for the formalities referred to in art. 94, paragraph 1-ter, implementing provisions of the criminal procedure code. Thus decided in Rome, on 14-6-2016 (filed July 26, 2016)