Chile

Article 6 of the Italy–Chile Treaty provides that extradition may be refused if, at the time of the request, the person sought is a national of the requested Party, unless such nationality was acquired for the purpose of preventing extradition. Although the Court of Appeal’s assessment as to the alleged instrumental nature of the citizenship application is certainly incorrect (since the application was submitted in 2011, i.e., at a time not suspect because it predates the commission of the offences underlying the extradition request), it must nevertheless be noted that the optional refusal is entrusted to the discretionary assessment of the Minister of Justice, as correctly stated by the Court of Appeal. This constitutes the exercise of a power expressly provided for in accordance with Article 26 of the Constitution, which allows the extradition of nationals when it is provided for by international conventions, without prejudice to the possibility of an optional refusal of surrender based on a discretionary evaluation entrusted to the executive branch and outside the jurisdiction of the judicial authority.

Presence in the national territory as a prerequisite for extradition: the presence in the italian territory of the person whose extradition is sought constitutes an essential prerequisite for the request of the foreign state. it follows that, where it is established that the requested person is no longer present in italy, the conditions for ruling on extraditability are not met and the court must declare that there is no need to proceed.

The case concerned a statutory review under section 21 of the Australian Extradition Act 1988 of a magistrate’s order finding the applicant eligible for surrender to Chile under section 19(9) in relation to seven counts of aggravated kidnapping. The applicant challenged the arrest warrants, the description of the offences, the sufficiency of the statement of conduct, and argued that the magistrate should have required Chile to produce additional documents. She also disputed the existence of dual criminality and relied on all statutory extradition objections, including political offence, prohibited purpose, prejudice on account of political opinions, military offence, amnesty, pardon and limitation grounds. The Federal Court held that the extradition request contained the supporting documents required by the Act, that the statement of conduct was sufficiently specific and coherent for the purposes of the section 19 eligibility assessment, and that the alleged conduct satisfied the dual criminality requirement under Australian law. The Court further held that the applicant’s broader legality, amnesty and limitation arguments either fell outside the limited function of the section 19 stage or were matters for the Chilean courts or for the Attorney-General at the executive surrender stage. Since none of the grounds of review or extradition objections was established, the application was dismissed and the magistrate’s order confirming eligibility for surrender was upheld.

In the context of the extradition of a citizen of a European Union Member State to a third country, the obligation to inform the Member State of nationality arises only where the requested person is physically present within the territory of the European Union at the time the extradition request is made. No such obligation exists where the person is already outside the EU territory because he or she has already been materially surrendered to the requesting State pursuant to a prior final extradition decision. (Case concerning a German national already extradited to Chile, against whom a supplementary extradition procedure was initiated in relation to a different criminal offence.)

The case concerned the enforced disappearance of a detainee during the period immediately following the 1973 military coup led by Augusto Pinochet in Chile. The requested person, a former military officer, was sought for prosecution in connection with the kidnapping, detention, torture and disappearance of the victim, who was never found. The defence argued that the offence was time-barred under both Italian and Chilean law and that the requested person had merely followed superior orders. The Court held that the historical facts amounted to a complex criminal conduct equivalent, under Italian law, to kidnapping combined with voluntary homicide and constituting crimes against humanity not subject to statutory limitation periods. It further found sufficient evidentiary material linking the requested person to the victim’s unlawful detention and disappearance and therefore declared the conditions for extradition to Chile fulfilled.