Pakistan

In the absence of an extradition treaty between Italy and Pakistan, the rules of the Italian legal system apply, in particular Article 698(2) of the Italian Code of Criminal Procedure, which does not allow “prosecutorial” extradition to a foreign State (nor the application of a coercive measure) where the offence for which extradition is sought is punishable by death in the requesting State. Indeed, in the absence of a final foreign judicial decision excluding the application of the death penalty in the specific case, the Italian judicial authority has no margin of discretion. Consequently, under the current legal framework, no decisive weight may be attached to the assurances contained in the “certificate of moratorium on capital punishment” attached by the Pakistani authorities to the extradition request, stating that the Government of that State has suspended executions and that, should the death penalty be imposed, it would not be carried out without the prior consent of the Italian Government.

Precautionary measure: the requirements of concreteness and present relevance of the risk of flight must be assessed by the court in light of the purpose of surrender to which the procedure is directed. Such assessment must therefore be based on a prognostic judgment, grounded on specific elements drawn from the requested person’s life, as to the risk that he or she may evade surrender by leaving the national territory. (In the present case, the risk of flight was inferred from the manner in which the requested person had clandestinely travelled from one continent to another, under extremely harsh conditions and exposing himself to very serious risks to his personal safety).

Pursuant to Article 698(2) of the Italian Code of Criminal Procedure, where the offence for which extradition is sought is punishable by death under the law of the requesting State, extradition may be granted only where the judicial authority has ascertained that a final and irrevocable decision has been adopted imposing a penalty other than the death penalty or, if the death penalty has been imposed, that it has been commuted to a different sentence. This principle also applies at the stage preceding the decision on surrender—namely, the pre-custodial and custodial stages—which are closely interconnected and functionally preparatory to the final extradition decision; otherwise, there would be no legal justification for restricting, even temporarily and provisionally, the personal liberty of the person concerned. Accordingly, an arrest carried out by the judicial police under Article 716(1) of the Code of Criminal Procedure for extradition purposes in relation to an offence punishable by death under the law of the requesting State is unlawful; nor may a provisional coercive custodial measure be imposed for the same offence pursuant to Article 716(3) of the Code of Criminal Procedure.

In extradition matters, in the absence of a treaty with the requesting State, the rule set out in Article 698(2) of the Italian Code of Criminal Procedure does not allow extradition for prosecution purposes to a foreign State where the offence for which extradition is sought is punishable by the death penalty.

Extradition proceedings---Non-treaty State---Order of Magisterialenquiry---Government of foreign country (United Kingdom), made a request toPakistan for the appellant's extradition for his trial on the charge of murdering eightpersons in the foreign country---Appellant was arrested in Pakistan, and the enquiryMagistrate found that there was a prima facie case against the appellant warranting hisextradition to the foreign country under the provisions of the Extradition Act, 1972---Appellant challenged said order by way of Constitutional petition before the HighCourt, which was dismissed---Held, that an extradition treaty had not been executedbetween Pakistan and the foreign country in question (United Kingdom)---When therewas no extradition treaty between Pakistan and the foreign State, the provisions of theExtradition Act, 1972 could be made applicable for the return of persons to such a nontreaty State provided the requirements of S. 4 of the Extradition Act, 1972 werefulfilled---In the present case, the enquiry Magistrate requested the Ministry of Interiorto issue a notification under S. 4 of the Extradition Act, 1972 along with thenomination of an enquiry Magistrate to conduct an enquiry under S. 7 of the said Act---Ministry of Interior did issue a notification directing that the provisions of the said Actshall have effect in relation to the foreign country with respect to the extradition of theappellant who was wanted on charges of multiple murders---Although the enquiryMagistrate was appointed three days prior to the issuance of the notification under S. 4,but this by itself did not render the entire proceedings before the enquiry Magistrate,coram non judice or unlawful---At best, this was an irregularity which stood curedwhen the notification under S. 4 was issued---Number of documents were exhibited inthe proceedings before the enquiry Magistrate, including the statement of theinvestigating officer of the case---In said statement, the appellant had been specificallyimplicated for conspiracy to commit arson with intent to endanger life and murder ofeight persons---Investigating officer had also made mention of a confession made bythe appellant to a woman about his involvement in the said offence---Additionally theappellant was also implicated by a witness in the case