Peru

The extension of the time limits of custodial detention ordered for extradition purposes — sought by the Prosecutor General pursuant to Article 714(4) of the Italian Code of Criminal Procedure — must be decided by the Court of Appeal, failing which the decision is void under the intermediate nullity regime, after a concrete and effective adversarial exchange between the parties. Such exchange does not require a participatory chamber procedure, but may also take place in written form.

Extradition to Peru was granted upon verification of treaty requirements, including double criminality and the existence of a sufficient evidentiary basis, without any review of the merits. Structural deficiencies in detention conditions were held insufficient, per se, to refuse surrender. However, where a real and individualized risk to life or physical integrity is established — including risks arising from non-state actors —, extradition may be conditioned on specific protective guarantees.

The case concerned extradition proceedings initiated following a request by the Republic of Peru in relation to drug trafficking offences. The Supreme Court of Argentina set aside the decision granting extradition after finding that the documentation relied upon by the lower court constituted only a request for provisional arrest for extradition purposes, while the formal extradition request had been filed only after the extradition ruling had been issued. The Court held that the extradition proceedings were invalid because neither the hearing required under Article 27 of Law No. 24.767 nor the trial stage provided for under Article 30 had taken place before the extradition decision. Recalling its settled case law, the Court emphasized that, once the formal extradition request has been received, the judicial authority may rule on extradition only after completion of the mandatory hearing and trial stages, unless the requested person consents to surrender or mistaken identity is established. The Court further stressed that extradition proceedings, although distinct from ordinary criminal trials, cannot become a “game of surprises” undermining the requested persons’ right of defence.

If specific assurances are requested regarding detention conditions, generic information lacking any degree of individualisation cannot be regarded as sufficient, such individualisation being a necessary precondition also for assessing the concrete adequacy of any compensatory measures, which must be calibrated to the extent of the prejudice otherwise arising from overnight confinement in a cell. Accordingly, where a specific receiving prison has not been identified and, above all, where the size of the cells (to be assessed in relation to the number of detainees expected to remain therein, at least during night-time) has not been provided, further inquiries will be required.

Court of Appeal correctly pointed out that the defence submissions referred to a situation of significant political instability in Peru, but did not in any way substantiate — on the basis of reports issued by reliable organisations — the alleged serious problems of prison overcrowding. In the substantial absence of elements capable of raising doubts as to the risk of being subjected to inhuman or degrading treatment, it must be excluded that the Court of Appeal is under an obligation to nonetheless request further information, as this would amount to a merely exploratory activity, not justified by proven elements capable of undermining the principle of mutual trust between States. This principle is grounded in the treaty-based nature of extradition agreements, which are founded on a relationship of mutual confidence and reliance between States. Accordingly, the domestic judicial authority is required to seek additional information only where that presumption of reliability is called into question on the basis of concrete elements, which may also be derived from open sources, provided they are deemed reliable. Therefore, in the absence of any element capable of giving rise to suspicion that the conditions of detention would not comply with human rights standards, no general duty to request further information or assurances can be invoked, as this would undermine the very principle of mutual trust underpinning extradition treaties. Moreover, in the case law of this Court, there are no recent precedents establishing that detention conditions in Peru are incompatible with the protection of human rights.

The Court may place particular emphasis on the seriousness of the offences for which the person is sought (murder and robbery) and on the corresponding penalties, as well as on the circumstance that the individual is unlawfully present in the national territory, lacking a residence permit. Although some arguments relied upon are not entirely pertinent (such as the alleged unreliability of electronic monitoring devices—so-called “electronic bracelets”—in ensuring compliance with custodial requirements, “as unfortunately demonstrated by numerous news reports”), the reasoning of the Court of Appeal is primarily grounded on the seriousness of the offences for which the person is sought and the severity of the applicable penalties, in addition to the fact that the individual is illegally present in the national territory. These elements consistently led the Court to consider as recessive the circumstances put forward by the defence, namely that the applicant has relatives in Italy willing to accommodate him and that he carries out undeclared work. This constitutes a reasoning that is by no means merely apparent and, as such, is not subject to challenge at this stage. The appeal, in fact, alleges an erroneous assessment of the elements underlying the decision, thus raising an issue of reasoning which is not reviewable under Article 719 of the Italian Code of Criminal Procedure.

Under the Extradition Treaty between Italy and Peru, surrender shall be refused “if, at the time of receipt of the request, the prosecution or the penalty is time-barred under the law of either Party in respect of the offence for which extradition is sought.” As this constitutes a mandatory ground for refusal, the identification of the relevant conditions necessarily falls within the assessment of the judicial authority of the requested State. Accordingly, that authority must both assess limitation under its own domestic law and verify whether the offence has become time-barred under the law of the requesting State. The assessment of limitation must be carried out by applying the law in force at the time the offence was committed. The principle of tempus regit actum, together with the autonomous determination of limitation periods under the legal systems of both the requesting and the requested States, stems from the principle of double criminality—and, by the same token, of double prosecutability. Consequently, the law applicable for limitation purposes is necessarily that in force at the time the offence underlying the extradition request was committed.

The requirements of concreteness and immediacy of the risk of flight, for the purpose of applying coercive measures, must be assessed by the precautionary judge on the basis of specific indicators capable of demonstrating—even inferentially—the existence of a real and foreseeable risk that the requested person may abscond in the near future, such as to justify the imposition of a restrictive measure. The severity of the sentence to which the person would be exposed in the event of surrender does not, in itself, constitute a relevant circumstance for these purposes.

The case concerned a request by Peru for the extradition of a Peruvian national accused of drug trafficking for allegedly attempting to export cocaine to the United States. The requested person challenged the extradition decision arguing that the general human rights situation in Peru, including prison overcrowding, poor detention conditions, corruption within institutions, and concerns regarding judicial independence, exposed her to a real risk of inhuman or degrading treatment. The Italian Supreme Court of Cassation held that the Court of Appeal had failed to adequately address the detailed submissions and international reports produced by the defence, including reports from Amnesty International and the Italian Embassy. The Court reiterated that, even in the presence of a bilateral extradition treaty, Italian courts must conduct a concrete assessment of detention conditions in the requesting State and, where necessary, seek additional information. The extradition decision was therefore annulled and remanded for a new assessment.

In matters of extradition to a foreign State, the late transmission of the surrender request by the Republic of Peru, after the arrest has been carried out, does not entail the nullity of the extradition proceedings, nor does it in itself indicate a lack of continued interest on the part of the requesting State, since the Extradition Treaty between Italy and Peru, ratified by Law No. 135 of 3 May 2004, contains no provision to that effect, without prejudice to the termination of the custodial measure upon the expiry of the ninety-day time limit.