🇮🇹 Italy →

With regard to the issue of limitation periods under the law of the requesting State, international practice relating to the application of treaties that provide for the statute of limitations as a ground for refusal of extradition shows that it is not for the requested State to autonomously and directly determine whether the limitation period has expired. This is for the obvious reason that such an assessment may involve complex legal evaluations that must be carried out exclusively by the authorities of the requesting State, as also affirmed, for example, in the Explanatory Reports prepared by the Council of Europe for the 1957 European Convention on Extradition and its Fourth Protocol. Accordingly, it is for the requesting State to provide, where appropriate and even upon request by the requested State, information as to whether or not the “prosecution is time-barred”. Such indications, being official and formal in nature, cannot be subject to further verification nor, a fortiori, to review by the requested State.

The case concerned a request by the Principality of Monaco for the extradition of an Italian national convicted of participation in a criminal association involved in money laundering and reinvestment of proceeds deriving from tax offences. The requested person argued that extradition should be refused because the offences were expired due to statute of limitations under Italian law and because the same facts had already been the subject of proceedings in Italy. The Italian Supreme Court of Cassation held that, following Italy’s ratification of the Fourth Additional Protocol to the European Convention on Extradition, the assessment of statute of limitations issues must be carried out exclusively under the law of the requesting State, regardless of Monaco not being party to the Protocol. The Court further excluded any violation of the ne bis in idem principle, finding that the Italian and Monegasque proceedings concerned different criminal associations and distinct factual conduct. The Court also rejected arguments based on the absence, in Monaco, of institutions equivalent to suspended sentences or alternative measures to detention, holding that such differences do not violate fundamental principles of the Italian legal order.

Statute of limitations does not constitute a bar to surrender where crimes against humanity are at issue. Such crimes offend transnational interests and violate jus cogens, namely those norms of positive law universally recognised as binding by all States, which, being placed at the apex of the international legal order, prevail over any other rule of law, whether treaty-based or customary, and are incorporated into the domestic legal system pursuant to Article 10 of the Constitution. The principle of the non-applicability of statutory limitations to crimes against humanity is also affirmed by the Rome Statute of the International Criminal Court, ratified by Uruguay. Moreover, Article 4 of Law No. 110 of 14 July 2017 excludes the possibility of recognising any form of immunity for foreign nationals investigated or convicted abroad for acts amounting to torture.

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.