→ 🇵🇪 Peru

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.

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.