ITALY Law and Practice Contributed by: Enrico Maria Mancuso, Federico Bracalente, Marco Accorroni and Marco Mariotti, Herbert Smith Freehills Kramer LLP
fundamental legal principles (enforcement), subject to appeal before the Supreme Court. • A final administrative decision by the Minister of Justice. Precautionary measures, including arrest, may be applied throughout. Active extradition (surrender requested by Italy) is initi - ated by the Minister of Justice (on his or her own initia - tive or at the request of the public prosecutor), who files the request with the competent foreign authority; the remainder of the proceedings is governed by the law of the requested state. Legal bars for extradition Italian law establishes the following mandatory and discretionary bars to extradition: • double criminality (Article 13 (2) ICC): the conduct must constitute an offence under both Italian law and the law of the requesting state – unless the applicable treaty provides for specific limitations, financial crimes generally satisfy this condition; • the speciality principle – the extradited person may not be prosecuted for acts other than those for which extradition was granted; • ne bis in idem (a final judgment has already been rendered in respect of the same conduct); • political offences; • risk of persecution, discrimination, cruel or inhu - man treatment, or violation of fundamental rights; • risk of application of death penalty, unless a differ - ent sentence has been irrevocably imposed or the death sentence commuted; • insufficient fair trial guarantees or risk of conse - quences of exceptional gravity due to the person’s health or age; • pending criminal proceedings or sentences to be served in Italy; and • foreign convictions conflicting with Italy’s funda - mental legal principles. The European Arrest Warrant The European Arrest Warrant (EAW; Law No 69/2005) is a simplified surrender mechanism between EU member states based on the principle of mutual trust. Key features include:
• the elimination of the political filter (the Minister of Justice retains a purely administrative role); • judicial authorities (public prosecutor and courts) of the involved states issue the EAW and decide on execution; • the inapplicability of the double criminality require - ment for 32 categories of serious offences – including some white-collar crimes – provided the maximum sentence in the issuing state is at least three years; and • uniformly established grounds for refusal. Extradition of Italian Nationals Under Article 26 (1) of the Italian Constitution, Italy may surrender its own citizens only where an appli - cable bilateral treaty expressly permits it; nationality remains a relevant element that the Minister may con - sider as a ground to refuse or defer extradition. In the context of the EAW, the Court of Appeal may refuse to surrender an Italian citizen (or an EU citizen lawfully resident in Italy for at least five years) pursuant to an EAW issued for enforcement purposes, on condition that the sentence be served in Italy. Country-Specific Restrictions Italy does not maintain a list of specific countries to which extradition is prohibited; refusal is assessed on a case-by-case basis by reference to the legal bars described in the foregoing. 2. Enforcement Architecture 2.1 Investigative and Enforcement Authorities Principal Authorities Financial crime in Italy is investigated and prosecuted by a network of authorities: • the GdF, Italy’s specialised economic and financial law enforcement agency; • the Procura della Repubblica (Public Prosecutor’s Office), Italy’s criminal prosecution authority, vested with the exclusive power and constitutional duty to initiate criminal investigations and proceedings; • CONSOB, Italy’s securities market regulator, vested with administrative enforcement powers; • the Banca d ’ Italia , vested with prudential supervi - sory authority over banks and financial intermediar -
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