Spain/Italy: Protocol on extradition
01 September 2000
On 20 July, the Spanish and Italian Justice Ministers Angel Acebes Paniagua and Piero Fassino signed a cooperation protocol on extradition in Madrid. The protocol states that both contracting parties will "adopt all necessary measures to make the processing of extradition requests between the two countries easier, irrespective of the judicial and sentencing situation of the person requested for extradition". It was adopted in response to an ongoing dispute between the two countries over Spain's refusal to extradite people sentenced in absentia in Italy. The Spanish Constitutional Court has repeatedly ruled against extradition in such cases. Failure to attend a trial, it argued in a ruling regarding convicted Mafia boss Giovanni Greco, should not be interpreted as a defendant voluntarily waiving his right to a proper defence, "because the appearance of the accused normally results in his/her imprisonment". The Spanish judicial system does not allow for trials conducted without the accused being present. The ruling suggested that extradition would only take place if Italian authorities were to "offer guarantees that the sentence passed in absentia could be appealed" by the defendant.
Cases involving members of the Mafia, N'drangheta and Camorra who Spanish authorities refused to extradite provoked criticism from judicial sources in Italy, amid observations that Spain was becoming a paradise for members of organised crime networks. It surfaced that the Spanish SIRENE bureau, following advice from the Audiencia Nacional's public prosecutions office, had annulled 1,089 arrest warrants entered by Italian authorities on the Schengen Information System. The SIRENE bureaux, which allows police and judicial agencies to exchange personal files on suspects, have a procedure whereby they issue "flags" if their implementation contravenes national laws. After a "flag" is issued, police in the country do not have to enforce the arrest order.
In June at the Council of Europe summit in London, and a week later in Rome, on 28 June, Mr Fassino and the Spanish Justice Ministry Under-secretary Michavila Nunez discussed the matter, with a view to establishing the framework for an agreement. These negotiations led to the cooperation protocol, which stresses the "duties of cooperation between democratic countries adhering to a common space of freedom of transnational movement...to avoid the creation of zones of impunity or expedients allowing the use of freedom of movement to avoid the laws of each of the two countries."
The legal basis for the agreement lies in the recognition of the validity of in absentia trials in cases where guarantees for the defence are respected. The 1979 "Additional Protocol of the European Convention on Extradition" provides for the application of extradition procedures in cases where sentences have been passed in absentia, provided that defence rights are respected. Italian authorities stress that defence rights are respected because the lawyers of choice represent the accused in cases where in absentia judgements are passed, and that they have introduced changes following an inquiry by the European Court of Human Rights into the Italian judicial process. Both Spain and Italy agreed to providing information regarding the legal situation of the person whose extradition is requested, as well as outlining the possibilities of appeal for persons sentenced in absentia. The Spanish Justice Ministry's Department of Legislative Policy and the Italian Justice Ministry's Department of Penal Affairs are responsible for checking the procedures for implementing the agreement, whereas the liaisons magistrates are in charge of improving cooperation.
The Italian Justice Ministry claims that 80% of the Spanish orders prohibiting the arrest of people who were sentenced in absentia were removed in the wake of the protocol. The Spanish government authorised Mafia boss Giovanni Greco's extradition, in spite of a previous j