After Russia ordered the arrest in absentia of Rai journalists Simone Traini and Stefania Battistini, accused of “illegally crossing the border” from Ukraine, for reporting on the incursion into the Kursk region in the summer, Adnkronos contacted the lawyer Alessandro Gentiloni Silverian expert in international criminal law, to understand what the next developments in the case will be, how the Italian government can respond, and what can happen to the two reporters.
Current legal framework
From a legal point of view, the Russian Federation is (still) a contracting party to the European Convention on Extradition, made by the Council of Europe in 1957 to regulate the surrender, from one signatory state to another, of persons accused of a crime or already definitively condemned. According to Gentiloni Silveri, “since it is a Convention open to accession also by non-European states (for example: South Africa, Israel, Chile, South Korea), it continues to apply even if the Russian Federation does not from 16 March 2022 it is no longer part of the Council of Europe and, since September of the same year, it has ceased to be part of the European Convention on Human Rights. Therefore, strictly speaking, when the legal and political conditions exist, Italy is obliged under an international treaty to extradite people (citizens and otherwise) to the Russian Federation”.
Respect for fundamental rights
The Italian and European legal system excludes the possibility of extradition being granted if there is a concrete risk that the request for surrender conceals political or oppressive motivations, or that the person will be subjected, once returned to the requesting country, to inhuman or degrading treatment, or to judicial procedures that do not guarantee respect for their fundamental rights.
“On the basis of these predictions – continues the lawyer – very often the Western (and also Italian) courts have rejected extradition requests from Russia, either due to the insufficient guarantee that the person would have been subjected to a trial that respected their rights defensive, also due to the clear influence of political power on the judicial power, or due to the condition of prisoners in Russian penal institutions. In this context, the exodus of the Russian Federation from protection bodies such as the Council of Europe and the Convention on Human Rights will only make more penetrating the verification that the Western Courts must carry out when faced with an extradition request arriving from that country, given the fewer legal guarantees deriving from the refusal to comply with those regulations. For this reason, the Government itself recently denied extradition requests for the same reasons.”
Again as a general rule, extradition can be granted only if the fact constitutes a crime in our country too and if the requesting State shows sufficient evidence of the person’s guilt: “there would therefore be no legal conditions for extradition – continues Gentiloni Silveri – when it appears it is clear that the fact is lawful under Italian law or in any case is exempted, for example by the exercise of a right”.
The procedure
Extradition proceedings may arise following a request from the requesting country, forwarded through diplomatic channels. The Government that receives it can either immediately refuse to act on it, or forward the case to the Judicial Authority for a ruling on the existence of the legal conditions for handing over the interested party. The Court of Appeal expresses its opinion and then, on any appeal, the Court of Cassation.
“If the judicial decision is negative – continues the jurist – extradition cannot take place in any case, while if it is positive, the final say still belongs to the Government, which must decide whether to grant or deny surrender on the basis of assessments of high political discretion. Or, the procedure can start from the arrest of the requested person, which takes place on the initiative of the police force of the requested country on the basis of an arrest order issued by the requesting country via Interpol. In this case, the Judicial Authority must decide immediately, validating the arrest or not and, only if the Italian Ministry of Justice requests it, possibly applying precautionary measures. Following validation (and even where it does not occur), the usual judicial and political process resumes.”
Rai journalists
Does the behavior of the two Rai journalists constitute a crime? According to the lawyer, “in light of the information available, it is first of all very doubtful that the behavior accused of the two Rai reporters also constitutes a crime in Italy; in any case, they seem peacefully exempt from the exercise of the right to document what is happening in a theater of war so close to our borders and so relevant to our interests. Even regardless of all this, it is very likely that a possible proceeding in Russia against them, given the strong political characterization of the reaction of the local authorities, would not offer the necessary guarantees of fairness to satisfy the rigorous standards that the Italian courts have applied in the evaluation of these aspects. Furthermore, given the geopolitical situation and the characteristics of the case, it is possible that, as has already happened in the recent past, it is the Italian Government itself that decides to decline the possible extradition request of the two already in the preliminary stage, without even starting the usual judicial evaluation procedure,” he concludes. (Of Giorgio Rutelli)
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