On January 28, 2020, the Italian authorities forwarded to the French Ministry of Justice a request for the provisional arrest and extradition of Mr. X., an Italian national, for the purpose of enforcing a life sentence handed down on November 28, 1985 by the Milan Assize Court, for acts of terrorism and subversion of the democratic order, committed on November 12, 1980.
Mr. X. declared that he did not consent to his surrender to the requesting Italian authorities and, at the end of the proceedings, the examining magistrate’s chamber decided to rule against extradition.
In its ruling, the Cour de cassation recalls that, in accordance with the provisions of Article 3 of the Second Protocol to the European Convention on Extradition, where extradition is requested for the purpose of enforcing a sentence resulting from a decision rendered in absentia, the requested party may refuse to extradite if, in its opinion, the trial proceedings did not satisfy the minimum rights of defence accorded to any person charged with an offence.
It also recalls the stipulations of article 6 of the European Convention on Human Rights concerning the right to a fair trial, under which a State party to the Convention, when requested to extradite a person, has the obligation to ensure that the person will not be exposed, in the requesting State, to a flagrant denial of justice which could result, in particular, from the impossibility of obtaining a new decision from a court on the merits of the charge, when he has been convicted in abstentia within the meaning of the case law of the European Court of Human Rights.
It also referred to the provisions of article 8 of the same Convention, pointing out that everyone has the right to respect for his private and family life, and that there can be no interference by a public authority with the exercise of this right unless such interference is prescribed by law and constitutes a measure which, in a democratic society, is necessary in particular for the prevention of disorder or crime.
Thus, the Cour de cassation requires the investigating chamber to verify whether the person claimed to have been tried in his absence, even though it has not been established that he waived his right to appear and defend himself, or that he intended to evade justice, will have the possibility, if he so wishes, of obtaining a new ruling from a court, after hearing him, on the merits of the charge in fact and in law.
If, at the end of its examination, it considers that the procedure in the requesting State does not meet these requirements, it would then have to rule against extradition.
With regard to respect for private and family life, which could be infringed by an extradition measure, the Cour de cassation recalls its November 15, 2016 case law (Cass. crim., November 15, 2016, no. 16-85.335) and requires the investigating chamber to exercise a proportionality control with regard to the legitimate aims pursued by this measure.
Cass. crim., March 28, 2023, n°22-84.382