The Role of the Ministry of Justice in Extradition Proceedings: Powers, (Non) Separation of Functions, and the Principle of Double Criminality

The Abedini affair, which involved the arrest and subsequent release in Italy of an FBI fugitive and concluded with the Italian Minister of Justice ordering the Court of Appeal of Milan to release the individual, offers an opportunity for renewed reflection on the intersection of politics and law in extradition proceedings. This is particularly relevant in passive proceedings, where Italy is called upon to assist in responding to requests for surrender from foreign states.

Extradition is a fundamental institution of international judicial cooperation, based in Italy on a hybrid system intertwining judicial competences and administrative interventions. Although the Italian legal system adheres to the principle of separation of powers derived from Montesquieu, extradition proceedings reveal clear points of contact between the executive power (represented by the Minister of Justice) and the judiciary (Court of Appeal and Court of Cassation). This interaction occurs both in the precautionary and executive phases, demonstrating that the division of functions is neither absolute nor "pure."

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The extradition process in Italy is divided into two phases.

The first is judicial, entrusted to the judicial authorities (Court of Appeal and Court of Cassation), which verify the existence of legal requirements, compliance with certain fundamental rights, and adherence to international norms, including bilateral and multilateral treaties.

The second phase is administrative or political, entrusted to the Ministry of Justice, which decides whether to grant or deny extradition. This can only occur if the judicial decision favors surrender, as the Minister cannot grant extradition when it has been denied by the judiciary.

Powers of the Ministry of Justice

Due to the inherently political dimension of classical international cooperation relationships, the Ministry of Justice exercises numerous powers in extradition proceedings:

• It must request confirmation of precautionary custody. Once a person is arrested in Italy based on an extradition request, the Minister must seek validation of the precautionary measure provisionally issued by the competent Court of Appeal. This demonstrates the immediate interaction between the executive and judiciary and, indeed, the primacy of executive power over judicial authority.
• It always has the power to order the revocation of extradition-related precautionary custody, with binding effect on the Court of Appeal.
• It can block extradition despite a favorable ruling by the judiciary. This constitutes a high-level administrative act that may be issued for political, diplomatic, or expediency reasons. However, the Minister can never order extradition if it has been denied by the judiciary.
• If extradition is granted, the Minister may still impose specific guarantees, such as compliance with certain conditions (regarding detention, visits, etc.).

This blending of functions—namely, the intervention of a government body in a decision substantially binding on personal liberty—represents a clear departure from the classic separation of powers delineated by Montesquieu. While the Court of Appeal and Cassation assess technical-legal requirements (such as the existence of an extradition treaty and the respect for the principle of double criminality), it is the Minister of Justice who ultimately decides whether to grant or deny extradition.

"Democracy is built on the trust of citizens in their institutions, but this trust must be earned every single day." – Barack Obama

Double Criminality in Extradition Proceedings

The principle of double criminality is a fundamental requirement for granting extradition, both in the international sphere and within the European Union. In Italy, this principle requires that the alleged offense constitutes a crime under both the requesting state's and Italy's legal systems.

The principle is satisfied in cases of "substantial concordance": it is not necessary for the offense to be classified identically in both jurisdictions, but the conduct must be punishable in both. A concrete analysis is required, focusing on the alleged facts rather than formal qualifications provided by the requesting state.

The Italy-US Treaty The extradition treaty between Italy and the United States (ratified in 1984 and updated in 2006 following a specific EU-US extradition agreement, the only such agreement concluded by the European Union) includes specific provisions on the principle of double criminality:

• Only offenses punishable by at least one year of imprisonment in both jurisdictions are extraditable. The substantive definition of the crime prevails over the formal title and can be denied if the offense is political or if the individual risks the death penalty.

The principle of double criminality is a fundamental safeguard in extradition proceedings, protecting individuals from the application of foreign laws incompatible with the Italian legal system. This principle ensures that domestic penal law reserves are not violated, preventing Italian citizens or individuals on Italian territory from being surrendered for actions not recognized as crimes under Italian law.

The "Abedini Affair" and the Political Nature of the Decision

In an official statement dated January 12, the Ministry announced the order to release the individual sought by the United States, citing the lack of double criminality. "Pursuant to Article 2 of the extradition treaty between the Government of the United States of America and the Government of the Italian Republic, extradition is permitted only for offenses punishable under the laws of both contracting parties, a condition that, based on the current evidence, cannot be deemed satisfied."

This reasoning appears unconvincing. From the FBI affidavit transmitted to the Italian judicial authority, it emerges that the individual and an accomplice are accused in the United States of conspiracy to violate the International Emergency Economic Powers Act (IEEPA) and of providing material support to a foreign terrorist organization (IRGC).

These charges involve offenses punishable under Italian law, which criminalizes terrorism-related crimes both in the Penal Code and in special legislation aimed at combating domestic and international terrorism. The Italian system includes preventive measures such as special surveillance and expulsion for foreign nationals suspected of terrorism and legislative provisions (e.g., Decree-Laws 374/2001 and 144/2005) enabling specific investigative tools like preventive wiretapping, communication monitoring, and international cooperation.

US charges could thus be pressed in an Italian extradition proceeding, unless Italy argues that it is a political offense and that the extradition request conceals a disguised persecution (something that would have required much greater courage).

Concluding Reflection

To claim that there is no dual criminality in order to conceal the real reasons for the lack of extradition risks damaging the credibility of the system: it might have been better to order the release on grounds of political expediency rather than resorting to lies.

The justice system, even in the context of international cooperation, must remain transparent, as emphasized by Norberto Bobbio: "Transparency is the pillar upon which citizens' trust in justice is founded."

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