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Spain and Italy pioneer a "common area of security and justice" (1)

01 January 2001

Spain and Italy have taken the lead in EU plans to create a "European area of justice" stemming from the Tampere Summit in October 1999, after signing agreements regarding extradition procedures and judicial cooperation (Statewatch bulletin vol 9 nos 3&4, 5). A bilateral "Protocol on Extradition" signed by Justice Ministers Angel Acebes and Piero Fassino on 20 July 2000 led to the establishment of a joint working group for the development of a "common area of freedom, security and justice" (Statewatch bulletin, vol 10 no 5). It first met on 26-27 October to draft an agreement to abolish extradition procedures between the two countries, replacing them with administrative transfers. On 28 November the resulting treaty, signed in Rome, covers "the pursuit of serious crime by superceding extradition within a common area of justice" for offences including terrorism, drug trafficking, people trafficking, arms dealing and sexual abuse of minors. It will apply to offences carrying a maximum prison sentence of no less than four years, affecting persons who have been sentenced or who are subject to measures limiting their personal freedom.

Apart from replacing extradition procedures with administrative transfers, the treaty signed by the Ministers4 also covers the mutual recognition of criminal judgements, formal procedures for requesting custody, demanding arrests and the transfer of persons facing judicial sentences or proceedings, and for dealing with extradition requests from third countries. The only valid reasons for refusal by authorities in the requested country to hand over suspected or convicted criminals are a) inadequate documentation relating to the extradition request and b) cases in which the object of the request is granted immunity by legislation in the "requested state". If the person requested for custody is serving a custodial sentence or is undergoing criminal proceedings in the requested country, the transfer is postponed to their completion.

Spain and Italy will exchange liaison magistrates to oversee the implementation of the provisions in the treaty after ratification by both countries. The documentation which must be attached to extradition requests includes "a brief account describing the [relevant] criminal events", the judicial classification of these, an outline of the applicable criminal legislation, of expected sentences, length of time required to ascertain events, and available information which is useful for the identification (and arrest) of suspects. A certified copy of the relevant judicial order must also be included. The Italian Justice ministry claimed the treaty will "place Italy and Spain in a position as pioneers of a kind of 'strengthened cooperation' between members of the European Union". This cooperation is explicitly aimed at eliminating obstacles which "may give rise to areas of impunity" in different national territories, resulting from differences in legislation. This would remove the "dual criminality" rule, (Statewatch news online, June) whereby requests for assistance are subject to events constituting an offence in the requested state's legislation, in the instances affected by the treaty.

By converting extradition procedures into administrative transfers, and introducing the principle of mutual recognition, judicial scrutiny of decisions will inevitably be reduced. The grounds for refusal of an extradition request are strictly limited and the power of judicial authorities in requested countries to review decisions will decrease. The impetus for enhanced judicial cooperation was provided by a lengthy controversy over members of Italian organised crime syndicates living in Spain. Italian international arrest warrants and extradition requests were left unattended in cases where sentences were passed after judgements made in absentia. These were not recognised by the Spanish Constitutional Court, prompting accusations that Spain was becoming a haven for mafiosi. The Constitut