Law 31 March 2014 41 - Standards In Matter Of Extradition

Original Language Title: Legge 31 Marzo 2014 N.41 - Norme In Materia Di Estradizione

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Draft Law "Changing Composition Commissions Cooperation, Prices, P SAN MARINO We the Captains Regent of the Most Serene Republic of San Marino Having regard to Article 4 of the Constitutional Law no.185 / 2005 and Article 6 of Qualified Law no. 186/2005; We promulgate and publish the following ordinary law approved by the Great and General Council at its meeting on March 27, 2014: March 31, 2014 41 LAW RULES ON EXTRADITION CHAPTER I GENERAL PROVISIONS Art. 1 (Prevalence of international conventions) 1. L 'extradition shall be governed by the provisions of international conventions in force for the Republic. 2. If no such standards exist, the rules of this law. CHAPTER II EXTRADITION FOR ABROAD Art. 2 (Extradition and powers of the Secretary of State for Justice) 1. The delivery to a foreign country of a person for the enforcement of a foreign judgment that has a term of imprisonment, a measure restrictive security of personal freedom as well as other measures that orders a precautionary measure restricting personal liberty may only take place by means of extradition. 2. If extradition of the same person is requested by several States, the Secretary of State for Justice take its decision having regard to all relevant circumstances and particularly the gravity and the place where the crimes were perpetrated, of date of receipt of the applications, of the person claimed nationality, and the possibility of subsequent extradition to another State. Art. 3 (Dual criminality) 1. The extradition is permitted only when the offense is an offense pursuant the law of San Marino and from the requesting State. Art. 4 (Limits to extradition) 1. It can not be extradited for a political offense or an offense connected to it, or when there is reason to believe that the accused and the convicted person will be subjected to persecution or discriminatory on grounds of race, religion, sex, nationality, language, political opinions or personal or social conditions, or to cruel, inhuman or degrading treatment or otherwise to acts which constitute a breach of a fundamental right of the person. 2. It is a political offense any crime that offends a political interest of the State or a political right of the citizen. The effects of extradition is considered to be the common political offense established mainly by political motives. 3. In no case be considered political terrorist offenses or offenses committed for the purpose of terrorism or subversion of the constitutional order, nor crimes, according to international conventions to which it has adhered the Republic of San Marino, can not prevent extradition. 4. If for acts for which extradition is sought is provided for the death penalty, extradition can be granted only in cases where an assurance that this penalty will not be applied or enforced. 5. Can not be granted the extradition of the San Marino citizen, except in relation to the offenses mentioned in paragraph 3. 6. If extradition is refused, the judicial authorities of San Marino, at the request of the requesting State must initiate criminal proceedings for the same acts for which extradition has been refused, informing the applicant State of the opening of proceedings. The request of the foreign state is not required in relation to the offenses mentioned in paragraph 3. Art. 5 (Specialty principle) 1. The Secretary of State for Justice may grant extradition on the express condition that the extradited person is not subjected to restriction of personal freedom in the execution of a sentence or detention order or subjected to other measures of personal freedom, or given to another state for a fact prior to surrender other than that for which extradition was granted. 2. The provision of paragraph 1 shall not apply when the person extradited, having had the opportunity, did not leave the territory of the State which has been delivered within thirty days from his final release or, having left, has voluntarily returned. Art. 6 (Documents supporting the application) 1. The extradition is permitted only on the basis of a specific request made by the competent authorities of the requesting State. 2. The application shall be accompanied by: a) a copy of the sentence to a custodial sentence or a detention order has the personal freedom or other measure ordering a precautionary measure restricting personal liberty; b) a report on the facts alleged against the person whose extradition is requested, with
indicating the time and place of committing such acts and their legal status; c) the text of the applicable laws; d) the identification data and any other possible information suitable for determining the identity and nationality of the person whose extradition is requested. Art. 7 (judicial guarantees) 1. Extradition may not be granted without the favorable decision of the Judge of Appeal, to which the application is transmitted by the Secretary of State for Justice within fifteen days of receipt. In case of appeal the ruling by Judge of Appeal, unless the appeal is declared inadmissible, the extradition can not be granted without the favorable decision of the judge for the third instance criminal. 2. If the person to be extradited, the presence of the defender consents to extradition request, the decision of the Judge of Appeal is limited to the validation of consent. 3. The favorable decision of the Judge of Appeal and the consent does not make it mandatory extradition by the Secretary of State for Justice. 4. The Judge of Appeal has to appear before him concerned to provide for his identification and to collect the eventual consent to extradition. The individual shall be assisted by a public defender, in case of failure to appoint a trusted. The writ of summons shall also be notified at least ten days before the hearing, on pain of nullity, to the Treasury Attorney, the legal counsel of the person claimed or, failing that, the public defender and the representative of the requesting State may He appointed. 5. The Judge of Appeal may request the foreign authorities, through the Secretary of State for Justice, the documents and information it considers necessary. 6. The Judge of Appeal provides a judgment, deciding on the admissibility of the application and on the possibility of granting the extradition, after taking the information and placed the checks deemed necessary. 7. The decision on extradition is taken by the court of appeal within three months from the date on which it received the request for extradition or the date of receipt of the documentation and information referred to in paragraph 5. 8. In the event of a decision favor of extradition, the Judge of Appeal, if there is the request of the Secretary of State for Justice, has the remand in custody of the person to be extradited who is in freedom and provides for the seizure of the body of the crime and the relevant things the offense, establishing such seized property can be surrendered to the requesting State. 9. When the decision is contrary to extradition, Judge of Appeals revokes any precautionary measures applied and has ordered the return of seized things. The ruling contrary to extradition preclude the delivery of a subsequent favorable ruling as a result of possible further application submitted for the same acts in the same State, unless the application is based on new evidence. 10. If the requesting State intends to proceed, after the extradited delivery, for a fact prior to surrender other than that for which extradition has already been granted, it must submit a new request for extradition, to which should be attached statements of the person concerned, made before a judge of the requesting State, in order to request for extension of extradition. In this case, the Judge of Appeal proceeds in the absence of the person concerned. Shall not be held to trial before the Judge of Appeal if extradited, with the above statements, consents to the extension of extradition request. This procedure shall also apply in cases where the State to which the person was surrendered, consent to re-extradition request of the same person to another State. Art. 8 (Procedures for the same offenses) 1. The Judge of Appeal judgment ruling contrary to extradition if, for the same act or the same facts against the person whose extradition is requested is an ongoing process prosecution or final judgment has been pronounced in the State. Art. 9 (Appeal against the extradition ruling) 1. Against the decision of the Judge of Appeal may be brought within thirty days of its notification, also draw on the merits of the extradition procedure in the Criminal Judge for the third instance by the person concerned , by his lawyer, the Prosecutor of the Treasury and the representative of the requesting State. Art. 10 (the requesting State Intervention) 1. The requesting State may request to intervene in the proceedings before the Judge
Appeals and Judge for the third instance being represented by a lawyer entitled to practice before the courts of the Republic. The intervention of the requesting State is admitted by Judge of Appeal on condition of reciprocity. Art. 11 (Extradition Ruling. Delivery) 1. The Secretary of State for Justice decides on the extradition within forty-five days from receipt of the report acknowledging that the extradition agreement, or by the deadline for the news' appeal against the judgment of the appeal court or by the filing of the judgment of the judge for the third instance. 2. After that date without having rendered his decision of the Secretary of State for Justice, the person whose extradition was sought, if detained, are placed in freedom. The same person was also placed in freedom in case of refusal of extradition. 3. The Secretary of State for Justice shall immediately notify the requesting State of the decision and, if it is positive, the place of delivery and the date from which it will be possible to do so, also giving precise on the restrictions suffered personal freedom dall'estradando the purpose of extradition. 4. The deadline for delivery is fifteen days from the date fixed pursuant to paragraph 3 and, on reasoned request of the requesting State, be extended by another twenty days. 5. The decision to grant extradition loses effectiveness if, within the time allowed, the requesting State fails to take delivery of the requested person; in such case the latter is placed in freedom. Art. 12 (Suspension of delivery. Temporary surrender. Execution abroad) 1. The execution of extradition is suspended when the extradited should be tried in the territory of the State or you must serve a sentence for crimes committed before or after that for which extradition was granted. However, the Secretary of State for Justice, after consulting the competent judicial authorities for the execution of the sentence or to the ongoing proceedings in the Republic, may temporarily surrender to the requesting State of the person to be extradited there imputed, agreeing to terms and conditions. The Secretary of State for Justice may also agree that the sentence is to be carried out in the requesting State. Art. 13 (Coercive measures and seizure) 1. At all times the person whose extradition is requested may be referred, at the request of the Secretary of State for Justice, coercive measures of personal freedom. Likewise, at any time, it can be arranged at the request of Secretary of State for Justice, the body of the kidnapping offenses and relating to the offense for which extradition is requested. Such requests the Secretary of State for Justice are formulated, if it proves necessary, after appropriate signal or at the request of the foreign state. 2. The right to issue the order is up to the Judge of Appeal. 3. In urgent cases, at the request of the foreign state and the request of the Secretary of State for Justice, the Judge of Appeal may make such provisional measure coercive staff even before the request for extradition has been received. The request for provisional arrest must take into account the existence of a sentence of imprisonment or a preventive measure, limitation of personal freedom. The application must also state the offense for which extradition is requested, the time and the place at which it was committed and the identity data of the person sought. 4. The Secretary of State for Justice shall immediately notify the foreign State provisional application of coercive measures and the possible seizure. Precautionary measures are revoked if within forty days of the said notice is not received by the Secretary of State for Justice, the request for extradition and the documents referred to in Article 6. The withdrawal does not affect the adoption of new protective measures and extradition if the application is received later. 5. You observe, as applicable, the provisions of the Criminal Procedure Code relating to coercive measures. In the application of restrictive measures of personal freedom is taken into account in particular the need to ensure that the person whose extradition is requested does not elude the possible delivery. 6. In the interrogation following the issuance of the measure, the judge shall, in particular, in case of lack of confidence defender, to appoint a public defender who must witness the act, the identification of the person, as well as to reap the eventual consent to extradition shall be mentioned in the minutes.
7. Coercive measures and seizures shall under no circumstances be arranged if there are reasons to believe that there are no conditions for a favorable extradition ruling. 8. They shall be revoked if the beginning of their execution took eight months without the court of Appeal has pronounced judgment in favor of extradition or, in case of appeal to the court for the third criminal case against that judgment, a year without having been exhausted the proceedings before the court. At the request of the Prosecutor of the Treasury, said terms may be extended only once, for a period not exceeding three months, when it is necessary to particularly complex investigations. Art. 14 (Revocation and replacement measures) 1. The withdrawal and replacement of the measures envisaged in the previous articles are arranged by Judge of Appeal or by the judge for the third instance, according to the phase in which these proceedings. 2. The revocation shall always be ordered if the Secretary of State for Justice's request. Art. 15 (Challenging of measures relating to precautionary measures) 1. Against the personal protective measures, and actual issued pursuant to the previous articles is only permitted by the Attorney of the Treasury, extradited, or his legal counsel, the appeal to the Judge for the third instance for violation of the law. CHAPTER III EXTRADITION FROM ABROAD Art. 16 (Extradition Request) 1. The Secretary of State for Justice has the power to ask a foreign state the extradition of an accused or a convict against whom a restrictive measure should be executed personal liberty, for precautionary or executive type of a sentence, together with the seizure of the body of the crime and relating to the offense. For this purpose the court proceeding, also for the execution of the sentence, or with whom a security measure restricting the personal freedom has been applied, so requests to the Secretary of State for Justice, transmitting the acts and necessary documents. 2. The Secretary of State for Justice, made the appropriate checks and activated the necessary details to the competent authorities, it may decide not to present the request for extradition or postponing the presentation by giving notice to the requesting court. 3. The Secretary of State for Justice is competent to decide on the acceptance of the conditions that may be posed by the foreign state to grant extradition, as long as not contrary to the fundamental principles of the legal Marino. The court is bound to respect the agreed conditions. 4. The Secretary of State for Justice may, for the purpose of extradition, the research abroad accused or convicted and and to request the provisional arrest. Art. 17 (Specialty principle) 1. The person extradited may not be subjected to restriction of personal freedom in the execution of a penalty or subjected to any other measure restricting personal liberty for a fact prior to surrender other than that for which l ' extradition was granted, unless there is the consent of the foreign state or that the person extradited, having had the opportunity, has not left the territory of the State within thirty days from his final release or that, after leaving it, you've voluntarily returned. Art. 18 (pre-trial custody abroad) 1. Pre-trial custody abroad, suffered as a result of a request for extradition presented by the State, has calculated the effects of the maximum permissible period of detention as well as the final sentence to be served with judgment sentencing. CHAPTER IV FINAL PROVISIONS Art. 19 (Repeals) 1. It is repealed Article 8 of the Criminal Code. Art. 20 (Entry into force) 1. This law comes into force on the fifteenth day following that of its legal publication. Our Residence, this day of 31 March 2014/1713 THE CAPTAINS REGENT Gian Carlo Capicchioni - Anna Maria Muccioli THE SECRETARY OF STATE FOR INTERNAL AFFAIRS Gian Carlo Venturini