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Criminal law—Italian constitutional law—European Convention on the Transfer of Sentenced Persons—agreement regarding confinement of a transferred prisoner—effect and constitutionality of such an agreement
Published online by Cambridge University Press: 27 February 2017
Extract
Baraldini (March 28, 2001), at <http://www.cortecostituzionale.it>.
Corte costituzionale (Constitutional Court of Italy), March 22, 2001.
Following breast cancer surgery in a Rome hospital, Silvia Baraldini—an Italian national who had been transferred from the United States to Italy for the purpose of serving the remainder of her prison sentence in Italy—requested her release from prison while she received radiation treatments or chemotherapy. By order of November 24, 2000, the Tribunale di sorveglianza (Supervisory Court) of Rome for the District of Lazio, on its own motion, brought a challenge of constitutionality against the Italian statute (Transfer Implementation Law) implementing the 1983 Council of Europe Convention on the Transfer of Sentenced Persons (Strasbourg Convention).
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References
1 See U.S. Dep’t of Justice Statement Regarding the Transfer of Silvia Baraldini (Aug. 24, 1999), at <http://www.usdoj.gov>. In 1983, Baraldini was convicted in the Southern District of New York of racketeering and conspiracy under the federal Racketeer Influenced and Corrupt Organization Act, 18 U.S.C. §§1961–1968, for her participation in the affairs of a terrorist group. She was sentenced to 40 years’ imprisonment (with a judicial recommendation against parole) and fined $50, 000. The conviction and sentence were affirmed by the Court of Appeals for the Second Circuit, United States v. Ferguson, 758 F.2d 843 (2d Cir. 1985). In a second, subsequent trial (Eastern District of New York, decided April 19, 1984), Baraldini was convicted of serious criminal contempt under 18 U.S.C. §401 and sentenced to 3 additional years in prison, to be served consecutively with her previous, 40–year sentence. The case is discussed in Marian Nash Leich, Contemporary Practice of the United States, 85 AJIL 338 (1991).
2 On October 20, 2000, Baraldini had filed a request with the Tribunale di sorveglianza (Supervisory Court) of Rome for the suspension of her sentence under Article 146(1) (3) of the Italian Criminal Code, which provides for “mandatory” suspension of the execution of sentences in case of serious illness (“mandatory respite”) or, in the alternative, for house arrest on medical grounds.
3 Trib. sorv., Nov. 24, 2000, Ord. No. 860/00, Gazz. Uff., 1 Serie Speciale, No. 3, Jan. 17, 2001 [hereinafter Supervisory Court order]. All translations of the Bardalini court cases are by the author.
4 Law No. 334, July 25, 1988, Gazz. Uff., No. 188, Aug. 11, 1988, [hereinafter Transfer Implementation Law].
5 Convention on the Transfer of Sentenced Persons, Mar. 21, 1983, ETS No. 112 (entered into force July 1, 1985) [ hereinafter Strasbourg Convention]. The Convention and an updated list of signatures and ratifications are available online at <http://conventions.coe.int>.
6 The Supervisory Court favored the application of a discretionary form of suspension in accordance with Article 146(1) (2) of the Italian Criminal Code (“discretionary respite”), instead of the “mandatory respite” provided for under Article 146(1) (3)—which, according to the Court, requires an “irretrievable” health condition that “fortunately here does not exist.” Supervisory Court order, supra note 3, para. 3.2.
7 The terms of the agreement concluded between Italy and the United States for the purpose of Baraldini’s transfer to Italy are described infra notes 13–16 and accompanying text.
8 Corte cost., Mar. 22, 2001, Judgment No. 73/01, Gazz. Uff., 1 Serie Speciale, No. 13 (Mar. 28, 2001), at <http://www.cortecostituzionale.it>, reprinted in 84 Rivista di Diritto Internazionale 489 (2001) [hereinafter Constitutional Court judgment]. Citations to the case refer to the paragraphs in the section on legal considerations (Considerate in diritto).
9 Letter from U.S. Dep’t of Justice to Vincenzo Nicosia, Public Prosecutor, Court of Appeals of Rome, Apr. 16, 2001 (on file with author).
10 Italy ratified the Strasbourg Convention on June 30, 1989, with the Transfer Implementation Law, supranote 4. A few days later, Italy adopted “Provisions for the Implementation of International Conventions Regarding the Execution ofjudgments in Criminal Cases, ” Law No. 257, July 3, 1989, Gazz. Uff. No. 167 Quly 19, 1989), reprinted and translated in 8 Ital. Y.B. Int’l L. 383 (1988–92) [hereinafter Criminal Judgments Implementation Law]. The first request for Baraldini’s transfer was dated October 2, 1989, the day after the Strasbourg Convention entered into force for Italy. The request is reproduced in [1999] Diritto Penale e Processo 1560. The United States had ratified the Convention on March 11, 1985.
11 Letter from Robert S. Mueller III, Assistant Attorney General, Criminal Division, U.S. Dep’t ofjustice, to Piero Calla, Director General, Directorate General of Penal Affairs, Italian Ministry of Pardon and Justice (Dec. 19, 1990), reproduced in Leich, supra note 1, at 338, 340 (1991). The letter also stated:
In addition to the serious nature of Ms. Baraldini’s offenses, her refusal to cooperate and her suspected ongoing involvement with fugitive criminals, we are concerned that, if transferred to Italy, Ms. Baraldini will serve a considerably shorter sentence than that imposed in the United States. We understand that if she were to be transferred, an Italian Court of Appeals must recompute the sentence she would receive and that under Italian law this sentence would necessarily be shorter than that which she is currently serving in the United States....
We must also express our concern about the current parole practice in Italy which, we understand, has in the recent past allowed convicted terrorists and organized crime figures to be furloughed or placed on work release after only relatively short periods of incarceration.
Id. at 339–40.
12 Id. at 340.
13 See letter from Oliviero Diliberto, Italian Ministry of Pardon andjustice, to Janet Reno, U.S. Attorney General, U.S. Dep’t ofjustice (July 28, 1999) [hereinafter Diliberto letter], and letter from Chief, Int’l Prisoner Transfer Unit, Office of Enforcement Operation, Criminal Div., U.S. Dep’t ofjustice, to Vice General Director of Penal Affairs, Italian Ministry of Pardon andjustice (Aug. 9, 1999). The latter communicated that “the United States approved Silvia Baraldini’s request to serve the remainder of her sentence in Italy” (translation by author), thus concluding the agreement [hereinafter U.S.-Italy transfer agreement] necessary for her transfer to take place pursuant to the Strasbourg Convention. Subsequent arrangements concerned the times and modalities of her transfer. Both letters are available in Italian in [1999] Diritto Penale E Processo 1579. The Diliberto letter is available in English at <http://www.luciomanisco.com/barald/eng_barald_1.htm>. Although the phrase “Pardon andjustice” (Grazia e Giustizia) appears in the tide of the ministry and also in the titles of ministry officials, those titles will hereinafter be simplified as “Justice.”
14 U.S.-Italy transfer agreement, supra note 13, App. A (“Guarantees to be Agreed to by the Government of Italy Prior to the Transfer from the United States of Silvia Baraldini”), in [1999] Diritto Penale e Processo 1573 (in Italian), at <http://www.luciomanisco.com/barald/testi/apndxab_en.htm> (in both Italian and English).
15 Except for two brief interruptions prior to her first trial, Baraldini had been in prison since November 1982. On December 18, 1997, the U.S. Parole Commission denied her request for release on parole. Based on accumulated good–conduct credits, Baraldini was scheduled for mandatory release in July 2008.
16 “These conditions are discussed in Appendix B and . . . would become part of the understanding.” U.S.-Italy transfer agreement, supra note 13, App. A; see id., App. B (“Current Conditions of Confinement for Silvia Baraldini”), in [1999] Diritto Penale e Processo 1574 (in Italian), at <http://www.luciomanisco.com/barald/testi/apndxab_en.htm> (in both Italian and English) (listing six conditions concerning security and confinement levels, housing, daily regime, visitors, health, community placement, and furloughs).
17 Pursuant to Article 1 of the Criminal Judgments Implementation Law, supranote 10. Moreover, Article 2 required the Court of Appeals to verify the following conditions (in addition to those set forth in the Strasbourg Convention):
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(a)
(a) the judgment does not contain provisions contrary to the fundamental principles of the legal system of the State;
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(b)
(b) there has been no irrevocable judgment pronounced in the State for the same fact and with regard [] to the same person;
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(c)
(c) there is no criminal proceeding underway in the State for the same fact and with regard [] to the same person.
18 Corte app. July 9, 1999 Judgment No. 40, in 82 Rivista di Diritto Internazionale 1144 (1999), at <http://www.luciomanisco.com>.
19 Diliberto letter, supra note 13.
20 Id.
21 Constitutional Courtjudgment, supra note 8.
22 The Constitutional Court stated that “the Ministry ofjustice, in its letter of July 28, 1999, with which it reported to [the U.S. attorney general] the recognition of the sentences to be served in Italy, makes no reference to judicial recognition, but only to the government’s acceptance of the conditions.” Constitutional Court judgment, supra note 8, para. 2.1.
23 Supra note 10. For the enforcement of foreign sentences, Italy applies the “continued enforcement” procedure provided for in Article 9(1) (a) of the Strasbourg Convention. See Letter from Permanent Representative of Italy to UN Secretary-General (June 30, 1989), at <http://conventions.coe.int> (hand delivered to Secretary-General on same day that instrument of ratification was deposited). According to Article 3 of the Criminal Judgments Implementation Law, “With thejudgment of recognition, the Court of Appeals shall determine, on the basis of the sentence established in the foreign judgment, the sentence which must still be enforced according to Italian law. In determining the sentence, the Court of Appeals shall apply the guidelines set forth in Article 10 of the Convention.” Under Article 10(1), Italy is bound by the legal nature and duration of the sentence as determined by the foreign state. Under Article 10(2), however, if the foreign sentence is by its nature or duration inconsistent with its law, Italy may adapt the sanction to punishment or measure prescribed by its own law for a similar offense.
24 See supra note 23.
25 Cost. Art. 134, reprinted and translated in 9 Constitutions of the Countries of the World (Albert P. Blaustein & Gisbert H. Flanz eds., 1987).
26 According to Baraldini’s counsel, the government’s argument based on the “non-normative” character of the agreement deserved to be carefully examined:
In substance, as correctly pointed out by the attorney for the government, the rule “incorporated” through the law implementing the treaty—and allegedly unconstitutional—is a rule for the single case and not a rule provided with the general and abstract character required for it to fall within the Constitutional Court’s mandate of judicial review.
Memorial of Silvia Baraldini (Feb. 20, 2001), Constitutional Court judgment, supra note 8 [hereinafter Baraldini memorial] (translation by author) (on file with author).
27 See Constitutional Court judgment, supra note 8, para. 2.4.
28 See, for example, Corte cosLjune 21, 1979JudgmentNo. 54/79, 52 Race. uff. corte cost. 333 (1979), excerpted and translated in 78 ILR 93 (1988); 4 Ital. Y.B. Int’l L. 189, 195 (1978–79), the first courtjudgment holding that the legislation implementing a treaty was unconstitutional. The case concerned the Italian law implementing the 1870 Italy-France Extradition Treaty, May 12, 1870, 141 Consol. T.S. 185, insofar as it allowed extradition from Italy to France for offenses punishable by the death penalty, in violation of Article 27 of the Italian Constitution. See, more recently, [Venezia], Corte cost., Judgment No. 223/96, 121 Race. uff. corte cost. 61 (1996), reprinted in 79 Rtvista di Dirttto Internazionaue 815 (1996), which declared unconstitutional the statute that incorporated the 1983 U.S–Italy Extradition Treaty, Oct 13, 1983, TIAS No. 10, 837, reprinted in 24 ILM 1525 (1985), and gave effect to Article IX of the Treaty. The Court held that the prohibition on the death penalty in the Italian Constitution is absolute and precludes extradition for a capital offense, regardless of the assurances provided by the requesting state that the death penalty would notbe imposed in that case. See Andrea, Bianchi, Case Report Venezia v. Ministero di graziae giustizia, 91 AJIL 727 (1997)Google Scholar.
29 Transfer Implementation Law, supra note 4, Art. 2.
30 See supra note 23.
31 Constitutional Court judgment, supra note 8, para. 3.2.
32 The Court added:
What the Convention clearly excludes—and the rationale of such an exclusion, in the light of the principles of the rules of law, needs not to be explained—is the possibility that the transferred person be subject to a truly special and personal regime of enforcement, as far as his or her rights . . . as detainee are concerned.
33 This interpretation of Article 3(1) (f) finds support in the Explanatory Report to the Convention on the Transfer of Sentenced Persons, para. 25, at <http://conventions.coe.int> [hereinafter Explanatory Report].
34 See Constitutional Court judgment, supra note 8, para. 3.3.
35 Id.
36 The same logic underlies the Article 11 (1) (d) provision that, in converting a sentence, the administering state “shall not aggravate the penal position of the sentenced person, and shall not be bound by any minimum which the law of the administering State may provide for the offence or offences committed.” In commenting on what is meant by saying that an administering state that converts the sentence is not boundby any minimum that its own law may provide, the Explanatory Report, supra note 33, para. 57, says that that the administering state “is allowed not to respect that minimum” (emphasis added).
37 In consenting to her transfer to Italy from the United States, Baraldini declared that she understood and agreed, inter alia, to the following:
My sentence will be carried out according to laws of Italy, under the terms and conditions as agreed to by me and by the Ministry of [Pardon] and Justice, as set out most recently in the letter dated July 28, 1999, from the Ministry of [Pardon] and Justice to the Attorney General, and confirmed in the Sentence of Recognition issued by the Appeals Court of Rome on July 7 . . . .
Verification of Consent to Transfer to Italy for Execution of Penal Sentence of the United States, para. 2. This document is available online in both Italian and English at <http://www.luciomanisco.com>.
38 See, for example, the case of Pietro Bubani, an Italian national who has consistently refused to be transferred from Thailand to Italy—despite the agreements concluded between the two states pursuant to a bilateral treaty. See Italia–Thailandia: ildetenuto italiano non consente al trasferimento, 29 Indice Penale 161 (1995); Il riconoscimento di una sentenza thailandese: il caso Bubani, 43 Rivista Italiana di Diritto e Diprocedura Penale 855 (2000).
39 As noted in the Explanatory Report, supra note 33, para. 8, “The purpose of the [Strasbourg] Convention is to facilitate the transfer of foreign prisoners to their home countries by providing a procedure which is simple as well as expeditious.” The Convention seeks to provide, in particular—as many commentators have noted—”a simple, speedy and flexible mechanism for the repatriation of prisoners.” Id. Regarding specifically the transfer of Baraldini, see, for example, Roberta, Barberini, “What is theBaraldini case about?” Ilritomo di Silvia Baraldini in Italiai, 5 Qutlstione Giustizia 910 (1999)Google Scholar, and Andrea, Ragozzino, Il trasferimento delle persone condannate secondo la Convenzione europea del 21 marzo 1983, 6 Documenti Giustizia 1211 (2000)Google Scholar. “One of the consequences of the fact that states are at freedom to agree to, or to refuse, a transfer is that each state may give its consent subject to certain guarantees or conditions.” Id. at 1220 (translation by author). But see Maria Luisa Padelle tti, II trasferimento in Italia di Silvia Baraldini: un procedimento singolare, 82 Rivista di Dirttto Internazionale 1053 (1999), for the opposite view that the Strasbourg Convention’s flexibility is created through the absence of an obligation to transfer, not by leaving open the possibility of derogating the Convention’s rules by case-by-case agreements concluded pursuant to the Convention.
40 See Strasbourg Convention, supra note 5, pmbl.
41 Committee of Experts on the Operation of European Conventions in the Penal Field, 31st plen. sess., Strasbourg, Sept. 25–27, 1995, Conclusions on Agenda Item 6, PC-OC (95) mise 3 [hereinafter Committee of Experts Conclusions] (on file with author).
42 Id., para. 4.
43 Trib. sorv., Apr. 18, 2001, Ord. No. 2172/2001, Foro It. II 310 (2001). The decision, which allows Baraldini to leave her home to undergo whatever medical treatment is necessary for her health, as well as to do errands or work, is to be reexamined six months after it went into effect—that is, on September 20, 2001.
44 Criminal Judgments Implementation Law, supra note 10.
45 Letter from Piero Calla, Director General, Directorate General of Penal Affairs, Italian Ministry of Justice, to the U.S. Embassy of Rome, (Apr. 19, 1990), in [1999] Diritto Penale e Processo 1561 (response to the U.S. diplomatic note concerning Italy’s first request for the transfer of Silvia Baraldini) (translation by author).
46 It is also doubtful that the violation is “manifest” in character, as required by Article 46 of the Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 1155 UNTS 331. Whether this part of Article 46 is an accepted standard of international law, however, is controversial.
47 Baraldini memorial, supra note 26.
48 Article 6 of the Strasbourg Convention specifies the information that the states are obligated to provide each other. Paragraph 2(d) requires, in particular, that the sentencing state shall provide to the administering state “whenever appropriate, any medical or social reports on the sentenced person, information about his treatment in the sentencing State, and any recommendation for his further treatment in the administering State.” Baraldini’s counsel had pointed out this circumstance, Baraldini memorial, supra note 26, but without inferring from it the consequence which is drawn in the text.
49 Of course, this same circumstance could have been invoked by Italy as a cause of termination or suspension of the agreement.
50 Italy’s Decision to Transfer Silvia Baraldini to Hospital, U.S. Dep’t of State Press Briefing (Sept. 28, 2000), at <http://www.state.gov>.
51 See supra note 9 and accompanying text.
52 See supra note 43 and accompanying text.