With a judgement on 3 December 2019, the Italian Court of Cassation upheld the decision of the Court of Appeal of Bologna to grant the extradition to Chile of a former member of the Pinochet’s army, Walter Klug Rivera, prosecuted for the kidnapping of a communist militant occurred a few days after the 11 September 1973 coup d’état.
The victim, whose name is Luis Ángel Cornejo Fernández and was 23 years old at the time of the facts, is now desaparecido, as his fate and whereabouts were never discovered. At the time, the accused – who has now been surrendered to the Chilean authorities – was a second lieutenant responsible for the detention center located in the Military Regiment of the city of Los Ángeles, Chile, where Fernández was allegedly brought and illegally detained along with other political prisoners, until he disappeared during the first days of October 1973.
In June 2019, Klug came to Italy from Germany – where he resided benefiting from his double Chilean and German nationality – and was arrested while he was staying in a hotel in Parma. Consequently, he was brought before the Court of Appeal of Bologna on the basis of a decision of the Chilean Prosecutor and an international arrest warrant issued by the Chilean Appeals Court of Conception back in 2015.
Statute of limitations as a treaty obstacle to extradition
The major legal challenge that the extradition judges had to face in order to decide on the admissibility of the extradition request concerned the assessment over the statute of limitations of the criminal offence with which the requested person was charged, as Article IV of the Chilean-Italian extradition treaty prohibits surrender where the criminal offence is time-barred, either in the requesting or the requested State.
According to the Chilean legal system – and, more precisely, to the Supreme Court’s case-law – the crimes of kidnapping committed under Pinochet’s dictatorship are not statute-barred since, being part of a widespread and systematic attack against the political opponents, they amount to crimes against humanity, and therefore are not subject to statute of limitations.
In Italy, even though Parliament ratified the Rome Statute of the International Criminal Court, crimes against humanity have not yet been transposed into national legislation. Similarly, despite the ratification of the 2006 International Convention for the Protection of All Persons from Enforced Disappearance Convention in 2015, the crime of enforced disappearance has not yet been translated into an offence in domestic law, either common or acquiring the status of crime against humanity.
Therefore, in order to assess that the requirements of Article IV of the extradition treaty were satisfied in the case, the Italian Courts turned to ordinary crimes, which are imprescriptible every time they are punished with life imprisonment.
Interpreting the principle of dual criminality
Given that the crime of kidnapping would have been statute-barred, the judges of the Court of Appeal of Bologna have scrutinised the existence of a probable cause of commission of other crimes under Italian law by the requested person.
Looking at the numerous testimonies attached to the extradition request, the Court of Appeal concluded that the requested person, if prosecuted in Italy, would have been held responsible not only for the alleged kidnapping of Fernández, but also for his subsequent disappearance and (presumed) death. Therefore, according to the Court of Appeal, the facts could be qualified under Italian law as intentional homicide (which, per se, is not imprescriptible, though the Court of Appeal forgot to assess the existence of at least one aggravating circumstance!).
The Court of Cassation – validating this approach – added that the factual element underpinning the extradition request was also to be considered from the point of view of the inhuman and degrading treatment that the prisoners allegedly suffered in the detention centre of which the requested person was the director, as well as in other areas of the Regiment used as interrogation rooms. In particular, the qualification of Klug’s conduct as complicity in torture aggravated by the capacity of public officer and by the death of the victim as intended consequence, being punished by life imprisonment pursuant to Article 613 bis § 5 of the Criminal Code, allowed the Italian Supreme Court to exclude that the offence was time-barred, as required by Article IV of the extradition treaty.
The Court of Cassation, thus, endorsed the appeals judges’ reasoning of considering as relevant fact for the dual criminality assessment not only the one mentioned in the formal indictment contained in the extradition request, but also the one emerging more broadly from the evidence attached to it. This ruling – as recalled by both the Court of Appeal and the Court of Cassation – would be consistent with the well-established Court of Cassation’s case-law interpreting substantially the concept of “fact” for the purpose of dual criminality, i.e. independently from any divergence in the given nomen juris between the two legal systems.
Such a solution is significant as it leads to one of the first applications in Italy of the newly introduced crime of torture, probably the first one in the field of judicial cooperation, enabling the first extradition to a South American country for crimes against desaparecidos after previous similar failed attempts. This qualification of the facts is also certainly illustrative of the brutal reality which characterised the Latin American military dictatorships, where political opponents where systematically tortured in order to extort them information, before being killed and made disappear.
Critical aspects of the decisions
Although leading to a positive outcome, the judges’ approach outlined above raises some doubts from at least two perspectives.
Firstly, one could question the opportunity, if not the legality, for an extradition judge to ultimately substitute himself in the work of the prosecutor of the requesting State. Both decisions seem, indeed, to go beyond simple divergences in the legal classification of the offence. In the present case, a request for the different crime – first degree murder (and not torture, which was criminalised in Chile ex post facto without retrospective effect) – was in fact possible, in theory, under the requesting State’s law, but was not retained by the foreign prosecuting authorities on the basis of the available evidence. After the surrender, such a broad interpretation of the concept of “fact” leads one to wonder what constitutes a violation of the principle of speciality: if a prosecution for murder were to eventually follow in Chile due to a requalification pursuant to Article VII of the bilateral extradition treaty, can we be sure that the requalification relates to very same fact which supported the extradition request for kidnapping?
Secondly, concerns may be raised as regards the full respect of the defence rights of the accused within the extradition proceeding. Indeed, the Court of Cassation effected a sudden change in the nomen juris, further to the lack of a proposition in this sense by the Italian Prosecutor. It seems, therefore, that the requested person was not given the opportunity to defend himself against the different charge of torture and to eventually present contradictory evidence disproving the “serious indications of guilt” requirement, which, according to Supreme Court’s case-law, must also be met when a bilateral extradition treaty exists, as in the case between Italy and Chile.
Alternative (and fairer?) paths for reaching the same outcome
In the author’s view, in order to better adhere to the extradition request and to the prosecution that will follow in Chile, two different solutions – which were proposed by the General Public Prosecutor’s Office attached to the Court of Appeal in its final observations – could have been implemented.
First, keeping the qualification of the facts as crime of kidnapping only, the obstacle of statute of limitations could have been overcome by considering the crime of kidnapping as still ongoing, precisely because the body of Fernández was never discovered. This solution – besides being consistent with the case-law of the Chilean Supreme Court and of a number of other legal systems which dealt with similar cases, such as the French Court of Cassation – is also coherent with the international framework on the matter. Indeed, the International Convention for the Protection of All Persons from Enforced Disappearance stresses the continuous nature of this crime, considered as such until such time as the fate and the whereabouts of this victim remain unclarified, as already provided for by the relevant 1993 UN General Assembly Declaration.
In addition, it should not be forgotten that the kidnapping and following disappearance of an individual, if part of a widespread or systematic attack against the civilian population, amounts to a crime against humanity according to customary international law. It is true that, given the lack of implementation into the Italian legislation, national prosecutions and convictions for crimes against humanity are not possible in Italy. However, such qualification should still be considered binding for the Italian legal system on the basis of Article 10 of the Italian Constitution, which provides for an automatic adaptation to customary international law.
Therefore, within the framework of the extradition proceeding, which does not have a “punitive” nature, the crime of kidnapping with which the requested person had been charged, qualified as a crime against humanity by the foreign judicial authority, could also have been considered not subject to statute of limitations by the Italian judiciary on the basis of Article 10 of the Constitution. An emerging practice accompanied by opinio juris on the imprescriptible character of core international crimes is indeed progressively solidifying under international law. Such a custom, which, as we have seen here, was followed by the Court of Appeal of L’Aquila in a similar extradition case, is based on the idea that certain human rights violations are so serious as to legitimise the perpetual punitive claim of the State, in exception to what provided by the law for ordinary crimes. In this sense, thus, the principle of legality under Article 25 of the Italian Constitution and the international custom incorporated under Article 10 shall not be considered in contrast, but as complementing each other, as the latter would be the expression of the necessary respect of the very fundamental rights protected by Article 2 of the Italian Constitution.
The principle of dual criminality from the temporal point of view
Another salient aspect of the Supreme Court’s judgement under discussion that should be outlined is that the qualification of the fact as crime of torture, which was only criminalised in Italian law in 2017, was possible because the Court of Cassation interprets as relevant for the purpose of dual criminality not the moment of the commission of the crime, but the moment of the decision on the request.
In this sense, according to the Supreme Court’s case-law, the temporal aspect of the principle of legality – which in the present case would have stymied the criminal proceeding for torture in Italy due to non-retroactivity – is not applicable in the field of both extradition and the European arrest warrant. Such an approach is understandable since what matters is that the conduct was criminal at the time of its commission in the requesting State. This should be true, a fortiori, for requests concerning facts criminal under international law, for which many national statutes provide for retroactive jurisdiction.
What is paradoxical, as far as Italy is concerned, is the opposite choice, laid down by some bilateral extradition treaties, of requiring that the crime must be prosecutable in the requested State due to the lack of statutory limitations. The respect of the principle of legality – to which statutes of limitations are subject according to the Italian Constitutional Court – seems, thus, to be applied inconsistently when it comes to interstate judicial cooperation.
To conclude on a more positive vein, it must be acknowledged that this decision has the merit of having put, as a result, the Italian legal system in line with international obligations, notably with the aut dedere aut judicare clause contained in both the Convention on Enforced Disappearance and in the UN Convention against Torture.
It remains, now, to encourage the legislator to implement the crime of enforced disappearance into the Criminal Code, in order to better ensure consistency with extradition requests of this kind in the dual criminality assessment. More generally, it is urgently needed to call on the Parliament to finally codify specific legislation for all crimes against humanity. When doing so, the framework on prescription should also be revisited, in order to take into consideration whether to disapply statutory limitations to core crimes, as provided, inter alia, by Article 29 of the Rome Statute and, implicitly, by Article 8 of the Convention on Enforced Disappearance.