
We draw readers’ attention to a noteworthy decision issued by the Rome Court of Appeal on 21 January 2025, in the case of NAJEEM Osema Almasri Habish. Almasri was arrested in Italy under an international arrest warrant issued by the International Criminal Court (ICC) for war crimes and crimes against humanity reportedly committed at Mitiga prison in Libya.
In this decision, the Court of Appeal refused to validate Almasri’s arrest and, as a result, ordered his release, citing the “lack of a request for the application of a precautionary measure by the Prosecutor General due to the absence of a transmission of the relevant documents from the International Criminal Court through the competent Ministry”.
As outlined in the order, Law No. 237 of 20 December 2012, titled “Provisions for compliance with the Statute of the International Criminal Court” (already incorporated into Italian law through Law No. 232 of 12 July 1999), establishes a specific procedure for the arrest of individuals subject to extradition. This procedure excludes (or more precisely, does not expressly provide for) the independent initiative of the judicial police, which is otherwise permitted under the general provisions of Article 716 of the Italian Code of Criminal Procedure.
Article 11 of Law No. 237/2012 expressly requires that the imposition of a custodial measure be requested by the Prosecutor General at the Court of Appeal of Rome, following prior consultation with the Ministry of Justice. To facilitate this process, this law provides that the relevant documents must first be transmitted by the International Criminal Court to the Ministry (Article 2, paragraph 1), which, after conducting its assessment, forwards them to the Prosecutor General for further action (Article 11, paragraph 1).
In this case, Almasri Habish was arrested by the judicial police without any prior request from the Prosecutor General and without the requisite consultation with the Ministry of Justice. The Court of Appeal thus held that the initiative of the judicial police – while generally allowed under Article 716 of the Code of Criminal Procedure – was precluded by the lex specialis introduced by Law No. 237/2012.
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