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  • Matteo Zamboni

The obligation to extradite or prosecute former members of the Argentine junta: the Malatto case

Updated: Jun 9, 2022

On 13 June 2019, the Italian newspaper La Repubblica published on its website a video of 69 years old Carlos Luis Malatto, former lieutenant of the Mountain Infantry Regiment No 22 of the Argentine army, charged with heinous crimes for his conduct under the military regime, taking life easily on the balcony of his small villa in the Sicilian town of Calascibetta – before shooing away the journalists with disappointment and anger when he realised he was being filmed.

The video triggered outrage and indignation: How can such a criminal be free in Italy? And why the Government does not take action toward justice – as they allege to have done in the case of Cesare Battisti?

To try to answer these questions, eXtradando contacted the association 24 March (which since many years assist the victims in legal proceedings against the former member of the dictatorship in Italy and Argentina) and Francesca Sassano, their lawyer for the case, who agreed to share non confidential documents of the proceedings thus far.

The charges against Malatto

Like many Argentines, Carlos Luis Malatto’s ancestors arrived from Italy in the 1890s. His family worked as peasants for two generations, before Carlos’ father joined the army. Carlos followed his path: enrolled in military school and, in 1973, was assigned to the city of San Juan. He quickly became deeply involved in the military junta that ruled the Country between 1976 and 1983, as a member of a small group of officials tasked with the systemic repression of political opponents through kidnapping, torture, murder and enforced disappearances.

Many of his comrades have been convicted for torture and enforced disappearance by the Tribunal of San Juan; the same Tribunal that, on 15 August 2011, issued three arrest warrants against Carlos Luis Malatto for conspiracy aimed at committing multiple offences, including murder and kidnapping. Thanks to his double citizenship, however, by 2011 Malatto had already found refuge in Italy. For this reason, on 3 October 2011, the Republic of Argentina transmitted to Italy an extradition request pursuant to the bilateral Convention on extradition of 9 December 1987 and the Additional Protocol thereto.

The decision of the Court of Appeal

With a judgment of 4 April 2013, the Court of Appeal of L’Aquila granted the request of extradition. In so doing, the Court was satisfied that all the charges on which Malatto was sought were not time barred, given that they amounted to “crimes against humanity” within the meaning of the Rome Statute of the International Criminal Court (ratified by Italy with Law No 232 of 12 July 1999).

According to the Court of Appeal, the request of extradition showed that the crimes alleged against Malatto had been committed “on the basis of an overall plan of the Argentine military junta” which was “aimed at the systematic elimination of political opponents” through “massive violations of human and civil rights, including arbitrary detention, torture, murder, enforced disappearances and even child abduction”.

The reversal of the decision by the Court of Cassation

The appeal judgment was overturned by the Court of Cassation, which, with judgment No 43170, issued on 17 July 2014 and published on 15 October 2014, dismissed the request of extradition advanced by Argentina, finding that it failed to show the existence of “serious elements” against Malatto and, namely, to give evidence that he had in fact participated in the commission of the offences ascribed to his comrades.

To reach this conclusion, the sixth criminal section of the Supreme Court of Cassation followed the case law holding that Article 705, para 1, of the code of criminal procedure (requiring the Italian judge to assess whether the extradition request contains “serious elements of guilt” against the requested person) applies even to cases of extradition based on an international treaty.

This reasoning contradicts the letter of Article 705, which opens with the clause: “when there is no treaty, or the treaty does not provide differently”. Still, it is not unique in the case law of the Court of Cassation (see, for example, judgment No 26290 of 28 May 2013). On this basis, the Court of Cassation stated that, even when the extradition request is based on a (bilateral or multilateral) treaty, the Italian judge requested to adjudicate on the request must “assess that the documents transmitted [by the requesting state] contain serious elements to consider it probable that the requested person has committed the offence on which he is sought”.

Drawing upon these premises, the justices of the sixth criminal section of the Court of Cassation rejected the extradition request blaming Argentina for having failed to produce any “specific element” on Malatto’s participation in the offences, but merely pointed to the fact that he was a member of the Mountain Infantry Regiment No 22 – a department known for his involvement in a large scale programme of violence and torture against political opponents. But for the Court of Cassation the participation in the Regiment was not enough to surrender Malatto to Argentina, in the lack of serious elements as to his participation in the specific offences charged. For that purpose, the Court concluded that “the fact that the charges relate to a programme of political repression enacted by an autocratic and criminal regime through state organs often enjoying protection and anonymity cannot justify disregard for the principles governing extradition […] principles which require the requested judge to assess whether the documents transmitted by the requesting state contain enough elements to allow the conclusion that it is probable that the requested person has in fact committed the offence on which he is sought”.

The critics of the decision of the Court of Cassation

The critics of the Court of Cassation’s decision focussed on the most controversial aspects of the case, and notably on Malatto’s alleged ties with the Vatican, as well as a clandestine, pseudo-Masonic, secret association. Nothing has been written on the legal reasons why the solution adopted by the Court is wrong, or at least hurried.

Yet, it is easy to note that, pursuant to Article 13 of the extradition Treaty between Italy and Argentina, if the information submitted by the requesting party are insufficient to allow the requested party to decide, it shall demand that all the necessary additional information be transmitted within 45 (or, in exceptional circumstances, 75) days. It is thus unclear why the Court of Cassation did not ask Argentina any additional information, instead of quashing the judgment of the Court of Appeal and denying the extradition request at once.

Moreover, the Court of Cassation dismissed the question concerning criminal responsibility for crimes against humanity with disconcerting superficiality. Nowhere in the judgment the Court dealt with the legal qualifications of the crimes ascribed to Malatto, or with the rules on individual criminal responsibility under the Rome Statute.

In fact, Article 25, para 3(d) of the Statute of the International Criminal Court, established that “a person shall be criminally responsible and liable for punishment for a crime […] if that person […] [i]n any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose” provided that “such contribution [has] been intentional” and either “[b]e made with the aim of furthering the criminal activity or criminal purpose of the group […] or […] in the knowledge of the intention of the group to commit the crime”.

According to international legal scholars, such a “catch-all provision applies to indirect forms of assistance – such as financing the group – that do not warrant liability for either co-perpetration or aiding and abetting”. As a consequence, once it had established that the charges against Malatto related to the crimes that he had allegedly committed as a member of a military group, the Court of Cassation should have investigated the regime of individual criminal liability in international criminal law and assess the supporting documents submitted by Argentina in light of the applicable standard.

Overlooking such a crucial aspect of the case bears far-reaching consequences – not only for the specific case at hand, but also for possible, future extradition cases against foreign military and government officials sought in Italy for international crimes. Yet, the case is not closed. In August 2015, Argentina prepared a second extradition request; while around the same time Italy opened a self-standing criminal case against Malatto.

The second extradition request by Argentina

On 12 August 2015 the Prosecutor Office of San Juan in Argentina finalised a second extradition request against Carlos Luis Malatto. The request (which eXtradando was able to see) is considerably longer than the one rejected by the Court of Cassation in 2014 and is based on many testimonies and witness statements from the victims and their families. However, the second request was not transmitted to the Italian authority, since Italy had, in the meantime, opened criminal proceedings against Malatto in Rome.

Aut dedere aut judicare

Since the time of Hugo Grotius international law knows the obligation for third states to extradite or prosecute the perpetrators of very serious crimes in a different country.

In recent times, the principle has been codified in bilateral and multilateral treaties. Among them, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment(adopted on 10 December 1984 and ratified by Italy with Law No 498 of 3 November 1988) provides that “[t]he State Party in the territory under whose jurisdiction a person alleged to have committed any [acts of torture as defined in] Article 4 is found shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution”.

One could object that the Convention Against Torture has been adopted after the commission of the offences by Malatto and, therefore, raise the violation of the principle of non-retroactivity of criminal law. On the other side of the argument, however, one should not lose sight of the fact that the offences committed by Malatto in the 70s and beginning of the 80s were certainly punished under the Italian criminal law of the time and that, according to some international law scholars, the aut dedere aut judicare principle is a principle of customary international law with jus cogensstatus (though it is also fair to say that neither the International Court of Justice in the case of Belgium v Senegal, nor the International Law Commission of the United Nations share this conclusion).

Against this background, and while it is to be stressed that the judgment No 43170/2014 of the Court of Cassation completely overlooks the principle aut dedere aut judicare, it is important to note that, in October 2015, the Italian Ministry of Justice granted the authorisation necessary to prosecute Carlos Luis Malatto in Italy under Article 8 of the Criminal Code. Following the ministerial authorisation, a criminal case has been opened by the Prosecutor Office at the Tribunal of Rome.

The case is now pending at the preliminary investigation and it is to be hoped that the Rome Prosecutor liaise with his Argentine counterpart in San Juan - to begin with, by making sure to secure the evidence gathered for the purpose of the second extradition request through a request of assistance pursuant to the Convention on Judicial Assistance in Criminal Matters concluded between Italy and Argentina on 9 December 1987 (ratified by Italy with Law No 224 of 30 July 1990).

Almost four years have lapsed from the beginning of the investigation, while no request for committal to trial appear to have been made by the office of the Prosecutor. Yet the outcome of this case is crucial: it will bear far-reaching consequences for the future relationship between Italy and Argentina.

As reminded by Professor Claudio Tognonato, an Argentine residing in Rome, taking the first line in the fight against the impunity of the former members of the military junta, there are at least 70 Argentine former officials at large in Europe: Italy cannot become their safe haven.

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