1 Extradition Treaty, Oct. 13, 1983, Italy-U.S., TTAS No. 10,837, 24 ILM 1525 (1985) (entered into force Sept. 24, 1984).

2 Article 2 reads: “The Republic recognizes and guarantees the inviolable rights of man, both as an individual and as a member of the social groups in which his personality finds expression and imposes the performance of unalterable duties of a political, economic and social nature.” Article 27, paragraph 4 states: “The death penalty is not admitted save in cases specified by military laws in time of war.” Cost. Arts. 2, 27(4), trans, in Constitutions of the Countries of the World (Albert P. Blaustein & Gisbert H. Flanz eds., 1987). The death penalty was also abolished in military law by Article 1 of Act No. 589, Oct. 13, 1994.

3 See Re Cuillier, Ciamborrani & Vallon, 78 ILR 93, 99 (Corte cost. 1979). See also Salerno, F., Implementation of the Convention on Extradition of 12 March 1870 between Italy and France , 4 Ital. Y.B. Int’l L. 189 (1978-79)Google Scholar (discussing Cuillier). The case concerned a constitutional challenge to the domestic statute implementing the 1870 Extradition Treaty between Italy and France insofar as it permitted the extradition of fugitives from Italy to France for offenses that were punishable by die death penalty.

4 See supra note 3.

5 The Court of Cassation had deemed a prior note verbale of the U.S. Embassy, No. 519 of July 28, 1994, to be inconsistent with Article IX of the Treaty. In that note, the U.S. Embassy, on instructions from the Department of Justice, had presented the assurance of the United States Government that “the death penalty will not be carried out if Mr. Venezia is convicted.” Article IX of the Treaty and Article 698 of the Italian Code of Criminal Procedure require, instead, that the death penalty shall not be imposed if the extraditee is yet to be sentenced. On August 24, 1995, by another note verbale, No. 684, the U.S. Embassy, on instructions from the Department of State, presented the assurance of the United States Government that “the death penalty will not be imposed or inflicted upon Mr. Venezia for his offense.”

6 Cass., sez. 6, 30 oct. 1995, reprinted in 79 Rtvista di Diritto Internazionale 189, 194 (1996).

7 It is of note that both chambers of the Italian Parliament had passed resolutions on November 16 and December 20, 1995, respectively, calling for the Government not to extradite Venezia, as the assurances given by the United States were regarded as insufficient.

8 The letter, dated October 23, 1995, was followed by another one of November 29, 1995. The latter was accompanied by a statement, dated August 2, 1995, and signed by an Assistant State Attorney of Florida, which read:

Quoted in European Commission of Human Rights decision in the Venezia case, infra note 17, at 5.

9 Article 31(2) of the Extradition Treaty between Italy and Morocco, February 12, 1971, reads: “Si le crime à raison duquel l’extradition est demandée est puni de la peine capitale par la législation de l’Etat requérant, cette peine sera remplacée par celle prévue pour la même infraction par la législation du pays requis.” For the text, see Mario Pisani & Franco Mosconi, Codice Delle Convenzioni di Estradizione E di Assistenza Giudiziaria 280 (2d ed. 1993).

10 Arguably, other extradition treaties that provide for a direct obligation for the requesting state not to impose or, in case it has already been imposed, not to enforce the death penalty might also pass the test of constitutionality elaborated by the Court. See, e.g., Treaty of Extradition, Nov. 11, 1972, Italy-Rom., Art. 35, reprinted in id. at 359; Treaty of Extradition, May 26, 1977, Italy-Hung., Art. 14, id. at 475; and, more recently, Treaty of Extradition, Dec. 9, 1987, Italy-Arg., Art. 9, id. at 13.

11 The presentation by the United States Government via diplomatic channels of the assurances under Article IX of the Extradition Treaty was deemed by the Court of Cassation suitable to engage the international responsibility of the United States. (See Court of Cassation decision in the Venezia case, supra note 6. The Court relied on its prior case law, particularly on the Hawkins case, Cass., sez. 6, 28 apr. 1992, reprinted in 79 Rtvista di Diritto Internazionale 829 (1993).)

12 Protocol No. 6 to the European Convention concerning the Abolition of the Death Penalty, opened for signature Apr. 28, 1983, Europ. TS No. 114, 22 ILM 538 (1983) (entered into force Mar. 1, 1985; and Jan. 1, 1989, for Italy, see Gazz. Uff., Apr. 3, 1989, No. 77). See also Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, opened for signature Dec. 15, 1989, 29 ILM 1464 (1990) (entered into force July 11, 1991; and May 1995, for Italy, see Gazz. Uff., June 27, 1995, No. 148).

13 See, in particular, the two decisions of the French Conseil d’Etat: the Fidan case, Feb. 27, 1987, D.P. 1987, II, 305; and the Gacem case, Dec. 14, 1987, J.C.P. 1988, IV, 86. See also the statement of the Dutch Government concerning the application of Article 1 of Protocol No. 6 to extradition cases, reprinted in 17 Neth. Y.B. Int’l L. 362 (1985).

14 European Convention on Extradition, opened for signature Dec. 13, 1957, Europ. TS No. 24, 359 UNTS 273 (entered into force Apr. 18, 1960; and for Italy, Nov. 4, 1963).

15 The reservation attached by Italy to Article 11 reads: “LItalie déclare qu’en aucun cas elle n’accordera l’extradition pour des infractions punies de la peine capitale par la loi de la Partie requérante.” Pisani & Mosconi, supra note 9, at 575.

16 Soering v. United Kingdom, 161 Eur. Ct. H.R. (ser. A) (1989), 28 ILM 1063 (1989). See Richard, B. Lillich, The Soering Case , 85 AJIL. 128, (1991)Google Scholar.

17 See Venezia v. Italy, App. No. 29966/96, Eur. Comm’n H.R. (Oct. 21, 1996).

18 Presumably, the line of reasoning followed by the European Court of Human Rights as regards the application of Article 3 of the Convention to extradition cases could also apply to Article 1 of Protocol No. 6. In particular, a decision by one of the contracting parties to extradite a fugitive facing treatment violating the Convention or the Protocol may engage the responsibility of that state, even though extradition is not explicitly mentioned in either Article 3 of the Convention or Article 1 of the Protocol. See Soering, 161 Eur. Ct. H.R. (ser. A), paras. 88-90 (1989).

19 The special character of the Convention as a treaty for the collective enforcement of human rights was instrumental in causing the European Court of Human Rights to interpret its Article 3 in the Soering case in the light of the general spirit of the Convention, making it unlawful under that article to extradite a fugitive facing a real risk of exposure to inhuman or degrading treatment or punishment in the receiving state. See Soering, 161 Eur. Ct. H.R. (ser. A), paras. 87-88. A similar line of reasoning could be used with reference to Article 1 of Protocol No. 6 to the European Convention, to which Italy is a party.

20 See Short v. Kingdom of the Netherlands, excerpted and translated in 29 ILM 1388 (1990), and summarized in 85 AJIL 698 (1991).

21 The Court had done so when it declared that the 1870 Extradition Treaty with France was unconstitutional insofar as it permitted the extradition of fugitives facing the death penalty in France, see supra note 3. The Court stressed the obsolescent character of the Treaty, as well as its inconsistency with prevailing trends in international practice. Similar reasoning was adopted by the Constitutional Court in its judgment No. 128 of Apr. 8, 1987 (Sciacca case), when it held the domestic statute implementing the 1973 Treaty of Extradition between Italy and the United States unconstitutional, as it permitted the extradition of minors even when they would not be treated as minors under the laws of the requesting state. See Luigi, Sbolci, Implementation of the Treaty on Extradition of 18 January 1973 between Italy and the United States , 7 Ital. Y.B. Int’l L. 313 (1986-87)Google Scholar. In die latter case, reference was made by the Court to Article 14(4) of the International Covenant on Civil and Political Rights (to which, at the time, the United States was not a party) to show that international law standards supported its findings in the case. On this issue, see Enzo, Cannizzaro, Trattati Internazionali E Giudizio Di Costituzionalità 170-183 (1991)Google Scholar.

22 Article 9(3) of me Italian Code of Criminal Procedure provides that, in case extradition is not granted, on the request of die Ministry of Justice a fugitive shall be prosecuted in Italy for the crime he committed abroad if for such crime a sentence of at least three years of imprisonment is provided. The Constitutional Court stressed that this obligation is incumbent upon Italy if extradition is not granted.

23 A similar provision appears in the following bilateral extradition treaties concluded by Italy: Australia, Aug. 26, 1985 (Art. 6), reprinted in Pisani & Mosconi, supra note 9, at 28; Brazil, Oct. 17, 1989 (Art. 4), id. at 88; Canada, May 6, 1981 (Art. V(f)), id. at 101. If, as the Constitutional Court seems to imply, the absolute character of the prohibition laid down in Article 27 of the Constitution is such as to affect even the exercise of the treaty-making power, one may wonder whether Italy, pursuant to Article 46 of the Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 1155 UNTS 331, could invoke the invalidity of its consent to be bound by such an extradition treaty on the grounds of a manifest violation of a rule of fundamental importance concerning its competence to conclude treaties. Although Article 27 of the Constitution is presumably a norm of fundamental importance, the manifest character of the violation could be contested particularly as of the time the treaties were concluded. Be that as it may, considerations of predictability and fairness suggest that Italy should renegotiate the relevant treaties.

24 See supra note 9. The Court, in its judgment No. 54 of 1979, see supra note 3 and corresponding text, had already held that Article 3 of the Constitution is a relevant parameter of constitutionality for extradition treaties. An Article 3 argument had been raised by the administrative tribunal in its application to the Constitutional Court. The latter did not broach the issue, as it had already found Article 698 of the Code of Criminal Procedure and the statute implementing Article IX of the Italy-U.S. Treaty unconstitutional under Articles 2 and 27(4) of the Italian Constitution.

25 See Polish Nationals in Danzig, 1931 PCIJ (ser. A/B) No. 44, at 24 (“a State cannot adduce as against another State its own Constitution with a view to evading obligations incumbent upon it under international law”); and Pinson v. United Mexican States, 5 R.I.A.A. 327, 393-94 (1932) (umpire of the France-Mexico Claims Commission rejected the view that a state’s constitution could prevail over international law as “absolutely contrary to the very axioms of international law”). See also 1 Oppenheim’s International Law 84 (Robert Jennings & Arthur Watts eds., 1992); Vienna Convention on the Law of Treaties, supra note 23, Art. 27; and International Law Commission, Draft articles on State responsibility, [1973] 2 Y.B. Int’l L. Comm’n 173, 184, UN Doc. A/CN.4/SER.A/1973/Add.1.

26 Benedetto, Conforti, Dirttto Internazionale 343-44 (4th ed. 1992)Google Scholar.

27 It is doubtful whether either of the latter requirements would be satisfied by some of the reservations, declarations and understandings made by the United States in connection with its acceptance of various human rights conventions, and designed, inter alia, to give priority to rights under the U.S. Constitution. The United States has been criticized strongly for attempting to subordinate its obligations under human rights treaties to its own legal system. See Louis, Henkin, U.S. Ratification of Human Rights Conventions: The Ghost of Senator Bricker , 89 AJIL 341 (1995)Google Scholar.

28 The Italian criminal law system, inspired by the constitutional principle of the rehabilitation of offenders, does not conceive of penalties as only punitive in character and as designed to deter would-be criminals. The Constitutional Court in the Venezia case held that, by outlawing the death penalty, the drafters of the Constitution meant to reintroduce into the legal system a principle, defined as “peculiarly Italian in many ways,” that had been removed “in Times of reaction and violence.”

29 See supra note 20.

30 See Judge De Meyer’s concurring opinion in the Soering case, 28 ILM 1063, 1107 (1989). See also cases cited supra note 13. More generally, on this matter see William, A. Schabas, The Prohibition of The Death Penalty in International Law 211-41 (1993)Google Scholar; and Jochen, A. Frowein, The European Convention on Human Rights as the Public Order of Europe , 1 Collected Courses of The Academy of European Law, bk. 2, at. 267, (1992)Google Scholar.