Re Bottali

• Jurisdiction: Italia
• Date: 17 Ottobre 1980
• Court: Court of Appeal of Rome (Italy)

Italy, Court of Appeal of Rome.

Re Bottali

State succession Treaties Newly independent State India Whether new State bound by treaties concluded by imperial predecessor Whether express agreement between new State and other parties to treaty required Extradition Treaty, 1873, between Italy and United Kingdom Treaty applicable to British imperial possessions Treaty not denounced by India following independence Whether treaty still in force between Italy and India Italy, Court of Appeal of Rome

Summary: The facts:The Public Prosecutor attached to the Court of Appeal of Rome requested the recognition in Italy of a judgment delivered by the Court of Bombay, sentencing an Italian national, Bottali, to four months' imprisonment and a fine for possession of drugs. Defence counsel objected that two of the conditions required by Italian legislation for the recognition of foreign judgments were lacking, namely (i) the Indian judgment was not final and (ii) no treaty of extradition existed between Italy and India and the request for recognition which was consequently necessary had not been made by the Italian Minister of Justice. Thereupon the Italian Ministry of Justice informed the Court that the Indian judgment had become final because ninety days had elapsed since the sentence was passed and consequently the legal measures adopted against Bottali had become irrevocable. Furthermore, in the opinion of the Ministry, the Convention between Italy and Great Britain for the Reciprocal Extradition of Criminals, signed in Rome on 5 February 1873, still applied since it had not been denounced by India. Following this communication from the Ministry of Justice, the Public Prosecutor felt it necessary to give his opinion on the question of whether the Extradition Convention was applicable, pointing out that the succession of a new State to treaties concluded by the predecessor State depended on an explicit declaration and no such declaration had been made by India on achieving independence.

Held:The request made by the Public Prosecutor for the recognition of the Indian decision could not be granted because the Italian Minister of Justice had not made a specific request for such recognition and no treaty of extradition existed between Italy and India.

No rule of customary international law had evolved to the effect that, in cases of the succession of States, conventions concluded by the predecessor State retained their force independent of any agreement to that effect between the new State and third States which were the original contracting parties. Consequently, since no such agreement had been made by India with Italy, the Convention on Extradition of 5 February 1873, concluded by Great Britain with Italy and applicable to the colonies and foreign possessions of the contracting parties, was not in force as between Italy and India.

The following is the text of the relevant part of the judgment of the Court:

[The Court first pointed out that, although in his final statement the Public Prosecutor had implicitly requested the rejection of the action for recognition of the Indian judgment initially brought by himself, the Court had to pronounce on the matter. Indeed, the Public Prosecutor's request for recognition of the foreign judgment was legally different from the opinion he had given in his final statement. But this opinion had been expressed in a merely advisory role, whereas the action initially brought made it incumbent on the Court to pass judgment on the case at issue. The Court continued:]

3. There can be no doubt that the conditions for the recognition of a foreign criminal decision, provided for in Article 674(1), Nos. 1 and 3, of the Code of Penal Procedure, are satisfied. These include a summons to the accused to appear before the foreign judge formulated in such a way as to ensure that he had known, or could have known, when and how the case against him was being heard, and that he had the benefit of the advice of a counsel for the defence, as well as the absence in the...