On 28 March 2023, the French Cour de Cassation upheld the decision of 29 June 2022 whereby the Cour d’appel of Paris had ruled that ten of the former members of the left-wing terrorist organization known as the Red Brigades – who had found refuge in France for almost 40 years – should not be extradited to Italy. The Italian Government, which in January 2020, with the support of the French authorities, had requested the extradition of the former terrorists,[1] condemned the decision of the Cour de Cassation, thus continuing the never-ending debate on the political gradient of extradition.[2]
In this particular case, however, the debate was enriched by an argument put forward by the Italian Parliament, concerning the relationship between the so-called Mitterrand doctrine[3] – which underlies the decision of the former terrorists to seek asylum in France – and the possibility of invoking respect for the European Convention on Human Rights (ECHR) as an obstacle to extradition.
The Cour de Cassation rejected the extradition request on two grounds. First, by reason of non-compliance with Article 6 ECHR on the right to a fair trial, since the Italian legal system does not guarantee a person convicted in absentia the right to a new decision by a judge, after a hearing, on the merits of the case in fact and in law. Furthermore, the Court considered that the extradition request, although motivated by the will to punish crimes of exceptional gravity, would have disproportionately affected the right to respect for private and family life of the former terrorists, guaranteed by Article 8 ECHR. According to the Court, after being welcomed in France, the perpetrators had severed all ties with Italy and had assimilated in French society in both the public and private spheres.[4]
As mentioned, the former terrorists had chosen France as their State of refuge by virtue of the Mitterrand doctrine. This is a political rather than a legal construct (since, remarkably, it was never codified in a formal legal instrument) that, based on a public declaration made by the then President of the French Republic on 1 February 1985, granted asylum to foreigners convicted for “politically motivated acts of violence who have renounced all forms of violence”.[5]
On 24 May 2023, after the Undersecretary of State for Health, Mr. Marcello Gemmato, had expressed the favourable opinion of the Government, the Italian Chamber of Deputies (108th Meeting, XIX Legislature) approved Motion No. 1-00102, which took a critical stance on the ruling of the Cour de Cassation.[6]Interestingly, the Motion does not seem to question the legitimacy of the Mitterrand doctrine per se, but rather its allegedly improper application to the case at issue, which created the factual circumstances that subsequently led the French judges to invoke Article 8 ECHR in defence of the private and family life of the perpetrators. The Motion makes clear that, “according to the Italian Government, the time lapse [between the crimes committed and the execution of the sentences] can only be attributed to a distorted interpretation of the so-called ‘Mitterrand doctrine’”.[7] In fact, the author of such doctrine had never meant to accord it unlimited scope; conversely,
the then President of the French Republic, François Mitterrand, had offered refuge to the former Italian terrorists, but on condition that they were not guilty of serious blood crimes [i.e., resulting in death or severe injury]: a condition that was certainly not met by the ten terrorists in question […].
The Italian position, as expressed in the Motion, seems to emphasize that the non-extradition of the former members of the Red Brigades was flawed from the very beginning due to a misapplication of the Mitterrand doctrine, which was inadmissible in the specific case because the nature of the crimes committed put them outside the perimeter of the doctrine. This position is in sharp contrast to the judgment of the Cour de Cassation, which, while recognizing the exceptional gravity of the offences committed, considered that extradition was in any event contrary to the protection of the accused’s fundamental rights.[8]
Consequently, Italy seems to have excluded the admissibility of invoking Articles 6 and 8 ECHR by the concerned individuals, since the conceptual premises that would support non-extradition based on the Mitterrand doctrine should have never been recognized in the first place. In particular, it may be inferred from the Motion that the right to private and family life would not apply to former terrorists that started a new life in a different State as a result of the illegitimate application of a non-extradition doctrine.
On a more political level, this seems to be confirmed by the fact that the Motion emphasizes the coincidence of interests between Italy and France regarding extradition, stating that “on 26 March, the French Minister of Justice, Eric Dupond-Moretti, said, with regard to the ten former terrorists arrested, that he considered them to be ‘murderers’ and wished them to be extradited […]”.[9] The Motion also recalls that “the incumbent French Government has already recognized Italy’s right to demand the enforcement of their convictions”.[10]
In conclusion, Italy’s position seems to imply that Articles 6 and 8 ECHR do not preclude extradition where a country’s inability to imprison convicted offenders in a timely manner is due to the protection illegitimately granted by the State of refuge. Accordingly, the Motion commits the Italian Government to assisting the families of the victims of the crimes perpetrated by the aforesaid former terrorists in applying to the European Court of Human Rights against the decision of the Cour de Cassation.[11]
Amelia Fiore
A quotable version of this post was published in the Italian Yearbook of International Law: Fiore, “The Non-extradition of Italian Terrorists from France, Between Political and Legal Issues”, IYIL XXXIII (2023), 2024, pp. 513-515; available here.
[1] The extradition request was made on the basis of the European Convention on Extradition of 13 December 1957 and the Dublin Convention of 27 September 1996 relating to Extradition between the Member States of the European Union.
[2] Among others, Galgani, “Estradizione, reato politico e clausola di non discriminazione: da una vicenda recente qualche utile indicazione per il futuro?”, Archivio penale, 2012.
[3] For a brief overview, see Menon, “Explaining Defence Policy: The Mitterrand Years”, Review of International Studies, 1995, p. 279 ff. See also here.
[4] Cour de Cassation (Chambre criminelle – Formation de section), Pourvoi No. 22-84.394, 28 March 2023, paras. 16, 19-21.
[5] Galgani, cit. supra note 2, p. 3 ff.
[6] The Government’s favourable opinion followed the previous debate on the Motion at the 106th Meeting of 22 May 2023.
[7] See Motion No. 1-00102, recital 7 of the preamble.
[8] Cour de Cassation, cit. supra note 4, para. 19.
[9] Cit. supra note 7, recital 3 of the preamble.
[10] Ibid., recital 12 of the preamble.
[11] Ibid., para. 1.
Italy's Diplomatic and Parliamentary Practice on International Law 