AVV. BALDASSARE LAURIA Patrocinante innanzi le Giurisdizioni Superiori via Rossotti 17 tel ALCAMO - ITALIA

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1 AVV. BALDASSARE LAURIA Patrocinante innanzi le Giurisdizioni Superiori via Rossotti 17 tel ALCAMO - ITALIA AFFAIRE PALAZZOLO VITO ROBERTO OPPOSITION TO REQUEST OF EXTRADITION ADVANCED FROM ITALY TO THE KINGDOM OF THAILAND. I am a Senior Counsel, registered with the Lawyer s Roll of Trapani. I keep offices at 17 Via Rossotti in Alcamo, and am duly admitted to appear before the Italian Supreme Court of Appeal and other superior courts in Italy. I serve as Attorney General at the International Court of Arbitration,and have acted in several proceedings before the European Court of Human Rights ( ECHR. ) The contents of this document are true. - Unless I indicate otherwise, or the contrary appears from the context, such contents are within my own personal knowledge and belief. The extradition request from the Italian Republic to the Kingdom of Thailand against Mr. VITO ROBERTO Palazzolo manifests itself in conflict with the principles of international customary and treaty rules of law which adheres to the same Italian Republic. The European treaty law on extradition - whose sources are the European Convention on Extradition of and the two Additional Protocols, the Convention on the Suppression of Terrorism of , the European Convention for the implementation of agreements Schengen Agreement of , of the Brussels Convention and the Dublin Convention of is based, among other things, on the principle of ne bis in idem. In this case the sentence - for which extradition was requested from Italian Republic - was pronounced in absentia, in clear violation of the principle of ne bis in idem. 1

2 ON THE PROCESS IN ABSENTIA As said, The Italian Republic is addressed to the Framework Decision of the Council of Europe, the decision which is required to adapt its legal system. Article. 5 of the Framework Decision 2002/584/JHA concerning the judgments in absentia, provides for the possibility that delivery of the condemned, in execution of a foreign judgment of condemnation, is conditioned to the commitment of the requesting State to provide adequate safeguards to make sure and a new trial the offender. The principle expressed in the Framework Decision of the Council of Europe has been understood by almost all European Union member States, but not from Italy, and in fact in most countries it is: a) IN GERMANY, Art. 83 of the Federal Act on International Judicial Assistance requires as a condition of delivery of the ordered that the judgment is not in default (with the guarantee, if any, of the right to retrial in which the allegation is examined against the suspected); b) IN THE UNITED KINGDOM, the Section 20 dell'extradition Act 2003 provides that if the person has not been tried in his presence the delivery of the same person can happen only on condicion of a new trial in which are secured the rights of defense; Similar laws have been adopted by the Grand Duchy of Luxembourg, the Kingdom of Sweden and Belgium. However, in the request for extradition by the Italian Government to Thai Government, there is any mention to such an obligation, not having the required insurance to Thailand the guarantee of "process in the presence" expected as seen from the Framework Decision of the Council of Europe and by Italian law. On this point it should be noted the serious violation of the right of defense which has affected the judgment of the Court of Appeal of Palermo. The sentence of the Court of Appeal of Palermo to the penalty nine years in prison for involvement with the Mafia was adopted in breach of Article. 6, paragraph 3, of the European Convention of Human Rights. Indeed, Article 6 3) grants the accused the right to be informed not only about the cause of the accusation, that is acts that are against him and invoked by the public prosecutor, but also the legal status of these facts and in detail (see, Cause 2

3 Deweer. Belgium, February 27, 1980, AO 35, pp , 56 Artico c. Italy, May 13, 1980, AO 37, p. 15th, 32, c Goddi. ItaliaAprile 9, 1984, AO 76, p. 11, 28; Colozza c. Italy, February 12, 1985, AO 89, p. 14, 26). The scope of this particular provision has to be evaluated in light of the broader right to a fair trial as guaranteed by paragraph 1 of Article 6 of the Convention. The legal classification and the exact challenge of the offense is therefore an essential condition for the correctness of the procedure (Pelissier and Sassi, Supra, 52), and this in order to allow the accused an adequate and timely technical defense. (Affaire Sadak C / TURKEY, ECHR - Judgment of 07/17/2001). The European Court has stated that the judge must respect the principle of due process and give the parties an opportunity to meet and discuss any matter essential to the outcome of the procedure, especially when it rejected an appeal in cassation or decide a case on the grounds raised ex officio. (Clinic Acacias and other c. France, Nos /01, 65406/01, 65405/01 and 65407/01, 38, October 13, 2005; Prikyan and V. Angelova Bulgaria, NO 44624/98, 52, February 16, 2006). The provision of Article 6 3 a) requires, therefore, a particular form of the accused as must be informed of the nature and cause of the accusation against him: from the provisions of paragraphs a) and b) of Article 6 3 shows the specific right to be informed of the nature and cause of the charge into perspective of the right of the accused to prepare his defense (Pelissier and Sassi c. France, supra, 52-54). In our case, the judgment of the Court of Palermo dated , page 179, stated conclusively "... can t say with certainty, in consideration of the evidence available to the Court, that the defendant is " part "of 'association with the Mafia or Cosa Nostra, nor that the latter has called to be part of the samewhich". At the opposite result reached, as stated, the judgment of the Court of Appeal of 11 July 2007, which through a mutation of the fact ", said the safe participation of PALAZZOLO in Mafia association. It seems clear, therefore, as there was in the appeal process, which he used only the Palazzolo, a "reformatio in pejus" of the judgment of first instance: the first alleged that Palazzolo did not participate in the Mafia, the second the exact opposite. Such a serious violation of the right of defense PALAZZOLO, tried in absentia and in violation of rules in art. 6 of the European 3

4 Convention of Human Rights, do not allow extradition of the same without proper insurance by the State requesting the opening of a new process, guarantees that in this case the Republic of Italy did not in any way. In 2000, the Committee of Ministers of the Council of Europe issued a recommendation with which formally invited Member States to adapt their systems to ensure the reopening of the trial process in which there had been serious violations of the right of defense. RECOMMANDATION No R (2000) 2 DU COMITÉ DES MINISTRES DU CONSEIL DE L'EUROPE 28. Dans sa Recommandation no R (2000) 2 sur le réexamen ou la réouverture de certaines affaires au niveau interne suite à des arrêts de la Cour européenne des droits de l'homme, le Comité des ministres du Conseil de l'europe a encouragé «les Parties contractantes à examiner leurs systèmes juridiques nationaux en vue de s'assurer qu'il existe des possibilités appropriées pour le réexamen d'une affaire, y compris la réouverture d'une procédure, dans les cas où la Cour a constaté une violation de la Convention, en particulier lorsque : i) la partie lésée continue de souffrir des conséquences négatives très graves à la suite de la décision nationale, conséquences qui ne peuvent être compensées par la satisfaction équitable et qui ne peuvent être modifiées que par le réexamen ou la réouverture, et ii) il résulte de l'arrêt de la Cour que a) la décision interne attaquée est contraire sur le fond à la Convention, ou b) la violation constatée est causée par des erreurs ou défaillances de procédure d'une gravité telle qu'un doute sérieux est jeté sur le résultat de la procédure interne attaquée». In truth, Article. 4 of the Additional Protocol to the Convention EDU establishes the right to review the judgment of conviction affected by serious procedural irregularities. And nevertheless, despite the contractual obligations assumed on the guarantees to be offered at the trial in absentia, the Republic of Italy was condemned by the European Court of Human Rights in Strasbourg, which he considered inadequate procedural instruments on the return of the term sentenced in absentia (CEDU AFFAIRE Sejdovic c. ITALIE requ-judgment of /2000). La chambre a conclu à la violation de l'article 6 de la Convention. Elle a estimé que le requérant, qui n'avait jamais été officiellement informé des poursuites entamées à son encontre, ne pouvait pas être considéré comme ayant renoncé de manière non équivoque à son droit de comparaître à l'audience. De plus, le droit interne ne lui offrait pas, avec un degré suffisant de certitude, la possibilité d'obtenir un nouveau procès en sa présence. Cette possibilité était subordonnée aux preuves pouvant être fournies par le parquet ou par le condamné quant aux circonstances entourant la déclaration de fuite, et ne satisfaisait pas aux exigences de l'article 6 de la Convention. BREACH OF THE PRINCIPLE OF THE NE BIS IN IDEM INTERNATIONAL The sentence of the Court of Appeal of Palermo delivered in 2007 for criminal association relates to the same procedural facts of the judgment rendered by the 4

5 Criminal Court of Assizes of the Republic of the Canton of Ticino (Switzerland) of 26 September 1985, sentencing and the Court of Rome of 28 March 1992 and the final judgment of the Swiss Federal Court - Court of Criminal Appeal - May 3, 1994, filed on June 16, 1994 next. This is therefore a violation of the prohibition of ne bis in idem international, that is enshrined in Article. 4 of the Protocol. 7 of the Convention. The principle of ne bis in idem international as well as now being provided by a series of international conventions, including the Covenant on Civil and Political Rights, signed in New York on 03/23/1966 (Article 7), in Europe it is expressly enshrined in Article. 4 of the Protocol. Appendix 7 to the European Convention of Human Rights, from Article 54 of Schengen Agreement and the Charter of Fundamental Rights of the European Union, proclaimed by the European Parliament on But, because of the spread that is having in any international conventions, the principle of ne bis in idem is now enshrined in international legal culture and integrates a true principle of customary international law: The Protocol. 7 and the UN Covenant on Civil and Political Rights are expressed in terms of "same offense" and "même infraction" of the American Convention "same cause" and "Mêmes faits" the Schengen Convention speaks of "same acts" and "même faits", Statute of the international criminal Court "same conduct" and "Mêmes actes." These differences are also found in the jurisprudence of the Courts responsible for the protection of the various international instruments. It is evident that the expressions "same acts" or "same conduct" are different from the "same offense" (and the corresponding French terms). Now, the European Court considers that the term "offense" does not justify a restrictive interpretation (ie: the crime and not the conduct or the fact): any piece of legislation is one means "alive" that must be contextualized and updated. With the consequence that Article. 4 of the Protocol. 7 must be understood as referring to (where it says "offense", ie crime) the identity of the facts or to facts that are substantially the same. In the context of the principle sources pactional, the aforementioned considerations must also be read in light of Article. 3 of Decision 2002/584/JHA on the European arrest warrant containing the "Grounds for mandatory non-execution of European arrest warrant," that the judicial authority of the executing Member State shall refuse to execute the European arrest warrant if under to information held by the executing judicial authority that the person has been finally judged by the same acts by a Member State (provided that, if convicted, the sentence has been served or is being enforced or can no longer be executed under the laws of the sentencing Member State). 5

6 However, the whole matter of the case which was submitted in Italy Mr PALAZZOLO, is marked by a litany of violations of ne bis in idem principle really strange, for nature and number of the same, it seems clear the persecution brought into being by Italian authorities in respect of the same PALAZZOLO for over twenty years resident in the territory of the Republic of South Africa South Africa. - Page no. 61 Palermo Appeal Court judgment. As is clear from the report of the Public Prosecutor of Palermo, accompanying the request for extradition, Mr. VITO ROBERTO Palazzolo in Italy has been subjected to three processes, all involving the same conduct, forming the basis of the Swiss judgment has become final in And in fact, A) With no judgment. 613/1992 of the Court of Rome VITO ROBERTO Palazzolo was acquitted of the charge of involvement in a mafia association foreseen by art. 416 bis cp, and sentenced for the crime of association aimed at international drug trafficking in competition with Cuntrera Pasquale, Pasquale Caruana, Antonino Madonia, Greek Leonardo, Salvatore Riina (Pizza Connection trial) P.8 Palermo Prosecutor Report -. The report of the Prosecutor of Palermo fails to highlight that the aforesaid condemnation and subsequent judgment of 31 March 1993 of the same Court of Rome, under the principle of ne bis in idem to Palazzolo, said the penalty applied with judgment to (the drug offense) extinct as a result of the atonement of his sentence with the Swiss judgment, pending the identity of the fact - crime. B) Whit judgment of the Court of Palermo, dated , Mr PALAZZOLO was sentenced to twelve years in prison for drug trafficking. That last sentence was absorbed by the Swiss sentence as it concerned the same conduct. PAG. 9 Report of Attorney. C) By judgment of the Court of Appeal of Palermo dated nr. 2272/2007, Mr PALAZZOLO was convicted of Mafia association Article 416 bis. At the base of this judgment were given the same facts as in the judgment of Rome of 1992, that had acquited Mr PALAZZOLO from accusation of involvement in a criminal association. In fact, at p. 9 of the judgment, exposes how Mr 6

7 PALAZZOLO has made part of Mafia association starting from the early 80, that in a period covered by the judged exculpatory. The violation of the principle of ne bis in idem International is obvious: indeed, the art. 54 of the Schengen Convention of expressly provides that... a person whose trial has been performed in a Contracting State can not be prosecuted in another Contracting State for the same acts provided that, if a penalty has been imposed has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the Contracting State which pronounced the sentence. On this point, the judgment of the European Court of Human Rights (ECHR Judgment of Case Zolotukhin C / RUSSIA) analyzed the profile of the notion of "same offense" for purposes of the prohibition of ne bis in idem principle in article 4 of the Protocol. 7. He acknowledges to have taken different approaches in the past, placing the emphasis now on the identity of the facts, regardless of their legal status, accepting the argument that the identity can be deduced also from different crimes, now the existence of elements essential common to different offenses. It has therefore decided to provide a clear definition of what is meant by "same offense" for purposes of the Convention. He clarified that the guarantee dictated by that article was constructed as prohibiting the prosecution or the judgment of a person for a second time for an offense which concerns the same acts or facts that are "substantially" the same as those for which has already been judged. On closer inspection, the judgment of conviction against Mr VITO ROBERTO PALAZZOLO though it makes formal reference to events after 1992, instead has appreciated exclusively conducted before that date. At p. 14, 15 and 16 REPORT OF THE ATTORNEY GENERAL OF THE REPUBLIC OF PALERMO accompanying the request for extradition is made reference to the facts of Pizza Connection, the ownership by Mr PALAZZOLO of bank accounts in Swiss banks where were deposited money from the sale of drugs organized by members of the Sicilian Mafia in the U.S., the transfer of money and compensation between financial companies and Swiss bank in New York. And yet, it refers to ownership of the same company PALAZZOLO PA.GE.KO enterprise specializing in designing and selling real estate and industrial complexes, society PALAZZOLO JOYS srl. 7

8 And yet, it refers to ownership of the same company PALAZZOLO PA.GE.KO enterprise specializing in designing and selling real estate and industrial complexes, society PALAZZOLO JOYS srl. Such behaviors are all prior to 1992 and already the subject of the sentence in Switzerland, against which the Italian authorities could no longer proceed for the constraint of res judicata. 8