commentary by Patrick H. Moore
Immediately on the heels of her most recent conviction for the murder of Meredith Kercher, Amanda Knox stated that under no circumstances would she willingly return to Italy. I believe she said something to the effect that “they would have to drag her kicking and screaming.”
Now, however, M. Cherif Bassiouni, an Emeritus Professor of Law at DePaul, and a founding member of the International Human Rights Law Institute, has stated in writing in an article that appears in Oxford University’s blog, OUP, that based on the 1983 U.S.–Italy Extradition Treaty, Amanda Knox’s extradition from the United States to Italy is not likely under existing jurisprudence.
As anyone who has not been doing a Rip Van Winkle knows, on January 30, 2014, the Appeals Court of Assizes of Florence, Italy overturned the acquittals of Ms. Knox and her former boyfriend Raffaele Sollecito that were rendered by the Perugia Assizes Court of Appeal in October of 2011. The Florence court convicted Knox in absentia and sentenced her to 28 years and six months in prison and sentenced Sollecito to 25 years. The Presiding Judge of the Florence Court has until the end of April to write his judgment (with rationale) on the ruling. Knox and Sollecito’s lawyers have stated that as soon as the judgment is filed, they will appeal it to the Court of Cassation. Then, the Florence court’s judgment is not final until the Court of Cassation makes yet another ruling.
Why Ms. Knox Will Not Be Extradited from the United States to Italy
Strangely, Italy does not consider it’s complex and seemingly endless;y repetitive approach to adjudicating serious crimes to be in violation of the constitutional prohibition of ne bis in idem (double jeopardy) reflected in article 649 of the Italian Code of Criminal procedure. The prohibition of ne bis in idem is included in the European Convention for the Protection of Human Rights and Fundamental Freedoms. To this point, however, the European Court for Human Rights (ECHR) has failed to interpret Italian law as being in violation of ne bis in idem.
Therefore, if the extradition decision was in the hands of ECHR, Knox would no doubt be fair game for the Great Extradition Cannon (Canon) in the Sky. Fortunately for Knox, however, the U.S. Extradition Treaty with Italy would seem to protect her. Professor Emeritus Bassiouni writes:
The 1983 U.S.–Italy Extradition Treaty states in article VI that extradition is not available in cases where the requested person has been acquitted or convicted of the “same acts” (in the English text) and the “same facts” (in the Italian text)… Italy’s law prohibiting ne bis in idem specifically uses the words stessi fatti, which are the same words used in the Italian version of article VI, meaning “same facts.” Because fatti, or “facts,” may include multiple acts, the Second Circuit Court of Appeals applied the test of “same conduct” in Sindona v. Grant, 461 F.Supp. 199 (S.D.N.Y. Nov 15, 1978) (NO. 78 CIV 2472(HFW)), citing international extradition in US law and practice, based on this writer’s analysis.
Based on this interpretation of article VI, Amanda Knox would not face extradition to Italy should Italy seek it because she was retried for the same acts, the same facts, and the same conduct. Her case was reviewed three times with different outcomes even though she was not actually tried three times. Thus, in light of the jurisprudence of the various US circuits on this issue, it is unlikely that extradition would be granted.
Professor Emeritus Bassiouni goes on to state that the US Supreme Court can also make a constitutional determination under the Fifth Amendment of the applicability of double jeopardy to extradition cases, in order to measure the requesting state’s right to keep on reviewing the same acts or facts in the hope of obtaining a conviction. Bassiouni explains, however, that to date no such interpretation of the Fifth Amendment has been rendered by US courts in any previous extradition case. This, of course, does not mean that such an interpretation could not occur. Thus far, however, double jeopardy defenses with respect to extradition requests have been dealt with as they arise under the applicable treaty as opposed to being treated constitutionally.
The professor concludes by stating that Amanda Knox’s extradition from the United States to Italy under existing jurisprudence is unlikely.
What this appears to mean in simple layman’s terms is that we will not extradite a US citizen if his or her set of facts is first tried in a foreign court of law and then endlessly revisited with varying outcomes.
Rick Stack In-House Legal Expert
It is, of course, quite possible that other legal experts (including our in-house legal sage Rick Stack) might disagree with Professor Bassiouni’s interpretation of Article VI of the U.S. Extradition Treaty with Italy. Nonetheless, I think that for the time being, Amanda Knox can afford to breathe a few quick sighs of relief as she strives to complete her Creative Writing degree at the University of Washington in Seattle.
M. Cherif Bassiouni’s credentials are nothing to be sneezed at. He was a Professor of Law at DePaul University in Chicago where he taught from 1964-2012 before retiring to Emeritus status. A founding member of the International Human Rights Law Institute (established in 1990), he served as President of the Institute from 1990-2007, and then President Emeritus. He has also been President of the International Institute of Higher Studies in Criminal Sciences, Siracusa, Italy since 1989 and he is the author of International Extradition: United States Law and Practice, Sixth Edition.
The good professor is one busy fellow and is obviously a legal heavyweight, not only here in the US but also in Italy, where given his lofty stature, I would imagine the Italian powers might well consult with him before doing anything as foolish as demanding — in the event the Italian Court of Cassation affirms Knox’s recent conviction — that the US turn her over to the Italian authorities.
This should not bother many of the anti-Knox folks, however, inasmuch as they’ve repeatedly claimed that they have no real interest in seeing Knox returned to Italy to serve another 20 years or so in an Italian penitentiary, but merely desire justice in the form of a permanent conviction for the murder of Meredith Kercher. Of course, people’s opinions change and these same folks may do an about face and object vociferously if the Court of Cassation affirms Knox’s conviction and the US chooses not to extradite her.