1518.
PUBLIC RECORD OFFICE
זון!!!
CO. 885
Reference :-
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
12 PUBLIC RECORD OFFICE, LONDON
No. 39.
(MALTA.)
LAW OFFICERS to FOREIGN OFFICE.
MY LORD,
Lincoln's Inn, 25th September 1874. We are honoured with your Lordship's commands, signified in Mr. Lister's letter of the 22nd August ultimo, stating that an application was made last year by the Italian Consul at Malta for the extradition of an Italian accused of homicide in 1864, and was refused by the Malta authorities on the ground that sentence had been pro- nounced against him, and that there was no apparent intention to give him a new trial. The Extradition Ordinance between Malta and Italy of 1863 provided only for the surrender of persons charged with extradition offences, with a view to their trial. whereas the surrender of persons convicted of such offences, as well as of those charged with them, is recognized by the Extradition Act of 1870, and by the Treaty with Italy of February 5, 1873. In the Act of 1870, however, it is provided that the terms "conviction" and "convicted" shall not include or refer to a "conviction for con- tumacy," and, in the Treaty with Italy, that the demand for extradition must not be founded upon a sentence in contumaciâ.
The result of the correspondence which took place relative to the application of the Italian Consul was, that it was decided to amend the Malta Ordinance so as to make its provisions correspond with those of the Extradition Act of 1870 and the Treaty with Italy.
Instructions were accordingly sent to Malta by the Secretary of State for the Colonies, and an Ordinance has been passed by the Malta Government to amend the Ordinance of 1863. A copy of this Ordinance, together with a Report thereon by the Crown Advocate of Malta, is enclosed in a letter from the Colonial Office, which Mr. Lister was directed by your Lordship to transmit to us therewith.
Mr. Lister was also to transmit to us a further letter from the Colonial Office, enclosing a memorandum by the Crown Advocate of Malta, together with a copy of a correspondence which had passed between him and the Italian Consul-General at Malta.
From this correspondence we would see that the Italian Government entertained a serious doubt as to the true import of the last section of Article IX. of the Anglo- Italian Treaty of February 1873, which stipulates that "the demand for extradition must not be founded upon a sentence in contumacia." The Italian Government consider that this stipulation prevents them from demanding the surrender of an individual on the mere production of a sentence passed on him in Italy in contumacia, but that it offers no obstacle to a demand for his surrender on production of depositions or other evidence of criminality, though their ultimate object may be not to try the accused in his presence (in contradictorio), but to put him at once, without any such trial, to undergo the punishment awarded by his sentence in contumacid. The Italian Govern- ment take the section of Article IX. to provide only that a sentence passed in contumaciá is insufficient to prove the criminality of the person whose surrender is applied for, but that on the necessary proofs being produced, though they may be the same on which he had already been condemned in contumacia, no objection to the surrender can, under the Treaty, be raised on the ground that the accused would not have the benefit of a new trial.
The question thus raised by the Italian Government might, as pointed out by the Malta Advocate. also arise on the various articles of the Extradition Treaties between this country and foreign States, which contain an agreement similar to that of the Italian Treaty, and in an aggravated form in the case of the Brazilian Treaty, in which the words are (Article 9) “The requisition cannot, however, be founded on a sentence passed in contumacia, that is to say, where the delinquent has not been personally cited to defend himself."
Copies of the various Extradition Treaties between Great Britain and foreign States were also transmitted therewith, and Mr. Lister was to request that we would take those papers into our consideration and furnish your Lordship with our opinion whether under these Treaties, or any of them, Her Majesty's Government may be legally called upon to surrender a person for an offence for which he has already in the country
▲ 12916-46. 25.-12/81.