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In re Ficorilli

Publisher Switzerland: Federal Court
Author Federal Tribunal of Switzerland
Publication Date 14 February 1951
Cite as In re Ficorilli, Switzerland: Federal Court, 14 February 1951, available at: http://www.refworld.org/docid/3ae6b6258.html [accessed 29 July 2014]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

THE FACTS. - This was a request by the Italian Government for the extradition of one Ficorilli, an Italian national, who was charged with having, in December 1944, when a member of the neo-fascist San Marco division, carried out the execution of one Capt. Janelli as a " traitor ". It was contended on behalf of the accused that the offence with which he was charged was political in character, and was therefore not extraditable.

Held: that extradition must be refused. The offence was political in nature. The Court said:

"The question before the Court is whether, in killing Capt. Janelli, Ficorilli committed a relative political offence in the meaning of Article 10 of the Federal Extradition Law and of Article 3 of the Italo-Swiss Extradition Treaty.

"A relative political offence is one which, while having the characteristics of a common offence, acquires a political character by virtue of the motive inspiring it, or the purpose for which or the circumstances in which it has been committed; in other words, it is in itself a common offence but has a predominantly political character.

"The Federal Tribunal has previously decided that one must regard as a political offence an offence which is the consequence and manifestation of an extraordinary agitation or tension between political parties, and of disturbances which lead the parties to use methods of violence against their opponents, causing disorders and large numbers of crimes of violence; and any act which, even when considered in isolation, must be considered to be a consequence of reprisals in a general political uprising and struggle for power, not as the carrying into effect of personal motives and private aims.

"In the present case there was armed conflict between two parties struggling for power, the partisans and the neo-fascists. Recourse was had to violence and to military or pseudo-military operations.... In the winter of 1944 there were two contending camps in Italy, fighting not only on the international plane for or against the victory of the Allies or of the Germans, but internally for or against the Badoglio Government (replaced by the Bonomi Government in May 1944), for or against the neo-fascist Government.

"That the struggle between the two contending groups, assumed the character of civil war is shown by a Decree-Law of July 25, 1944 (issued by the Bonomi Government), entitled 'Sanctions against Fascism'. Article 5 of that Decree-Law provided:

'Any person who, after September 8, 1943, has committed or commits offences against the safety of the State, by intelligence correspondence or collaboration with the German invader, shall be punished in conformity with the provisions of the Penal and Military Code of War.

'The penalties provided for soldiers shall be applicable also to civilians. Soldiers shall be subject to the jurisdiction of military tribunals, civilians to that of ordinary courts.'

"The soldiers and officers of the San Marco division, by the mere fact that they participated in military operations against the partisans, made themselves liable to punishment in conformity with Article 51 of the Penal Military Code of War.... That offence, considering the circumstances in which it was committed and the aim sought, had a political character. Admittedly, the Italian authorities do not ask for extradition in respect of that offence.... The request for extradition relates exclusively to the execution of Janelli. According to the Italian authorities a distinction must be made between the two offences. But it is clear that, if the circumstances in which it was committed and the purpose it sought to serve are taken into account, even the execution of Janelli appears to be a political act. Janelli, an officer of the neo-fascist division of San Marco, deserted and went over to the partisans, with whom he fought against his former comrades-in-arms. Subsequently he returned to the neo-fascist side and helped in a search for arms and munitions belonging to the partisans. At the end of that operation he was executed - significantly not by Ficorilli himself, but by a subordinate of the latter....

"It is, of course, conceivable that a soldier should kill another during military operations from personal motives. But such motives must appear from the judgment or the allegations of the authority requesting extradition.

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