Abstract. The “Mitterand doctrine” on the right of asylum and extradition was formulated by the French president in February 1985 and applied, according to a distorted interpretation and false ideological prejudices, towards Italian terrorists active in the so-called “years of lead”, who sought refuge in France.
A case in point is that of Cesare Battisti, sentenced in absentia to life imprisonment, whose extradition France denied in 1991 on the grounds of weak evidence, disavowed by the French Council of State with the historic decision of March 18, 2005.
Today, however, with the arrest on 28 April of Italian terrorists still refugees in France, an arrest decided directly by President Macron, all previous interpretative ambiguities seem definitively overcome.
For Italy, once the French extradition procedures are concluded, and given that more than forty years have elapsed since the perpetration of the crimes, the delicate and difficult problem arises of finding a balance between the punitive and preventive function of the penalty and to give priority to the re-educational function.
As the President of the Constitutional Court rightly emphasized: “The right to escape cannot be institutionalized”. Consequently, the sentences must be carried out and it is up to the judges to evaluate during their execution, with intelligence and without prejudices, the re-education process and, therefore, take the relative measures provided for by the law.
SUMMARY: 1. Introduction. – 2. The “Mitterand doctrine”. – 3. The Battisti case and the application of the “Mitterand doctrine” in the eighties/nineties. – 4. A first important turning point. The decisions of the French Council of State of March 18, 2005 and of the European Court of Human Rights of December 12, 2006. – 5. Concluding remarks. The difficult balance between the punitive and preventive function of the penalty and the priority re-educational function.
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