DEPARTMENT OF JUSTICE Private Bag X81, Pretoria, South Africa
Embassy of the Republic of Italy
796 George Avenue
20 / 02 /1998
TO THE OFFICE OF THE ATTORNEY GENERAL
COURT OF PALERMO
DISTRICT UNIT FOR ORGANISED CRIME
KIND ATTENTION OF: GIAN CARLO CASELLI
DISTRICT ATTORNEY GENERAL
APPLICATION FOR A ROGATORY COMMISSION AND APPLICATION FOR EXTRADITION TO ITALY IN RESPECT OF:
- VITO ROBERTO PALAZZOLO
- SALVATORE MORETTINO
- ANDREA MANCIARACINO
With reference to the above applications, we would like to inform you that on examination of all the documents that you have sent, we are of the opinion that a rogatory commission cannot be ordered in this matter. In accordance with the provisions of paragraph 33 of the Supreme Court Act 1959 (Act 59 of 1959) (hereafter referred to as the “Act”), a rogatory commission can only be used for the purposes of obtaining proof from witnesses during proceedings, and not for interrogating suspects or possible witnesses for the purposes of investigations.
Paragraph 33 (1) of the Act stipulates that:
“Each time a rogatory commission or letter of application is received from any Country, territory or Court outside of the Republic, it is forwarded to the Registrar of the Provincial or Local Division by the Director General of the Department of Justice, together with a translation into English or Afrikaans, if the original should be in another language, and notification if the Minister considers that this should become effective, without it being necessary for the representatives either of the parties in the case or in the matter, whichever is applicable, to lodge an application with the above Division. The Registrar will submit the application to the Judge at the relevant Court so as to give effect to the above rogatory commission or application.”
Nevertheless, there is nothing stopping the South African Police Services from assisting the Italian Authorities in their investigations on the matter.
Furthermore, an extradition application for Mr. Vito Palazzolo was made by the Italian Authorities during December 1992. The documents were duly examined and in our opinion, they did not show any prima facie evidence of crimes allegedly committed by Mr Palazzolo in Italy, to justify Mr Palazzolo’s arrest, as required by South African Law.
Mr. Palazzolo was accused and charged in Switzerland for crimes that appear similar to the ones that Italy is requesting the extradition for. The Italian Authorities must indicate whether Palazzolo will be standing trial in Italy for the same facts as the ones he was charged for by the Criminal Court of Appeal in Lugano in Switzerland on 26 September 1985, because this will be one of the questions that the Magistrate will take into consideration when examining the case for the extradition of Mr. Palazzolo.
In order to assist with regard to the application for the extradition of Mr. Vito Palazzolo, I inform you that, in accordance with the provisions of the Extradition Act, 1962 (Act 67 of 1962) (hereafter referred to as the “Act”), it is essential for certain prerequisites to be met.
According to the provisions of paragraph 3 (2) of the Act, the President of the Republic of South Africa has the authority to give his permission in writing for a person to be extradited, in the absence of an extradition treaty. It is worth noting on this point, that the initial permission of the President stands in vece of an extradition treaty, and the subsequent extradition procedure that is followed is the same as the one followed in the case of an existing extradition treaty.
Once the President has given his permission, a Magistrate can issue a warrant of arrest for that person, after having received communication from the South African Department of Justice that an application has been received for the extradition of that person. A person that is detained on the basis of this warrant of arrest must appear before the Magistrate, in accordance with the provisions of paragraph 9 of the Act, where consideration will be given to the evidence produced in the investigation, in order to extradite said person to the relevant foreign country. If, in accordance with paragraph 10 of the Act, and on the basis of the evidence produced, the Magistrate finds that there are sufficient reasons for the person to be tried for the crime, as if it were a crime committed in the Republic of South Africa, the Magistrate will hand down a sentence ordering the imprisonment of the person pending the decision of the Minister to deliver that person to the Authorities of the foreign Country, according to paragraph 11 of the Act.
In the light of the above, the extradition application must be accompanied by:
(a)The original or an authenticated copy of the warrant of arrest or the sentence of the Court having the same effect and issued in accordance with Italian Law, as well as prima facie evidence of the crimes committed by that person;
(b)A statement of the crimes that the extradition has been requested for, in which as much detail as possible is given regarding the time and place that these were perpetrated, a legal description of the crimes, and reference to the most significant legal provisions in this regard;
(c)A copy of the relevant law, or where this is not possible, a statement on the relevant Law; and
(d)A detailed description of the person that the extradition involves, together with any other information that would help to ascertain their identity.
The Convention for the Abolition of the requirement to have public foreign documents legalised (hereafter referred to as the “Convention”) came into effect between the Republic of South Africa and the contracting Country on the 30 April 1995. Article 2 of the Convention stipulates that contracting Countries will be exempt from the legalisation of the documents that the Convention applies to, and that these documents must be produced in one’s own Country. For the purposes of the Convention, “legalisation” means the formality whereby Diplomatic and Consular representatives in the Country in which the document must be produced, certify the authenticity of the signature, the capacity of the signatory of the document, and, where necessary, the identity of the seal or stamp that they bear. Legalisation is therefore not required where the document’s Country of origin is a signatory of the Convention. The only formality remaining is the addition of a certificate (“Apostille”) to the document, which is issued by the relevant Authorities in the Country that the document originates from.
It is important to emphasise that paragraph 10 (2) of the Act stipulates that the Magistrate will acquit the person before him, should he consider that the evidence does not justify the issuing of an order to imprison them, or if the evidence requested is not received within a reasonable space of time.
DIRECTOR GENERAL OF DEPARTMENT OF JUSTICE