Justice

Almasri case, minister's opinion referred to the Constitutional Court

Challenged the legislation in the part involving politics in the procedure

by Giovanni Negri

1 November 2025

2' min read

Translated by AI

Versione italiana

Key points

The disputed procedure
Minister as "organ of transit"

2' min read

Translated by AI

Versione italiana

The Italian law, the interpretation of which by the Court of Appeal of Rome contributed earlier this year to the release of Libyan general Najeem Almasri, now directly calls into question the Constitutional Court. Pending the highly likely conflict of attributions that the majority is about to raise on the crime of false information contested against the head of the cabinet of the Ministry of Justice, Giusi Bartolozzi, the Court of Appeal of Rome has raised a question of constitutional legitimacy on the role attributed to the Minister of Justice by the Italian law transposing the statute of the International Criminal Court (237/2012).

The order refers to the part of the legislation that provides that the Attorney General must wait for the opinion of the Minister of Justice before following up on the request for arrest formulated by the International Criminal Court. The Roman judges are essentially asking the Constitutional Court whether it would not be more correct for the interlocution between the Criminal Court and the Attorney General's Office to take place without the intermediation of the minister, hence of the government.

The disputed procedure

What is being challenged is that procedure for the application of a precautionary measure from the Criminal Court with three key steps:

1) Receipt of documents by the Minister of Justice, 'who is responsible for receiving and following up requests from the Court' (Article 2(1), Law No 237/2012);

(2) transmission of the acts by the Minister of Justice to the public prosecutor's office at the Court of Appeal in Rome ('the public prosecutor at the Court of Appeal in Rome, having received the acts (...)') Article 11(1))

(3) request of the public prosecutor to the Court of Appeal for the application of the precautionary measure.

Minister as 'organ of transit'

An entirely characteristic formulation, which excludes the autonomous intervention of the judicial police, in favour of a preventive role on the part of the Minister of Justice. Thesis espoused before Parliament by the minister himself Carlo Nordio, in his briefing of 5 February, in which, after emphasising the absolute novelty of the issue, he observed that from the wording of the law transposing the statute on the International Criminal Court "it is clear that the role of the minister is not simply that of a transit body for requests that arrive from the Court; he is not a paper-pusher, he is a political body that must meditate on the role of the Court and of the judicial police, but a political body that must be able to intervene in the matter".

What is now called into question is precisely the legal basis of this interpretation, which for the Court of Appeal in Rome risks being at odds with the principles of international law.