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EXTRADITION AND SYSTEMS OF DELIVERIES

Juan Carlos da Silva

Judge

The High Court of Justice, Bilbao

Barcelona, June 2005©JuanCarlosdaSilva, 2005

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Extradition

The toolbox in the fight against crime: Principle of International Justice Principle of Universal Jurisdiction International Legal / Judicial co-operation International Criminal Codification

The oldest tool in the toolbox of international co-operation in the fight against –serious- crime

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Council of Europe on Extradition and Transfer 1957 Convention on Extradition 1975 Additional Protocol 1978 2nd Additional Protocol 1959 MLA Convention 1983 Conv on Transfer of Sentenced

Persons (1987 EU Agreement)

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European Union

1989 Agreement on Simplification and Modernisation of Methods of Transmitting Extradition Requests

1995 Conv on Simplified Extradition Procedure1996 Conv on Extradition2002 Council Framework Dec on Extradition Arrest

Warrant and Surrender Procedures2003 Council Dec on certain Provisions of 1995 and

1996 Convs

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Transfers different from Extradition Temporary transfers (A.11 1959 CoE MLA Conv)

Person in custody temporarily transferred to be heard as a witness

Grounds for refusal Transfer of sentenced persons (1983 CoE Conv)

Can be requested by either State Conditions, i.a.: six months at least still to

serve, consent of convict, double liability, agreement of both States

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General Framework

CoE Law on Extradition 1957 Convention on Extradition 1975 Additional Protocol 1978 2nd Additional Protocol

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1.- General Principle

No discretionary power to grant or refuse extradition

For offences covered by the Convention, i.e.: Those punished with severe penalties Other than political, military and fiscal Even those committed by nationals

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Political offences: A.3.2

It is forbidden to extradite If substantial grounds to believe Request for extradition for an ordinary criminal offence Has been made for the purpose of prosecuting or

punishing a person on account of race, religion, nationality or political opinion

Or that that person’s position may be prejudiced for any of these reasons

Independently of obligations under other treaties

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Political offences: 1997 CoE Convention on Terrorism 1.- Negative definition of terrorism

Acts that will never be regarded as political Acts that can be regarded as not being political

2.- If no extradition, obligation to submit the case to competent national authorities

3.- Settlement of conflicts friendly settlement arbitration

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Political offences: 2002 EU Decision on Terrorism

1.- Positive definition of Terrorism: effect, aim, object

2.- Other forms of terrorist criminality: Offences relating to a terrorist group Offences linked to terrorist activities Inciting, aiding or abetting, and attempting Liability of legal persons

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Political offences: 3 May 2005 CoE Conv. on the Prevention of Terrorism

Definition of “terrorism”: basic notion (A.1.1) any of the offences in one of the Treaties listed in

Appendix Other forms of terrorist activity:

Related offences: commitment to legislate Public provocation to commit (A.5) Recruitment for (A.6) Training for (A.7)

Ancillary offences (A.9) Liability of legal entities (A.10)

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Mamatkulov and Askarov v. Turkey (ECHR 4.02.2005): FACTS

Two Uzbek nationals arrested by Turkish police under an international arrest warrant and a request for extradition from Uzbekistan

Political offence defence: working for democratisation, political dissidents arrested and subject to torture, life at risk, no fair trial

ECHR: Rule 39 interim measures Turkey extradited after Uzbek assurances File a complaint for A.2, A.3, A.6.1, A.34 & A.41 Referred to Grand Chamber

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Mamatkulov and Askarov v. Turkey the LAW on A.2 (life) A.3 (torture)

1) right to control aliens unaffected by the Conv2) but extradition may give rise to a A.3 issue

liability if extradition=exposing to ill treatment3) therefore, obligation to asses conditions

in the requesting country against standards of A.34) because incompatible with “common heritage”

to grant extradition if substantial grounds for believing danger of torture or inhuman or degradating treatment

5) minimun level of severityassesment relative: depends on multiple circumstances

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Mamatkulov and Askarov v. Turkey the LAW on A.6.1 (fair trial)

1) proceedings in the extraditing State decisions regarding entry, stay and deportation do not concern A.6.1

2) proceedings in the requesting State risk of flagrant denial of justice has to be taken into consideration when deciding on

extradition enough evidence in the light of avaliable information

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Mamatkulov and Askarov v. Turkey the LAW on A.34 (access to ECHR)

1) Right of individual application One of the fundamental guarantees of the Conv system

of HR protection Unlike classic treaties, obligations which benefit from

“collective enforcement”

2) Undertaking not to hinder effective access Precludes any interference

3) Rule 39: power to indicate interim measures Failure to comply may hinder the effectiveness

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One last lesson not to forget from Mamatkulov and Askarov v. Turkey Although the 1957 Convention only comes into

application in cases between European countries All Parties to the EHRC must comply with it also

in the case of exercising their right to control aliens

As happens when deciding about an extradition according to a bilateral treaty with a country outside the European system of HR

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Fiscal offences: 2nd Additional Protocol Obligation to extradite if offence

Corresponds to an offence of the same nature under the law of the requested Party

Even if it is related to a tax, duty, custom or exchange regulation that does not exist in the requested Party

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2.- Grounds for refusal

Offences committed in the requested State Proceedings pending Non bis in idem* Immunity by lapse of time* Capital punishment (safe assurances given) Judgment in absentia Amnesty*

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Judgments in absentia: 2nd Add Protocol (A.3)

Extradition for the purpose of carrying out a sentence or a detention order imposed in absentia

Optional ground for refusal if Proceedings did not satisfy minimun rights of defence

Exception (extradition compulsory) if Assurance is given as to the right to retrial

Enforcement of decision if no opposition by convict Take proceedings if opposition

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3.- Other rules

Speciality (A.14)No reextradition (A.15)Provisional arrest (A.16)Conflicting requests: criteria

(A.17)

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Krombach v. France (ECHR 13.05.01) FACTS Stepdaughter of applicant found dead in Germany

under circumstances to be cleared Four decisions by German judiciary to take no

further action in the case, after investigative activity

Father lodged a criminal complaint for homicide in Paris: 689.1 Criminal Code (aliens who commit serious crime outside France against a French victim can be prosecuted under French Law)

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Krombach v. France (ECHR 13.05.01) FACTS Trial in absentia despite permission sought to be

represented by lawyers: 630 Criminal Code (representation for absent defendants prohibited)

Found guilty and sentenced to 15 years; also civil judgment (350,000 FF compensation awarded)

Proceedings in Germany for the enforcement of civil judgment: Federal Court refers to CJEC and dismisses

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Krombach v. France (ECHR 13.05.01) FACTS Extradition proceedings in Austria

Arrested by Feldkirch Regional Court pending the hearing of a request for his extradition

Released by Innsbruck Court of Appeal Relative estoppel per rem iudicatam: once the Courts in the

state which the offence had committed had decided not to prosecute, no detention is possible for the purposes of extradition

A.54 of the Conv implementing the Schengen Agreement incorporates non bis in idem principle, which precludes retrial in France after final discharge in Germany

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Krombach v. France (ECHR 13.05.01) the LAW Violation of A.6.1 in conjunction with A.6.3

Right to a fair hearing + right to defence through legal assistance

Violation of A.2 of Protocol No. 7 Right of the convicted person to review by a higher

tribunal A.636 French Code of Criminal Procedure precludes

appeals by persons convicted in absentia: it was impossible to appeal to the Court of Cassation

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Quinn v. France (ECHR 4.06.05)provisional arrest: FACTS Detained for alleged offences committed in France

on 1 August 1988 by Investigating Judge Release Order by Court of Appeal on 4 August

1989 at 9 a.m. Request for provisional arrest with a view to his

extradition to Switzerland on the same day at 5.30 p.m.

Placed in detention at 8 p.m., without being released until 10 July 1991 (almost 2 years)

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Quinn v. France (ECHR 4.06.05)provisional arrest: LAW Detention on 4 August 1989

Some delay is understandable 11 hours after decision ordering “forthwith release” (even

in the period of judicial vacation) is against A.5.1.c Detention with a view of extradition

Almost 2 years: unusually long; it is against A.5.1 Even in the case of proceedings pending in the requested

State (ECHR suggest national authorities could have taken other measures, specially when that detention is not deducted from the sentence imposed in France)

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4.- Procedure

Request Surrender of persons Handing over of property Law governing procedure Language Expenses

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1996 European Union Convention on Extradition Less grounds for refusal

Political offences Fiscal offences Offences committed by nationals Lapse of time Wider rule of speciality

Easier procedure Central Authorities Facsimile transmission

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The last step

2002 Council Framework Dec on Extradition Arrest Warrant and Surrender Procedures

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Thank you very much!

juancarlosdasilva@yahoo.com