EXTRADITION AND SYSTEMS OF DELIVERIES

EXTRADITION AND SYSTEMS OF DELIVERIES Juan Carlos da Silva Judge The High Court of Justice, Bilbao Barcelona, June 2005 ©JuanCarlosdaSilva, 2005

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

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)

European Union 1989 Agreement on Simplification and Modernisation of Methods of Transmitting Extradition Requests 1995 Conv on Simplified Extradition Procedure 1996 Conv on Extradition 2002 Council Framework Dec on Extradition Arrest Warrant and Surrender Procedures 2003 Council Dec on certain Provisions of 1995 and 1996 Convs

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

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

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

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

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

Political offences: 2002 EU Decision on Terrorism • 1.- Positivedefinition 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

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)

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

Mamatkulov and Askarov v. Turkeythe LAW on A.2 (life) A.3 (torture) • right to control aliens unaffected by the Conv • but extradition may give rise to a A.3 issue liability if extradition=exposing to ill treatment • therefore, obligation to asses conditions in the requesting country against standards of A.3 • because incompatible with “common heritage” to grant extradition if substantial grounds for believing danger of torture or inhuman or degradating treatment • minimun level of severity assesment relative: depends on multiple circumstances

Mamatkulov and Askarov v. Turkeythe 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

Mamatkulov and Askarov v. Turkeythe 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

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

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

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*

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

3.- Other rules • Speciality (A.14) • No reextradition (A.15) • Provisional arrest (A.16) • Conflicting requests: criteria (A.17)

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

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

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

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

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)

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)

4.- Procedure • Request • Surrender of persons • Handing over of property • Law governing procedure • Language • Expenses

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

The last step • 2002 Council Framework Dec on Extradition Arrest Warrant and Surrender Procedures

Thank you very much! juancarlosdasilva@yahoo.com

EXTRADITION AND SYSTEMS OF DELIVERIES