FECL 45 (July 1996):

'FLEXIBLE' EU CONVENTION ON EXTRADITION

In the wake of the Florence Summit, Justice and Home Affairs (JHA) Ministers have reached political agreement on a final draft of the Convention on Extradition. Among other things, the Convention provides for the extradition by member states of their own nationals and of persons accused of involvement in a "criminal association". Moreover, the political motivation of a crime shall no longer prevent extradition.

Several member states previously opposed such far-reaching rules on constitutional grounds. The obstacle was overcome by including a multitude of provisions providing for "opt in" and "opt out" options in the Convention text. Flexible "optional features" legislation seems to be the Council’s new wonder-drug in preventing hesitating member states from blocking JHA cooperation.

 

Convention to be signed in September

At the Florence Summit the European Council requested the JHA Council to "do its utmost" to ensure the conclusion of the Convention by the end of June. According to the Council’s press service, however, the signature was delayed "for "purely procedural reasons". The Convention is now expected to be signed in September.

 

Extradition for acts not punishable in the requested member state

Extradition shall be accorded for all criminal offences punishable by at least 12 months imprisonment in the requesting state, and six months in the requested state.

Article 3 states that, if the crime for which extradition is being requested is a "conspiracy" or a "criminal association" according to the national legislation of the requesting state, extradition must be granted, if the conspiracy or criminal association named in the request aims at committing

- a major crime (or crimes) named in article 1 or 2 of the 1977 European Convention on the Fight against Terrorism; or

- any other criminal offence in connection with illegal drug trafficking and "other forms of organised crime", or other acts of violence.

The requested member state must extradite, even if "conspiracy" and involvement in a "criminal association" are no punishable acts under its national law (Article 3.1).

In assessing whether a conspiracy or an association is actually aimed at committing a crime named above, the requested state shall refer to "information in the arrest warrant or another decision to the same effect" (Article 3.2). This means, remarkably, that a person shall be extradited, even if he is not accused, or even suspected, of having himself committed any crime.

Member states which have difficulties in overcoming moral or constitutional scruples are offered the option of subscribing to a "softer" version of this rule. They may reserve the right not to apply Article 3.1 by special declaration (Article 3.3). But they shall determine that a behaviour contributing to the commission of a terrorist crime or a number of other serious violent crimes by a "group of persons acting with a common objective" shall entail extradition, "even when the person concerned is not himself taking part in actually carrying out the crime(s) in question" (Article 3.4). However, in contrast to Article 3.2, Article 3.4 requires that the person’s "participation" must be premeditated and based on his knowledge about the criminal group’s "objectives and general criminal activities" or the knowledge that the group in question "has the intention to commit the crime(s) in question".

 

Political motives no obstacle to extradition

Article 5.1 establishes the rule that a requested member state may not refuse an extradition on the grounds that the crime concerned is political or politically motivated. Again, member states with moral scruples are offered a "soft" option. They may declare that article 5.1 applies only to serious terrorist crimes named in the European Convention on Terrorism and to crimes that can be characterised as conspiracies or criminal associations (Article 5.2).

 

Extradition of own nationals

Article 7.1 establishes the extradition of their own nationals by member states as the rule. The "soft" alternative option is offered in Article 7.2: member states may declare that they do not - or only under specified conditions - permit the extradition of their nationals. Such a declaration is valid for a period of five years and can be renewed at the end of each period.

 

Statute-barred offences

Extradition may not be refused on the ground that an offence is statute-barred in the requested state.

 

"Rule of speciality" undermined

The 1957 European (Council of Europe) Convention on Extradition established the so-called "rule of speciality" which prohibits the prosecution of an extradited person for any offence committed prior to his surrender other than that for which he was extradited. The main exception to this rule allowed by the 1957 Convention is the express consent of the state which extradited a particular person, upon specific request of the state wishing to prosecute him. The new EU Convention on Extradition distinctly departs from the speciality rule in as it allows prosecution and punishment for offences other than those having effected the extradition, and without the consent of the requested state, when the acts concerned are not punishable by imprisonment or when the extradited person consents (Article 10.1). Article 11 offers an alternative option - this time for less scrupulous member states: they may declare at any time that they automatically and generally permit the prosecution and punishment of extradited person by the requesting state for any criminal offence not named in the extradition request. This amounts to the plain abolition of the rule of speciality. Only if the surrendering state signifies in a particular case that it opposes prosecution, is this automatic provision overridden.

 

Re-extradition to another member state

The 1957 Council of Europe Convention on Extradition prohibits the re-extradition by the requesting state of a person to a third state, unless this has been consented to by the requested state. The EU Convention departs even from this procedural safeguard. According to Article 12.1, in cases of re-extradition to a member state, the consent of the surrendering state is no longer required. Scrupulous member states may however notify by special declaration that they refuse re-extradition, unless the extradited person consents.

 

Entry into force of the Convention: fast-track option

The Convention enters into force when all member states of the EU (at the time the Convention was agreed by the Council) have ratified the text and issued their notification (containing their declarations regarding the various options) (Article 18.1-3). However, here too, an alternative option is offered to impatient member states. Any member state which has ratified the Convention may declare in its notification that it will apply the Convention immediately in its relations with other member states having made such a declaration.

 

Declarations in the annex to the Convention

According to a joint declaration of the member states, the Convention does not affect the right to asylum and member states’ application of the 1951 Geneva Convention on Refugees.

Denmark, Finland and Sweden declare that they are prepared to depart from their present legislation which prohibits the extradition not only of own nationals but also foreigners legally residing on their territory. Nationals from non-Nordic states will be extradited.

Greece declares that with regard to political crimes, its Constitution expressly prohibits the extradition of a foreigner persecuted because of his "fight for freedom" and draws a distinction between political crimes and so-called mixed-type crimes.

Portugal reserves the right to refuse extradition for crimes punishable by life imprisonment in the requesting state, unless the latter satisfactorily shows that the person concerned will not be sentenced to life imprisonment in the event of extradition.

The above declarations made in the annex to the Convention text, must be distinguished from the declarations member states can make on the various optional articles of the Convention in their notifications.

 

Competence of the European Court of Justice (ECJ) to be considered next year

The Convention says nothing about jurisdiction by the European Court of Justice. However, Anita Gradin, the EU-Commissioner in charge of JHA affairs, said at the end of June that agreement the question of a role for the ECJ will be reviewed in a year.

 

Sources: Convention on Extradition between Member States of the EU, final draft, Brussels, 15.7.96; 8724/96, restreint, Justpen 99 (All quotations are our translations from the Danish version); European Convention on Extradition, 13.12.1957, Council of Europe; Press Service of the EU Council, 30.7.96; see also FECL No.40: "K.4 Committee Draft Convention on Extradition" and No.44,pp.3-4.