K.4 COMMITTEE DRAFT CONVENTION ON EXTRADITION
In 1993 the Justice and Home Affairs (JHA) Council charged the K.4 Committee (established by Title VI of the Maastricht Treaty) with examining the prospects for easing and accelerating extradition procedures between EU member states. A first JHA Convention on facilitated extradition procedures was signed in March 1995, but it refers only to extraditions which are consented to by the subject. Now a further step is to be taken with a planned, more comprehensive, convention covering all extraditions. The following is a synopsis of a draft presented by the K.4 Committee's Steering Group III on 6 November 1995.
A major objective of the Draft JHA Convention is to enable extraditions between EU member states even where this is not permitted by the 1957 European Convention on Extradition (1957 ECEx). In the introductory statement to the Draft this objective is justified by reference to the common desire to improve criminal law cooperation between the member states and with the "trust" of the member states in the "structure and functioning of their respective legal systems and in the capacity of all member states to guarantee a fair procedure".
As the large number of reservations and alternative propositions of individual member states in the Draft shows, there is still some hesitation and disparity of views among member states with regard to sensitive issues such as the extradition of own nationals, the extradition of political offenders and the participation in a criminal organisation or conspiracy as grounds for extradition.
General pre-requirements for extradition
Agreement has been reached (within Steering Group III) as to the rule that member states must extradite even persons accused of minor offences punishable by a maximum of 12 months imprisonment in the requesting state, and a maximum of 6 months in the requested state (Article 2.1), and that an extradition may not be refused on the ground that the requested state provides another form of punishment (Article 2.2). As opposed to this, the 1957 ECEx limits extradition to offences punishable in both states by imprisonment for a maximum of at least 12 months.
According to Article 2.3 of the Draft, extradition must also be granted, if the acts on which the request is based amount to "conspiracy" or "participation in a criminal organisation" punishable only in the requesting state, provided the conspiracy or the criminal organisation is aimed at committing one or several extraditable offences (under Article 2.1). While five delegations (Belgium, the Netherlands, Spain, Italy and Portugal) accept this wording, the delegations of some member states expressed reservations on principle or favoured a "may" rather than a "must" provision. As opposed to this, Italy proposed an additional paragraph to the provision in its current wording, according to which the type of offence does not have to follow from the wording of the arrest warrant or the sentence (in the case of an existing conviction) entailing the extradition request, but from "other documents" presented by the requesting state.
Political offences
Draft Article 3.1 says that "no offence shall be considered a political offence". While the UK, Germany, Belgium and Italy agree to this proposition, some other members states want to retain the possibility of refusing an extradition if "the requested Party has substantial grounds for believing that a request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion, or that person's position may be prejudiced for any of these reasons" (Article 3.2 1957 ECEx). Both France and Greece have pointed out that extradition for political offences would breach their constitutions. France is now proposing a compromise formula that would consist in setting up a common list of all types of offences not considered as political by all member states.
Fiscal offences
Under the 1957 ECEx, extradition for offences in connection with taxes, duties, customs and exchange shall be granted only if the signatory states have so decided in respect of any such type of offence. The corresponding provision in the Draft JHA-Convention extends extradition even to acts corresponding to "similar punishable acts according to the law of the requested state" (Art.4.1) and that extradition shall not be refused on the ground that the law of the requested state does not provide for the same type of fiscal regulations as the law of the requesting state (Art. 4.2). However, any member state may issue a special declaration that it will extradite for acts amounting to offences in the field of consumer, value added and customs taxes (Art.4.3). As could be expected, Luxembourg is opposing this wording and wishes to limit extradition to "offences according to the law of the requested state" only.
Extradition of nationals
Under the 1957 ECEx, Article 6 the signatory states have the right to refuse extradition of their nationals. Article 5.1 of the Draft Convention moves away from this fundamental principle: "Extradition shall not be refused on the ground that the persons whose extradition is being requested is a national of the requested state within the meaning of Article 6 of the European Convention on Extradition". However, any member state can partly or totally opt out of this obligation for a limited period of time by special declaration. While the Netherlands have expressed reservations on the principle of the provision on the whole, Finland, Sweden and Greece could agree to its point 1 on condition that opt-out declarations are not limited by time.
Statute-barred offences
Article 10 of the 1957 ECEx prohibits extradition for offences statute-barred in either the requested or the requesting state. Under Article 6 of the Draft JHA Convention, extradition may not be refused on the ground that the prosecution or punishment of the person would be statute barred according to the law of the requested state, except for acts coming under its own competence of jurisdiction. There appears to be agreement among all member states on this provision.
Amnesty
Extradition shall not be granted for offences benefiting from an amnesty in the requested state provided this state was competent to prosecute the offence concerned.
Prosecution of persons for offences not mentioned in the extradition request
Article 14 of the 1957 ECEx establishes a guarantee that has often proved vital for extradited persons. Under the so-called "rule of speciality" an extradited person shall not be proceeded against or punished "for any offence committed prior to his surrender other than that for which he was extradited, nor shall he be for any other reasons restricted in his personal freedom". The main exception to this general rule allowed by the ECEx is the express consent of the state which extradited a particular person, upon specific request of the state wishing to prosecute him.
Article 8 of the Draft Convention crucially restricts this guarantee for the right of the individual. Extradited individuals may be prosecuted and/or punished for offences other than those having effected the extradition without the consent of the requested state,
- when the acts concerned are not punishable or not being punished by a liberty privative measure;
- when the individual concerned is subjected to punishment other than deprivation of liberty, "including a fine or a substitute measure, even if this may restrict his individual liberty";
- when the individual concerned expressly consents to prosecution and/or punishment for an offence not mentioned in the extradition request.
A number of delegations have issued reservations pending further examination.
Article 8a of the Draft Convention states that any member state may issue at any time a declaration according to which it will "automatically" consent to the non-application of the rule of speciality by all other member states having issued a similar declaration unless it expressly notifies otherwise with regard to a specific case.
The French delegation is opposed to this provision on the whole, and a number of other delegations have expressed reservations.
Re-extradition to another member state
Article 15 of the 1957 ECEx prohibits the re-extradition by the requesting state of a person to a third state, if this has not been consented by the requested state. Article 9 of the Draft JHA Convention says that this rule is not applicable between member states (i.e. that re-extradition shall take place) unless a member state has already refused an extradition request based on the same grounds as the re-extradition request.
No agreements appears to have been reached on this provision so far. It would seem that some delegations would prefer re-extradition to require the consent of the individual concerned.
Source: Entwurf eines Übereinkommens über die Verbesserung der Auslieferung zwischen den Mitgliedstaaten der Europäischen Union, K.4 Committee/Steering Group III, Brussels, 6.11.95, 11267/95, restricted, JUSTPEN 148; introductory remarks of the Steering Group III, 11160/95 JUSTPEN 144. All quotations are our translations of the German text.