Extradition and the European Arrest Warrant

By Vânia Costa Ramos

Lawyer

Chairperson of the European Criminal Lawyers Association (ECBA)

---

What do the cases of Augusto Pinochet, Carles Puigdemont and Julian Assange have in common?

They are all relatively notable cases in which the authorities of several states launched criminal prosecutions, but those targeted were on the territory of another state and were therefore the subject of extradition proceedings or a European arrest warrant. In all of them, to date, the process has ended up without extradition. However, this is a relatively rare situation nowadays. In fact, in many countries, such as Portugal, most extradition proceedings end with the surrender of the person concerned to the requesting state.

So what is extradition?

Extradition can be defined as the coercive transfer of a person from one jurisdiction to another, at the request of the latter, through a specific procedure and provided certain conditions are met, for the purpose of carrying out criminal proceedings or executing a sentence[1]. In this respect, there are no differences - at least from a practical perspective - between extradition and the European arrest warrant.

Why is extradition necessary?

Extradition is necessary because, under the general principles of public international law, in particular the prohibition of interference in the territory of another sovereign state, the executive jurisdiction of states is limited to their territory. In other words, if a state launches criminal proceedings against a person who is outside its territory, it cannot simply act through its security forces or police, entering the territory of the foreign state to arrest the person and bring them coercively to its territory (although this has already happened, as in the case of Adolf Eichmann or several people transported to the Guantanamo naval base under the US “extraordinary renditions” program in the aftermath of September 11, 2001). Therefore, in these situations, the prosecuting state has to make an extradition request to the “asylum” state, i.e. the state where the person is.

And when can extradition be granted?

As you know, criminal law is closely linked to state sovereignty, the ius puniendi being one of the essential characteristics of a sovereign state. Furthermore, the criminalization of conduct is a reflection of a community's order of values and worldview. For this reason, the granting of extradition always implies, to a certain extent, on the part of the requested state, a recognition of the sovereignty or authority of the other state and also of the worldview that the latter's criminal law reflects. Thus, traditionally, extradition was of an eminently political-administrative nature and, therefore, the decision to extradite would ultimately be up to the Executive (for example, the king), not always being a judicial process. In essence, it would ultimately be subject to a decision of political convenience, and could be refused simply because the sovereign was not interested in collaborating with the exercise of foreign sovereign powers.

Today, extradition has evolved to reduce the scope for intervention by the political or executive power in the decision to extradite. The European arrest warrant (introduced by Framework Decision 2002/584/JHA of 13 June 2002) is an example of an extradition (in many countries, such as ours, called “surrender”, because it is exempt from political-executive scrutiny) that is fully judicialized. Today, between European Union member states, the decision on whether to hand over a person to be prosecuted or to serve a sentence in another state is taken by a court, without the intervention of the executive power.

In the older treaties, extradition was only granted for a list of crimes expressly provided for (see, for example, the 1908 Convention between Portugal and the United States of America on the Extradition of Criminals). Today, at least in Europe, it is more common for extraditable offenses to be defined according to the applicable penalty, excluding offenses of a political or military nature (see, for example, the European Convention on Extradition of December 13, 1957, concluded within the framework of the Council of Europe, but open to ratification by third countries - South Africa, for example, is a State Party). In any case, a traditional principle of extradition is the principle of double criminality: the requesting state will only extradite someone for conduct that is also criminalized under its criminal law. This is one of the major differences between the so-called classic extradition and the European arrest warrant: in the latter, a list of 32 offenses (or, more accurately, areas of crime) was approved for which it was assumed that there would be a consensus on their criminal nature and that, therefore, as long as they were punishable in the issuing state by at least three years in prison, they would be exempt from double criminality control.

In many states, particularly those of a continental European nature, the extradition of nationals is prohibited (see, for example, Article 33(3) of the Constitution of the Portuguese Republic). However, this prohibition does not exist in most Anglo-Saxon countries (e.g. the USA or the UK). The European arrest warrant has brought about a real revolution in this area, since it has abolished nationality as a ground for refusing surrender between EU Member States. Currently, there is nothing to stop a Portuguese citizen from being handed over to the Kingdom of Spain or the Republic of Lithuania for criminal proceedings or the execution of a sentence. However, the European arrest warrant system allows the courts of EU Member States to refuse to surrender their national or a national of another Member State for the purpose of executing a sentence, when they take on the obligation to execute the sentence imposed in the other Member State. Likewise, in the case of a European arrest warrant for criminal proceedings, the courts may require an assurance that the other Member State, once the criminal proceedings have ended, will hand over the requested person to the Member State of his or her nationality or residence to serve the sentence.

Under no circumstances may extradition violate the public international law principle of non refoulement , according to which extradition (or expulsion) is prohibited where there is a risk of persecution, torture, inhuman treatment or any other violation of human rights on grounds of race, religion, nationality, social group or political opinion (cf. 1951 Convention Relating to the Status of Refugees and Article 33(6) of the Portuguese Constitution). Even in the context of the European arrest warrant, where it was initially stated that between EU Member States it was not possible to invoke grounds for refusal based on human rights violations, the Court of Justice of the European Union has come to recognize that in certain cases, namely those of systemic human rights violations due to inhuman and degrading conditions in the issuing State's prisons, the executing State may refuse surrender. This case law has been extended to other situations of human rights violations in recent years. Something that was to be expected, at least for some, given the case law of the European Court of Human Rights on extradition.

How does an extradition process begin?

Most of the time, at least in the states that give direct effect to requests for international police cooperation, the extradition process begins with an arrest under a “red notice” (the famous “red notice” issued by the INTERPOL General Secretariat).

After this arrest, the State seeking extradition must submit the extradition request with the necessary documentation. In order for extradition to be granted, the state where the person in question is located - the requested state (or, in the case of the European arrest warrant, the executing state) - examines the request made by the requesting state (or, in the case of the European arrest warrant, the issuing state), to check whether, in accordance with the applicable international instruments and domestic law (for example, in Portugal, in addition to the Constitution, Law no. 144/, 99 , 31. 12.99) is applicable. º 144/, 99, de 31.08; or Lei n.º 65/2003, de 23.08, for the European arrest warrant), extradition can be granted.

If the case is not between EU states, there will also be a political assessment phase, which is the responsibility of the executive. This normally takes place after the judicial process. But in Portugal the situation is different: the political decision is only taken before the judicial decision, which in my opinion is not a beneficial aspect.

Is the role of the lawyer important in the extradition process?

Extradition proceedings are very fast, complex, and involve someone's freedom and one of the most impactful measures we can think of: the removal of a person - who often has their center of life in the requested state, and doesn't even speak the language of the requesting state - and their coerced handing over to another state to be tried for crimes before a foreign court, according to different rules, with differing penalties, and with a prison system that is also sometimes completely different.

This is why assistance from qualified professionals is essential. Any lawyer who wants to work in this area needs to have relevant experience (there is no time to study complex matters within the time limits laid down in extradition law), knowledge of European and international law and the case law of international human rights courts and committees, a command of foreign languages, and be willing to work night and day.

For those who are just starting out in these matters, I recommend reading the handbook prepared by the European Criminal Bar Association (ECBA), which is completely free, available to download as an ebook, or accessible on your cell phone in its own format, written precisely for those who don't yet have much experience: “How to Defend a European Arrest Warrant Case - ECBA Handbook on the EAW for Defence Lawyers”.

[1] Miguel João Costa, Extradition Law - Reviewing Grounds for Refusal from the ClassicParadigm to Mutual Recognition and Beyond, 2019, p. 4.