The complex machinery of the European extradition and its effects on the national procedures - Jordan Goulet

The Nations and their inhabitants are subject of the changing of the worldwide. Indeed, their relations and the criminality has evolved with the exchanges globalization. Among them, the news technologies have contributed to developed internationals offences. The cooperation between States becoming a necessity to struggle against the crimes involving the Law of several countries. For example, the drug trafficking involve several states or have effect in several states and then crimes are committed in international areas. That's why, the criminal jurisdiction of the states obtain competences wider. Furthermore this jurisdiction have often the possibility to try for crimes committed abroad. This competence become necessary for the evidences which are more often abroad.

To avoid that crimes aren't unpunished, the extradition process is becoming a mean to condemned an foreign criminal. The extradition is a proceedings where a State produce a request beside another State, to claim the transfer of a criminal to be judged or to enforce an award.

However, the extradition without agreements between States often is a failure because there is, generally, sovereignty conflicts. Therefore, it intervene, usually, the diplomatic channels to negotiate a possible understanding for an extradition. Sometimes a third party is involved to be the negotiator between the both countries concerned by the proceeding. This process may be useful when the diplomatic relations between States are blocked.

For instance, in 2013 concerning the extradition of Abou Qatada1 from the United Kingdom toward the Jordan, the proceedings is a failure because the English's jurisdiction refused because it won't be ensure that his judgment will respect the principle of equitably justice. While the government agree for the extradition for the main ground to avoid a dangerous terrorist on their terrorist. After several requests during ten years, the claims to extradited him always are refused. Thereafter, to improve the extradition procedure, it's counselled to contract bilateral or multilateral agreements between States.

The European background is a particular situation with the proximity of the Law and the soft Law between the western countries. They are favourable basis to the development agreements relating on the extradition. The modern extradition has operated in the last century through several bilateral agreements like these during the Second World War II by the Fascist Italian Government to judge state's enemies. However it was only, bilateral agreements because there wasn't a general treaty to organize the requests around of the extradition's topic.

Therefore, two tendencies are appeared within the Council of Europe, certain members would a reference text to propose a model for the European States to write their own bilateral agreements, whereas the others would a general multilateral convention. The latter was into force because traditionally, the conflicts around of the extradition's topic were resolve by bilateral agreements and then not enough efficient in its solution. Thus, the council of Europe has chosen a real innovation with multilateral agreements which was seen as a exceptional phenomenon in the matter of extradition.

That's why, 1957, the real cooperation began with the European Economic Community and the implementation of an important treaty established by the Council of Europe : European Convention on Extradition.

Nevertheless, the extradition proceedings produces it positive outcomes ?

The extradition proceedings has a legal framework very complex define by the the European convention on Extradition with mandatory conditions (I) and the effects which results of such process (II).

I The conditions for the extradition's procedure

The extradition is a complex method to avoid that a suspect escape of his judgment. Sometimes, the avoidance is allowed because there is particular situations. On one hand, it's necessary to establish the concept of the extradition procedure (A) and one the other hand the actions connected with the extradition procedure (B)

A The concept of the extradition procedure

The judicial relations between the States to judge a crime involving the international Law is based on several principles which is the framework of this process (1). However there are exceptions for the extradition process (2)

1 The Principles for the extradition process

The extradition procedure can be examined by two points of view : In a world framework or in an European framework. The both backgrounds implies an main aim which allow the avoidance of crimes unpunished, thereafter the extradition process is a mean to condemned an foreign criminal.

To begin a such proceeding, a State should produce a request of extradition explaining the motivations without clarify provisions. To conclude an extradition, usually, the worldwide states contract bilateral treaties2 or agreements before a request to set out the conditions around of a future claim. It's not mandatory but an agreement facilitate the extradition of a suspect person. For instance, 2011, a treaty relating on the extradition is concluded between France and Argentina. In the facts, Mario Sandoval will be soon extradited from France toward Argentina for crime against the humanity. Indeed, it has been concluded a treaty to this extradition procedure.

An extradition has a provision mandatory in all circumstance. The reciprocity of an incrimination for an offense is necessary to a valid extradition. That's mean, the offense should be blamed in the both countries concerned by the extradition proceeding.

Furthermore, the proceeding for an extradition have to be similar because the reciprocity in the international law is necessary if a country want benefit the same advantages that he could grant in the inverse situation in a perspective of mutual assistance and of mutual cooperation3.

However, it exists geographical areas more restricted such as the European Community which has created its own legal framework for the extradition proceeding. Thus, on December, the13th 1957, the council of Europe from Paris concluded the European Convention on the Extradition for a narrow judicial cooperation. With this act, the contracting parties undertake to be mutually engaged to extradited the individuals whose are pursued for an offense or looked to execute an award or a provisional measure by the judicial authorities of the ^party applicant. According to the the article 1 of the convention, the contracting parties have the obligation to accept a request for an extradition coming of an other member State. The article 2 state the conditions for an European extradition especially the rule of reciprocity and the transfer of evidences. The others articles establish procedural rules.

Thereafter, The international pact relating of the civil and political rights in 1966 protect the individuals against the intervention of States in the rights and the fundamental liberties, especially to struggle against the torture and the slavery. Those allow to ensure that with an extradition, the fundamental rights will be respected.

Finally, the additional protocols in the decades 1970 and 2010 have completed the first convention with the add of procedural rules and specifics articles concerning offenses such as the genocide or the crimes against the humanity.

Consequently, the extradition proceeding is subject at the States' will concerning their cooperation in judicial matter.

2 The exceptions for the extradition process

Restrictions for extradition are several, there are two types. The first one concerns the limitations inherent to the person and the second the limitations outside the person. First of all, concerning the limitations inherent to the person, according to the article 6 of the Convention on Extradition : ? Contracting parties have the right to refuse extradition of nationals ?. It is possible when the fugitive is so old or so young, or if his health is poor.

For instance, in the case where the criminal is affected by a degenerative disease, the extradition will not take place. Then, restrictions can also be connected with the crime for which extradition is requested. There is refusal of the request when it is a question of a political offense quoting to the article 3 of the Convention : ? Extradition is not granted for political offenses or when threat of persecution exists ?. It is the same case for fiscal offense quoting to the article 5, military offense according to the article 4 and double criminality. For the last one the rule is if a country has no ban against the blasphemy the extradition will not take place the law has to be mutual. The Convention also stipulates in its article 10, that there are periods of limitation where the extradition is not possible4. Thus if the crime took place there is too long a person can not be any more extradited. Besides, the criminal is only transferred for the crime for which he is extradited.

Secondly, concerning the limitations outside the person, if the Convention was not ratified in the country which makes the request of extradition, this last one will not be possible. Then according the European Convention on human rights, the extradition can not be made if, in the country which have made the request, human rights are not respected, as the right to life, prohibition of torture, right to a fair trial.

For instance, if Italian had still been fascist, its request to recover Cesare B. (in the Cesare’s case by the State’s Council of France, 2005, N° 273714) France could refuse5. Furthermore, to protect human rights it exists the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which stipulates in its article 3 : ? No State Party shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture… ?.

The aim is to avoid the person is endanger. If the requested State know that the fugitive can undergone the death penalty if he is extradited, this State does not have to make it. Finally, the extradition is not mandatory if it exists threat of persecution about the concerned person. The State shall protect her.

B The actions connected with the extradition procedure

The proceeding to judge a suspect living in another country that where he/she is incriminated, isn't an isolated stage because there are political implications in the field of the extradition (1), but also with the treatment of a such request by the nationals judicial jurisdictions (2)

1 The political implications in the field of the extradition

The extradition procedure is obviously a subject of the international law, Nevertheless, before to apply a such process, there is a stage of an diplomatic negotiation. It's necessary for the head of an country or of an particular ministry to establish diplomatic relations with the main mission to increase the cooperation. The conduct of diplomatic negotiation allow, in international relations field, to conclude agreements and treaties.

The treaty or the agreement6 can intervene before a request for an extradition when the states have goods internationals relations and often a similar judicial system which facilitate the application of an homogeneous Law. However, the diplomatic negotiations can be initiated during the trial or the investigation in a foreign country about an offense potentially make by native inhabitant of the litigant country. Thus, in the Florence Cassez's case in 20087 , she was judged guilty with an award of 96 years in a Mexican prison. The charges are the complicity of kidnappings, criminal conspiracy and detention of weapon. The problem was that the international relations between France and Mexico wasn't in favorable conditions to treat a such case. Then, the negotiation is essential because there isn't a treaty which establish a framework for the extradition for the both countries. But the President of the France in has tried to resolve during an international meeting, the consequence was a failure. Thereafter, the diplomatic negotiations can be a stage more important than the extradition procedure to treat the international offenses or criminals.

The extradition proceeding can be influenced by minor acts such as declarations in a national level like in the Cesare's case (N° 273714)8 in front of the State's Council of France in 2005. The Mitterrand President expresses himself by declaration on this case to explain that the extradition is allowed for the Italian nationals living durably in France when they are recognized guilty of terrorism actions. However the Council estimated that a such declaration wasn't binding for the French judicial system. It is only a statement of intention emitted by a political authority having no power to decide on an extradition.

In the same case, the litigant, Mr. Cesare, object the decree allowing his extradition in Italy because the France's behavior prohibited his transfer to enforce the award. Furthermore, the criminal is always considered as a foreigner in the French territory in spite of his numerous residence permits. That's why a request for the extradition is accepted in conformity with the international judicial cooperation, pursuant a decree emit by the prime minister.9

2 The treatment of an extradition proceedings by the nationals judicial jurisdictions

Generally when an extradition request is made toward a country, the latter can sometimes meet differences within its jurisdictions and within its powers to take the decision. Sometimes the executive power does not agree with the judiciary. It was the case in particular for the extradition request of Abou Qatada made in England by Jordan10 . Only the judiciary refused to extradite him because the risk that this criminal is not judged in his own country was too strong, whereas the executive power agreed to extradite him.

Finally the executive and judicial power agreed in 2005 to send back the fugitive in Jordan but it took 12 years, what is not normal. We can seen a similar situation in the Cesare’s affair, N°273714, the declarations made on April 20th, 1985 by the President of the French Republic, Mitterrand, confirmed the agreement for the Cesare’s extradition. 11

Nevertheless, the judiciary, that is the State’s Council, contradicted the declarations by the President which did not have force of law. However this differences between the powers within State take too much time and normally the requested State have to give quickly its decision for the extradition.

However, sometimes the nationals jurisdictions can agreed together, as in the Cesare’s affair. For example, in this case the fugitive has made an appeal to say the Italian's request was based on a political aim. Nevertheless, the offense of Cesare was neither a political offense according to the article 3 of the European Convention on Extradition nor a crime connected to the policy. So the both States agreed themselves that his appeal was not established.

Finally for this case the fugitive was extradited for murder by the State’s Council of France, while according to a decree of the French Prime Minister, Mr Jospin, the criminals pursued for this type of crime must not be transferred, whereas the extradition was valid only for the terrorists what is not the Cesare's case12

II The effects of the extradition procedure

The extradition's effects aren't provisions applied with homogeneity because the facts are very various, but since 1957, the European Community (now European Union) tried to developed a system simpler for the internationals crimes. On one hand, it's necessary to establish the implementation of the European Convention on Extradition (A) and on the other hand the limits of the European Convention on the extradition (B)

A The implementation of the European Convention on Extradition

The European Convention on Extradition allow an The deepening of the judicial cooperation by the European Convention on the Extradition facilitating the protection of Human rights(1) but it is possible to operate a renunciation of the guaranteed rights (2) depending on certain conditions.

1 The deepening of the judicial cooperation by the European Convention on the Extradition facilitating the protection of Human rights

The implementation of a Convention governing the extradition process within Europe allowed to connect all the member countries between them, to improve the European judicial cooperation. It also allow to assure that in this procedure human rights register in the European Convention of Human Rights (ECHR) are respected. If the rights are respected the cooperation is better. Thanks to the ECHR there is a ?protection on the rebound ?, this Convention has Influenced the contents of the European Convention on Extradition, so that according to the latter the extradition is impossible if it is a question of sending back a criminal in its country to undergo the death penalty. This principle comes directly from the European Convention of Human Rights. It is also impossible if the requesting country is an authoritarian State, this to ensure that the criminal will not inequitably be punished by virtue of the article 6 of the ECHR, which guaranteed the right to a fair trial. The extradition is prohibited toward States where there are the torture, the slavery and all which could damage the man physically or morally. It is too a principle guaranteed by the European Convention of Human Rights in its articles 2, 3, 4 and 5. For instance, 1994 France refused the Pascal Simbikangwa’s extradition from Rwanda because his life could be endanger in this country and it is against the European Convention of Human Rights. Thus the extradition is realized in accordance with this Convention and this allow to that the individuals lose their rights when they are not any more in their native country.

Therefore, the European Convention on Extradition also gives rights to member States. The Convention lets to States the faculty to complete its system. Besides, if the requests of extradition must be presented by the diplomatic way, it is possible that another way agreed by a direct arrangement between two or several countries. States are not forced. They can define the regime and the rules which they wish to apply regarding extradition and which by reciprocity will be applied to them. Finally the extradition can not take place if the requested State does not give its consent. As we observe it in the Cesare’s case, as long as France does not give its consent the Italian national is not sent back in his country as asks for the Italy13. Thus a State is not obliged to answer in the affirmative an extradition request because it too has rights.

2 The renunciation of the guaranteed rights by the European Convention on the Extradition

The rights protected by the European Convention on the Extradition are guaranteed but it's possible to give up to have them during certain stages of the proceeding. In principle, a judgment can be refused when the national is absentee for some circumstances or grounds. For instance, it's possible to benefits of the guaranteed rights when the person can't move for health ground or meteorological circumstances.

However, the fugitive can use his abstention to avoid to appear or to defend himself. In the Cesare's case, the main person concerned take advantage of an escape to substitute himself for the justice14. This escape confirm his guilt because it's a proof that he know the legal situation and the existence of the request of appearance.

In an similar situation a condemnation in absentia is a condemnation pronounced by a judge at the end of a trial. However, it's necessary the absence of the condemned person who is a fugitive. Nevertheless, there are conditions for that a such judgment is valid. The fugitive shall be Summoned and informed about his date of trial, after I have to receive a mandate by his lawyer and to be informed about his rights of appeal and to be re-judged by disputing the previous award. An extradition procedure allow to give the right to be re-judged, or to make an appeal

The procedure of the judgment in absentia is very different in international Law and in national Laws. For instance, in France the proceeding has been delete by the European Court on the Human rights, and then in case of a abstention of the accused, the lawyer can be still represented his clients without his participation with consequence to prohibit an appeal process. Whereas in Italy, with a recent reform, the condemned can be re-judged after a judgment in absentia.

B The limits of the European Convention on the extradition

All field of Law has principles, but are necessarily bound with exceptions. Thus, there is the character non-absolved from the convention on the extradition (1) and also the procedural inconveniences of the European extradition (2)

1 The character non-absolved from the convention on the extradition

The European Convention on the Extradition isn't apply of a manner mandatory in each situation concerning the international transfer of persons responsible of offenses. Thus, certain countries established particular measures to limit the control of the European Community with reserves and restrictions about of the application of the Convention. The article 6 of the Convention allow to refuse the extradition for the national, then reserves and restrictions are means to justify such measures.

For instance a State being the object of a request for an extradition, whereas the both countries concerned are in war each against the other, can allow to refuse the proceeding. The refusal can be motivated by a political strategy or again a political asylum when the country doesn't respect the Humans rights. In consideration that the State applicant respect the Human rights, if it is in a period where there is a political instability such as a provisional or a passing government can imply to refuse an extradition. Thus, at the end of the USSR in 1991, the Albania is managed by a provisional government. Therefore, the extradition procedure isn't possible in this situation because to state a request, a country doesn't know if the effective power is competent to receive a such claim. Furthermore, If the individual is guilty but that his life of his fundamental rights are threatened by the State applicant, the state where he living has the duty to protect him and to refuse the claim for political grounds.

Thereafter, the members countries of the Convention on the extradition can bring additions or precision. It often concern the procedural rules which are too vague to be apply directly by the parties. For example, the Belgium15 ask to specify, when a request made for it, the duration and the place where will be incarcerated a person soon extradited. Furthermore, a State can produce an addition about of the Convention. In 2012, in the fact, A French women16 is accused of having participated in conferences of a group forbidden in Spain but authorized in France, exceptionally France accepts the extradition to make her judgment in Spain. These extradition requests by the addition of a dispensation involve the character exceptional because the legal framework remains the European convention of 1957. The request expressed through an European Arrest Warrant guaranteeing an narrow international judicial cooperation Consequently the France accept to add a provision breaking with the main Convention because the conditions diplomatic was favorable for an entente.

2 The procedural inconveniences of the European extradition

The European Convention on the Extradition is an act which has greatly helped the developing of the cooperation in judicial matter to struggle against the international criminality and to punish the criminals living outside the country of their offenses. Furthermore, the Schengen space allow easier movements within Europe and an easier movement for the criminals. Then the judicial authority should be most reactive to prevent the increasing of the international crime.

However, the procedure for an extradition suffer from its own slowness. Without treaties or agreements, the process is still most longest because it doesn't exist previous arrangements to create the legal framework for a future extradition17. But, if there is a treaty or an agreement which organize the extradition procedure, the process will be apply easier. For instance in the Cesare's case, the request to extradited the criminal was from France toward Italy. And the both have already concluded a multilateral agreement which is the European Convention on Extradition of 195718. Then this countries have, with all the others members of the European Union, a legal framework establish facilitating the extradition proceeding.

Logically, a such legal framework will permit to reduce the duration of the extradition process, but in practice, it isn't too simple. The Cesare's case began in 1985 and the extradition was in 2005. Then, it was necessary a time of 20 years to conclude this extradition. The case was initialized by the three trials in Italy where the main actor is condemned in life imprisonment. This judgment were concluded in 5 years. But the condemned is a fugitive living in France. The Italian government has waited 10 years to request an extradition. Thus the will of the politics slow down the process. Finally the French judicial authorities have accepted quickly the extradition proceeding, in one year. This very long duration to settle a case concerning an extradition is legislative weakness which allow to a fugitive to avoid the justice, sometimes without provisional measures, with the same rights that the others citizens of the country.

In spite of the will to improve the cooperation in criminal matter, the duration to settle an extradition is long because the executive power and the judiciary power have to intervene simultaneously. The latter should condemned the suspect, establish an award and the conditions for its enforcement. Nevertheless, as the Cesare's case, the judgment is in absentia and without the suspect during the trial, then the executive power should presented a request with the France to initialized the extradition process. Therefore, the government can blocked an extradition for diplomatic grounds. Whereas the judicial power can blocked an extradition to apply strictly a Law or a Convention. Consequently the both could be harmful each other and wreck the efforts of the both powers in the international relations.

At last, the extradition procedure has known evolution since European Community of 1957 and its European Convention on the Extradition. That's means, originally, that the aim is to strengthen the judicial cooperation between European States and to struggle against the international criminality. Nevertheless, legislative weaknesses don't have reduce because the elaboration of the cooperation depends on the will of the members States. However the extradition process isn't a almighty mechanism because the extradited keep their fundamental rights in conformity with the essential convention such as European Convention of the Human Rights. Furthermore the States aren't totally submitted by the obligations of the European Convention on the Extradition because they can operate measures of restriction, reserve, addition or of precision.

To put it in a nutshell, the extradition procedure is an essential element in the judicial cooperation in criminal matter for the interests of States and of their inhabitants. However the process continue its development toward an cooperation always more narrow, thus It is important, necessary and indispensable.

Bibliography

– ? Une nouvelle législation belge d'entraide judiciaire internationale en matière pénale ?, page 333, Tom Vander Beken, Edition Academia, 2003, (text in french)

• ? L'extradition d'Aurore Martin menace la paix au Pays Basque ?, article, Le Monde, Catherine Gréze, 2012, (text in french)
• ? The principle of mutual recognition in cooperation in criminal matter ?, Suominen Annika, 2011

– ? Extradition treaties ?, Frederick Waymouth Gibbs, BiblioBazaar , 2009

• _ State's Council, Contentious Assembly, 18 march 2005, “Cesare. B”, N°273714
• _ “Affaire Cassez : le r?le de Sarkozy”, L'OBS jounal, 25 january 2013, Celine Rastello (text in french)

Sitography

– www.legifrance.gouv.fr (french)

– https://www.conseil-etat.fr/Decisions-Avis-Publications/Selection-contentieuse/Selection- des-decisions-faisant-l-objet-d-une-communication-particuliere/Assemblee-du- contentieux-Seance-du-11-mars-2005-Lecture-du-18-mars-2005 (french)

– https://www.rfi.fr/moyen-orient/20130327-extradition-abou-qatada-islamiste-jordanie- nouvel-echec-gouvernement-britannique/ (french)

Note de Bas de Page

1Abou Qatada is a personality very dangerous, however his judgment shall respected universal principles which avoid the errors and the protection for the life of all humans. Indeed, the extradition can't be accepted. https://www.rfi.fr/moyen-orient/20130327-extradition-abou-qatada-islamiste-jordanie- nouvel-echec-gouvernement-britannique/

2The basis of the extradition : ? Extradition treaties ?, Frederick Waymouth Gibbs, BiblioBazaar , 2009

3The mutual assistance and the mutual cooperation can be an informal process, nonetheless generally, the States conclude treaties to establish this principles. Initially, they are based on the good faith and the trust. ? The principle of mutual recognition in cooperation in criminal matter ?, Suominen Annika, 2011

4 The limits can be establish by conventions which state extradition process between two countries : ? The principle of mutual recognition in cooperation in criminal matter ?, Suominen Annika, 2011

5A concrete case about an extradition, especially with the possibility to refuse or accept a request : State's Council, Contentious Assembly, 18 march 2005, “Cesare. B”, N°273714

6 The treaty can be concluded a priori or a posteriori, allowing a flexibility for an extradition process : ? Extradition treaties ?, Frederick Waymouth Gibbs, BiblioBazaar , 2009

7 The effects of the diplomacy often is more important than the law itself “Affaire Cassez : le r?le de Sarkozy”, L'OBS jounal, 25 january 2013, Celine Rastello

8There is a a scale between the different sources of law to evaluate their impact in a legal framework. “Affaire Cassez : le r?le de Sarkozy”, L'OBS jounal, 25 january 2013, Celine Rastello

9The nationality of a criminal is, maybe, the most important information to initiate an extradition process: State's Council, Contentious Assembly, 18 march 2005, “Cesare. B”, N°273714

10The confusion between the official powers can slow done an extradition process https://www.rfi.fr/moyen-orient/20130327-extradition-abou-qatada-islamiste-jordanie-nouvel-echec-gouvernement-britannique/

11The confusion between the judicial power and the executive power can allow the appeal process. www.legifrance.gouv.fr

12It's necessary that the courts establish the facts with precision because it's can be the central key of an extradition State's Council, Contentious Assembly, 18 march 2005, “Cesare. B”, N°273714

13 The consent is the fundamental basis for an extradition, it's a question of sovereignty : ? The principle of mutual recognition in cooperation in criminal matter ?, Suominen Annika, 2011

14The possibility to escape to his judgment is a break which allow to avoid an extradition : State's Council, Contentious Assembly, 18 march 2005, “Cesare. B”, N°273714

15In a general legal framework, each country can state conditions, if these are in conformity with the principal convention : ? Une nouvelle législation belge d'entraide judiciaire internationale en matière pénale ?, page 333, Tom Vander Beken, Edition Academia, 2003,

16An extradition can have a cross-waiver when the diplomacy become more important than the law : ? L'extradition d'Aurore Martin menace la paix au Pays Basque ?, article, Le Monde, Catherine Gréze, 2012

17The treaties are the basis of the international relation, A way to simplify which is unused, will complicate the application of an effective international law : ? Extradition treaties ?, Frederick Waymouth Gibbs, BiblioBazaar , 2009

18The previous treaties for a particular subject expedite the trial and the extradition : ? Extradition treaties ?, Frederick Waymouth Gibbs, BiblioBazaar , 2009