Extradition Procedures Research Articles

European Union: The European Arrest Warrant and the quest for constitutional coherence

On May 3, 2007, the European Court of Justice (ECJ) delivered its judgment in the European Arrest Warrant case, 1 a much-anticipated decision intended to put an end to a confl ict ignited in 2005, when the Polish Constitutional Court declared unconstitutional a new legal institution designed to replace the existing extradition procedures among member states of the European Union (EU). 2 After the Polish decision, the German Constitutional Court had also taken a position, quickly followed by the Czech and Cypriot constitutional courts. 3

The European Arrest Warrant: Recent Developments

Some ten days after 11 September 2001, the European Council included the proposal for a European arrest warrant in a European action plan to combat terrorism. In this article, it is proposed to recall the origins of the European arrest warrant, to point to the problems which arise and will continue to arise from the imperfections of the Third Pillar; to consider the contribution made by the European arrest warrant to the principle of legality of extradition procedures; to consider the issue of respect for fundamental human rights; and to consider the recent very important decision of the Court of Justice in Case C-303/05 Advocaten voor de Wereld v Leden van de Ministerrad.

The European Arrest Warrant: Between Trust, Democracy and the Rule of Law: Introduction. The European Arrest Warrant: Extradition in Transition

The Framework Decision to establish the European Arrest Warrant (EAW) entered into force on 1 January 2004. Since the adoption of the Italian law on 22 April 2005 transposing the Decision, it has been operational throughout the European Union. In its evaluation report of January 2006, the European Commission welcomes the arrest warrant as an ‘overall success’, as it provides for an effective and swift surrender procedure whilst guaranteeing judicial control and the observation of fundamental rights. National evaluation reports, such as the 30th report of the House of Lords Select Committee on the European Union, show that the arrest warrant is widely used to secure the arrest and surrender across the Union. The European Arrest Warrant seems to have largely taken over traditional extradition procedures.

The Perils of the ‘Europeanisation’ of Extradition Procedures in the EU Mutuality, Fundamental Rights and Constitutional Guarantees

This article focuses on the main problems regarding the current application of EU extradition procedures in relation to the area of judicial cooperation in criminal matters. It introduces the ‘Europeanisation’ of extradition procedures through a discussion based on the continuity of the principle of mutual recognition from the EC Treaties to the EU Constitutional Treaty. The latest manifestation of this continuity is the introduction of the European Arrest Warrant (adopted on 13 June 2002) that is aimed at simplifying the extradition procedures for suspected criminals within the territory of the European Union by creating a positive list of criminal areas. The author discusses the innovations introduced by the Framework Decision on the European Arrest Warrant (abolition of the test of dual criminality) and then focuses on two main problem areas based on the reaction of certain Member States: i) the compatibility with constitutional guarantees, where the author focuses on the eagerness of the national courts to contest the constitutionality of the EU Arrest Warrant implementation laws for authorising the extradition of their own nationals; ii) the compatibility with Human Rights, where the author argues that the principle of mutual recognition is not adequate for adjudicating interstate criminal cases when it operates in isolation. The article then focuses upon the balance between procedural efficiency and civil liberties and proposes certain procedural and institutional checks that would assist in moving from the current embryonic stage of EU criminal law to its adolescence.

A Need for Transnational Non Bis in Idem Protection in International Human Rights Law

Although safeguards for the individual human right guarantees for protection against double jeopardy are strongly entrenched in international and domestic law as well as widely reflected in State practice, such protection is generally limited in scope and applicability to surrender or extradition procedures. Where criminal offenders face courts of a State after having been prosecuted and punished or acquitted by a court of another State, the absence of transnational non bis in idem protection constitutes a serious lacuna in international human rights law. Although legislative and judicial initiatives are being undertaken – notably under the aegis of the European Union – to remedy this lacuna, the international community must incontestably act upon this need for individuals' protection against abuses of power and breaches of due process through the amendment or complementing of the classical international human rights conventions.

The Practice of National and International Courts on Transnational Seizure: Is a Fair Balance between Human Rights and Accountability Possible?

In the absence of or in order to circumvent extradition procedures States have often resorted to transnational abduction or informal surrender to ensure that criminal suspects residing abroad are brought to justice. This article will consider the implications of these devises for the world order and individual human rights through an assessment of the point of view of domestic and international courts which dealt with the issue of transnational seizure. Particular attention will be paid to the recent and important decisions delivered by the US jurisdiction in the Alvarez-Mechein Case under the Alien Tort Claims Act, the European Court for Human Rights in the Öcalan Case and the International Tribunal for the former Yugoslavia in the Nikolic Case. The purpose is to determine whether the judicial practices under consideration could be deemed to attain a fair balance between accountability and the respect of fundamental human rights.

Democracy against Security: The Debates about Counterterrorism in the European Parliament, September 2001–June 2003

The counterterrorism policies elaborated in the countries of the European Union (EU) in the aftermath of September 11, 2001, have been characterized by a desire to strengthen the networks of international cooperation among law-enforcement agencies, intelligence services, and the judiciary, but also by the introduction of several exceptional measures adopted usually on a temporary although sometimes on a permanent basis. Relying on the assumption that some legal guarantees for civil rights and liberties are incompatible with an efficient fight against new terrorist threats, exceptional rules have been presented as absolutely necessary for the protection of European populations. The subsequent diffusion throughout the EU of a new model of governance expressing such exceptionalist measures has provoked considerable criticism both within established political institutions and in civil societies. This article aims to analyze the public debate generated on this issue at the EU level. It focuses specifically on the debates in the European parliament between the main supporters of the exceptionalism thesis and their rivals. It especially seeks to highlight the primary arguments advanced to justify or to discredit this thesis. For this purpose, the article relies on a thematic content analysis of the debates of the European parliament on combating terrorism from September 2001 up to June 2003. (1) The analysis covers the debates held on that issue in the course of seven sittings (September 5, 2001; September 19, 2001; November 28, 2001; February 6, 2002; April 9, 2002; October 23, 2002; and March 12, 2003), and the extraordinary formal sitting of September 12, 2001. The Debates Before September 11, 2001 The impact of the terrorist attacks of September 11, 2001, on EU counterterrorism policy cannot be fully understood unless we consider that, apart from the council decision of December 3, 1998, instructing Europol to deal with crimes related to terrorism, (2) the position of the European Union toward terrorism has been limited to a strictly political level. All EU institutions have constantly condemned terrorism, but the definition of a common counterterrorism policy or, at least, the definition of their role in combating terrorism had not been integrated into their political agenda. The persistence of various forms of terrorism in several EU countries (namely, Spain, France, and Greece), its resurgence in Italy, as well as its evolution in the international context, pushed the Committee on Citizens' Freedoms and Rights, Justice, and Home Affairs to prepare a report on the role of the European Union in combating terrorism in order to promote the creation of a common area of freedom, security, and justice. This report (A5-0273/2001) written by Mr. Watson and presented to the European deputies in the perspective of the adoption of a relevant recommendation during the sitting of September 5, 2001, calls on the council of ministers to establish common minimal laws and penalties, to abolish formal extradition procedures, to apply the principle of mutual recognition of criminal judgments, and to establish a European search-and-arrest warrant in the fight against terrorism. The Watson report gave rise to several reactions amid the European deputies and allows us, on the one hand, to examine the positions held before the 9/11 terrorist attacks with regard to the adoption of emergency rules in the name of the fight against terrorism and, on the other hand, to compare them with the ones expressed in the aftermath of 9/11. A major feature of the debate on terrorism prior to 9/11 is that, although some European deputies tackled the issue of the dangers that counterterrorist measures might imply for civil rights and freedoms in the member states, such dangers were treated as rather hypothetical and not of pressing concern. The relative lack of attention accorded to this issue is clearly demonstrated by the fact that it was addressed by only four speakers out of twenty-four (16. …

Pinochet: The Politics

Against the background of the Pinochet affair, the author considers that a new era of international politics is in the process of being created. The House of Lords’ ruling which has allowed extradition procedures against the former Chilean dictator, is understood as a formidable and groundbreaking decision in international law based on the defence of human rights against crimes committed by authoritarian and unlawful rulers. The decision taken under the European Convention on extradition and the setting up of a Permanent International Criminal Court in the summer of 1998 are, according to the author, signs that international law and international politics are moving in the direction of a universal acceptance that violators of human rights must bepunished. However, the author is also cautious about the tension between the new path opened to international politics and the old power politics based on the absolute and indivisible sovereignty of the state. Double standards will certainly prevail and powerful states, in particular the United States, are reluctant to accept that international law and international politics are in the process of change.

I. Extradition and the European Union

To assist effective legal co-operation in combating criminal activity, the Justice and Home Affairs Council of the European Union has recently concluded two new conventions to simplify and improve extradition procedures between member States of the European Union. In doing so, the Council set in motion a process whereby existing arrangements for extradition were examined with a view to making them more flexible. In 1995 the Council recommended that the convention on simplified extradition be adopted in order to fulfil the aim of efficiency in the field of criminal justice. Its aim was to speed up extradition in cases where persons consented to be extradited. However, after further discussion concerning other aspects of extradition the Council eventually recommended that member States adopt far more radical procedures. The 1996 convention relating to “involuntary” extradition between member States appears to bypass several procedures designed to offer a degree of protection for the fugitive offender. Traditionally, extradition procedures have sought to offer a balance between judicial co-operation in the fight against crime and protecting the fundamental rights of the individual, and these concerns are acknowledged within the preambles to both the new EU conventions. However, the new conventions make several alterations to what can be regarded as established extradition procedures. In this article we examine these new procedures and consider whether the balance has shifted too far in favour of law enforcement at the expense of fundamental legal protections.

Circumventing Extradition Procedures is an Abuse of Process

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British Extradition Law and Procedure Including Extradition between the United Kingdom and Foreign States, the Commonwealth and Dependent Countries and the Republic of Ireland, Vol. I. V. E. Hartley Booth. Alphen a/d Rijn: Sijthoff & Noordhoff, 1980. Pp. 351. U.S. $35.

British Extradition Law and Procedure Including Extradition between the United Kingdom and Foreign States, the Commonwealth and Dependent Countries and the Republic of Ireland, Vol. I. V. E. Hartley Booth. Alphen a/d Rijn: Sijthoff & Noordhoff, 1980. Pp. 351. U.S. $35.

To the Webster-Ashburton Treaty: A Study in Anglo-American Relations, 1783-1843 (review)

184CIVIL WAR HISTORY in the United States." In a chapter entitled "Hall and the American System," the author argues convincingly that Hall played a major role in the initial stages of the industrial revolution in the United States. The book is well researched and written and fully deserves the Frederick Jackson Turner award for the year's best book-length manuscript in American history which it received in 1977. William N. Still, Jr. East Carolina University To the Webster-Ashburton Treaty: A Study in Anglo-American Relations , 1783-1843. By Howard Jones. (Chapel Hill: The University of North Carolina Press, 1977. Pp. xx, 251. $15.95.) A controversial episode for over a hundred years, the Webster-Ashburton treaty has drawn inordinate scrutiny and criticism from contemporaries and scholars alike. No less than the dean of diplomatic historians, Samuel Flagg Bemis, once accused Daniel Webster of laundering British bribe money destined for Maine journalists (which the author denies) and winning a victory for Britain, while chauvinists in both nations called the agreement a sell out. Complicating a resolution of the Maine boundary dispute was a heritage of transatlantic fear and distrust exacerbated by domestic politics, the Caroline affair, the Creole incident and extradition procedures, the war of Maine "Red Shirts" and New Brunswick "Blue Noses" over the Aroostook, the Washington government's clumsy handling of the McLeod case, not to mention Lord Ashburton's low opinion of the "weak & timid & irresolute" Secretary of State and the American people, a "Mass of ungovernable and unmanageable anarchy" (p. 118). To resolve all the irritants threatening the Anglo-American relationship any treaty necessarily had to be a "package agreement." Drawing on copious research in British and American archives as well as a comprehensive bibliography, Professor Jones has written an absorbing, perhaps definitive, account of a complicated subject. The United States, especially Maine, he argues, had been the major obstacle to early solutions proposed by joint commissions and the King of the Netherlands, but, later, Ashburton nearly wrecked negotiations by unexpectedly adopting New Brunswick's demand for the entire Madawaska region. Clearly, both Great Britain and the United States stood to gain from a boundary settlement though the author believes that Washington secured a "position of strength" along the new border regardless of the long-cherished military route finally won by London. The final agreement incorporated a new northern boundary, a cruising convention for discouraging African slavers, and an extradition agreement to satisfy the Southern slavocracy. BOOK REVIEWS185 The author attributes the successful negotiation to several factors: Ashburton's willingness to back down on Madawaska when he realized that Maine would not yield the southern portion; John C. Calhoun 's crucial support in the Senate; fear of war with Great Britain; Webster's editorials; ignorance of iron ore deposits in the Mesabi and Vermilion Ranges of present Minnesota; adoit newspaper campaigns by both governments; and nimble usage of seemingly limitless varieties of eighteenth-century maps purporting to prove how the other side had been outfoxed (Jones's thorough discussion of the "red line" map controversy should quicken the pulse of any cartophile ). Although a vociferous minority in Britain and the United States denounced the treaty and its negotiators, their awkward opposition was overcome. Believing that the treaty not only "possibly prevented an Anglo-American conflict" (p. 138) but also improved the prospects of better Franco-British relations, a point which needs fuller exposition, Jones sees the negotiation as proof that "the strength of personal diplomacy still can override the seemingly irreversible elements of discord" (p. 180). But, he might have added, only when all parties desire peace and have grown weary of the subject . Gordon H. Warren Central Washington University Correspondence of James K. Polk, Volume IV, 1837-1838. Edited by Herbert Weaver and Wayne Cutler. (Nashville: Vanderbilt University Press, 1977. Pp. xxxvi, 692. $25.00.) It is always good to be able to report that a long-term venture in publishing the papers of an individual maintains, as it reaches midpoint , the high standards with which it began, in spite of changes in editorial direction and staff. Such is the case with the correspondence of James K. Polk. This volume marks the retirement of Herbert...

Harpers Ferry Armory and the New Technology: The Challenge of Change (review)

BOOK REVIEWS183 seen as a resolution from above, was the work of blacks themselves rather than the Union armies or President Lincoln and the Republican Congress. Of course Magdol does not make this express argument , but that is the implication of his casual employment of the concept of self-emancipation. Though an appealing idea, it is not supported by evidence. Magdol's book would have been strengthened by a more thoughtful analysis of this matter. Herman Belz University of Maryland Harpers Ferry Armory and the New Technology: The Challenge of Change. By Merritt Roe Smith. (Ithaca: Cornell University Press, 1977. Pp. 363. $17.50.) In recent years historians have devoted increasing attention to technological history and Harpers Ferry Armory and the New Technology is an outstanding addition to the growing list. President George Washington's decision to locate a government arsenal in what was essentially a small isolated rural community on the Potomac River was prompted primarily by regional considerations. Until the Civil War the Armory manufactured arms for the government. Professor Smith discusses the Armory in the context of the local community and region, and compares it with the Springfield (Mass.) Armory, the other major federal arms establishment in the antebellum period. Smith contrasts the "dynamism and devotion to progress" at Springfield to the negative reaction to technological change at Harpers Ferry. The traditional generalization is that "most Americans accepted and welcomed technological change with uncritical enthusiasm." The author clearly demonstrates that this was not true at Harpers Ferry as change was accepted reluctantly. This attitude prevailed in spite of the fact that the Armory had skilled personnel throughout the period and a flow of technical information from Springfield and elsewhere. Smith attributes this to their "lack of contact with the outside world." "In the end," he concludes, "the stamina of local culture is paramount in explaining why the Harpers Ferry Armory never really flourished as a center of technological innovation." Not surprisingly, the author also discovers that local interests considered community needs more important than national goals. Positions of authority at the Armory were tied to a "larger network" of political and economic influence in the community. Management and workers frequently resisted procedures and machines that would have increased efficiency and productivity. Finally, Smith credits John Hall, who established a rifle works adjacent to the Armory, with the first "fully interchangeable weapon 184CIVIL WAR HISTORY in the United States." In a chapter entitled "Hall and the American System," the author argues convincingly that Hall played a major role in the initial stages of the industrial revolution in the United States. The book is well researched and written and fully deserves the Frederick Jackson Turner award for the year's best book-length manuscript in American history which it received in 1977. William N. Still, Jr. East Carolina University To the Webster-Ashburton Treaty: A Study in Anglo-American Relations , 1783-1843. By Howard Jones. (Chapel Hill: The University of North Carolina Press, 1977. Pp. xx, 251. $15.95.) A controversial episode for over a hundred years, the Webster-Ashburton treaty has drawn inordinate scrutiny and criticism from contemporaries and scholars alike. No less than the dean of diplomatic historians, Samuel Flagg Bemis, once accused Daniel Webster of laundering British bribe money destined for Maine journalists (which the author denies) and winning a victory for Britain, while chauvinists in both nations called the agreement a sell out. Complicating a resolution of the Maine boundary dispute was a heritage of transatlantic fear and distrust exacerbated by domestic politics, the Caroline affair, the Creole incident and extradition procedures, the war of Maine "Red Shirts" and New Brunswick "Blue Noses" over the Aroostook, the Washington government's clumsy handling of the McLeod case, not to mention Lord Ashburton's low opinion of the "weak & timid & irresolute" Secretary of State and the American people, a "Mass of ungovernable and unmanageable anarchy" (p. 118). To resolve all the irritants threatening the Anglo-American relationship any treaty necessarily had to be a "package agreement." Drawing on copious research in British and American archives as well as a comprehensive bibliography, Professor Jones has written an absorbing, perhaps definitive, account of a complicated subject. The United States, especially...

Re Argoud

Jurisdiction — In general — Territorial — Irregular apprehension — Kidnapping of French national in West Germany — Arrest on French territory — Trial for political offences — Whether French courts have jurisdiction — Whether jurisdiction dependent on fulfilling formal extradition procedures — The law of France.

Regina v. Gagnon.

Extradition — Procedure of — Irregularity of Procedure in State from which Extradition Sought — Whether Person to be Extradited Entitled to Rely on Irregularity when Tried in Requesting State — Waiver of Extradition Procedure by Person to be Extradited — Effect of — The Law of CanadaExtradition — Conditions of — Necessity for Formal Request for Extradition — Irregularity of Procedure in State from which Extradition Sought — Whether Person to be Extradited Entitled to Rely on Irregularity when Tried in Requesting State — Waiver of Extradition Procedure by Person to be Extradition — Effect of — Principle of Specialty — Whether Principle of Specialty Applies in Absence of Formal Extradition — The Law of Canada.

Habeas Corpus in Extradition Proceedings

The basic provision underlying extradition is found in Article IV, ? 2, cl. 2 of the Federal Constitution which provides, A person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall, on the demand of the executive Authority of the State from which he fled, be delivered up, to the State having Jurisdiction of the Crime. Obviously the provision is not self-executory, and the United States Supreme Court in Kentucky v. Dennison' held that if the governor of the asylum state has a disinclination toward carrying out the obligation placed on him by the Constitution, there is no method by which he may be compelled to do so. But the case is exceptional where the governor of an asylum state declines to grant the request for extradition. State procedure pertaining to extradition is largely governed by the Uniform Criminal Extradition Act which is in force in thirty-five states. Typical extradition procedure may best be summarized by a short resume of the Act. Application for issuance of a requisition for extradition is presented to the governor of the demanding state by the prosecuting attorney who, in the application, states the name of the one charged with the crime, the crime charged, the circumstances of its commission, and the state in which the accused is believed to be. Similar provision is made for the application for a requisition to extradite an escapee from a penal or other such institution. The Act also provides that the application be verified by affidavit and that certain papers such as certified copies of the indictment

In re Tirptiz.

Extradition — Principle of Identity of Extradition and Prosecution — Effect of Waiver by Accused of Formalities of Extradition Procedure.

Political Offenses in the Law and Practice of Extradition

Since the middle of the 18th century the practice of extradition has gradually developed until today there are some 350 extradition conventions, practically all bilateral in nature, and extradition laws in twelve or more states. These conventions and laws regulate the various phases of extradition procedure, and, in most instances, contain an article concerning political offenses. This circumstance, combined with the fact that political offenders are numerous, makes the problem of political offenders in extradition one of current importance.