Trends and challenges in extradition law
Published in the Hungarian Lawyers’ Journal (2020 issues: 3-4)
Globalization and the internationalization of criminal activities have led to the conclusion of various international criminal law conventions from a substantive law perspective. These primarily provide that each of the States Parties is obliged to prosecute certain conduct which is particularly dangerous to society or the international community.
However, international crime and the interoperability of borders have also led to significant procedural changes in the extradition system, to the extent that extradition in the traditional sense is no longer the rule between certain States, but rather a surrender procedure.
The purpose of this article is to present some of the institutions of extradition law, some of the trends in extradition law, and to draw attention to what needs to be done in a changing world and legal environment to ensure that human rights are not undermined in the process of ‘automating’ extradition law.
Table of Contents
Sources of extradition law
Extradition law has been developing since the end of the 19th century. This is when the first bilateral extradition treaties were concluded between states. Extradition existed before that, of course, but not in a normative legal framework, but as a kind of customary law.
Since then, bilateral extradition treaties have been replaced – perhaps one could say as a result of globalisation – by multilateral extradition treaties. However, the importance of extradition conventions in extradition law is not absolute. Although many states can still only execute extradition requests on the basis of a convention (e.g. USA, Brazil), an increasing number of states (including Hungary) can do so not only on the basis of a convention but also on the basis of reciprocity.
With regard to multilateral international conventions, the European (Council of Europe) Extradition Convention signed in Paris on 13 December 1957 is of particular importance for Hungary, which was promulgated by Act XVIII of 1994 with its additional protocols. In addition to the extradition conventions, there are a number of thematic conventions, bilateral or multilateral, which deal with extradition issues.
From the United Nations Convention against Torture to the Hague Convention on hijacking and the Geneva Conventions on humanitarian rights, many conventions contain the rule ‘aut dedere aut judicare’ (extradite or adjudicate). This principle has not, however, become a general obligation for States in extradition law, but only applies to certain offences.
Conventions on extradition may even be contradictory. In this respect, for example, the Council of Europe Convention mentioned above provides that its scope prevails over that of any bilateral convention. In other cases, the rule of the Vienna Convention on International Conventions that the scope of the later convention prevails over the scope of the earlier one applies.
It is important to note, however, that the principle of temporality does not govern any conflict between extradition conventions and human rights conventions and international instruments. In this case, the subject-matter is different. International human rights law is part of the international ius cogens, which means that any legal rule contrary to it is invalid. This can be deduced from the UN Charter, Articles 55 and 56 of which state that human rights must be respected. But it is underpinned by Article 103 of the Charter of the United Nations, which states that in the event of conflict between the Charter and other international legal obligations, the Charter shall prevail. To sum up, there is no extradition treaty that can be applied to the detriment of human rights.
The extradition procedure
The procedural aspects of extradition are not regulated by international conventions. The internal law of each State determines how extradition is to be carried out, whether it is a matter of requesting extradition or of carrying it out.
Generally speaking, the most common system is the one in force in Hungary. According to this system, extradition requests are received by the Minister of Justice. There is then a two-stage judicial procedure in which the court decides whether the legal conditions for extradition are met and, of course, decides on issues such as whether to make an extradition arrest or to apply criminal supervision.
If the court ultimately finds that the legal conditions for extradition are not met, the Minister of Justice is obliged to refuse extradition on this ground. If, on the other hand, the conditions are met, the Minister of Justice has the discretion to decide whether or not to extradite. As this is a political decision, there is no right of appeal and accordingly no reasoned decision.
The procedure for executing European Arrest Warrants is very different. The most important difference is the elimination of the political, i.e. ministerial, level. In this procedure, the ministry only receives and transmits the arrest warrants, it has no right of decision, and all relevant issues are decided by the judicial authorities, in Hungary by the court.
There is also a less formalised version of extradition, the simplified extradition. In Europe, this was in operation from 1995 until the introduction of the European Arrest Warrant in 2004. The idea was that in certain cases it is in the interest of the suspect to be extradited as soon as possible (for example, because he does not have to languish in a foreign country’s prison without being able to defend himself).
Anglo-Saxon and continental tradition
As in all areas of law, the Anglo-Saxon and Continental traditions differ in extradition law. Continental jurisdictions have traditionally escaped from extraditing their own nationals. However, this tradition is nowadays fading considerably. In the case of Hungary, for example, it has been possible to extradite a Hungarian citizen under certain conditions since 1 January 2017.
And in the Anglo-Saxon legal system, it is also a specific tradition that there is some level of evidentiary procedure as to whether the extradition request is at some level justified. What is alien to continental law is that, in the continental legal system, the facts as stated by the state seeking extradition were essentially examined, regardless of what evidence there was to support them.
Offences of Extradition
In the early days, the extradition conventions contained a list, a catalog, of offences for which extradition could be granted. This system is now obsolete. Nowadays, States generally link the concept of extradition offences to the offence. Under Hungarian law, extradition for the purpose of criminal proceedings is possible if the offence for which extradition is requested is punishable under both Hungarian law and the law of the requesting state by a custodial sentence of at least one year; and for the purpose of executing a custodial sentence or a measure involving deprivation of liberty, if the sentence or the remaining enforceable part of the measure exceeds six months. It can be concluded that this category covers the vast majority of offences.
Nowadays, there is a tendency towards a negative definition, i.e. the offences for which extradition is not possible. These offences are typically political and military offences, as opposed to so-called public offences.
Dual criminality and specificity
The principle of dual criminality means that extradition can be granted if the act is a criminal offence under the law of both the requesting and the requested State. The principle of specificity means that the extradited person can only be prosecuted in the requesting State for the offence for which extradition is requested and cannot be extradited to a third country, subject to certain exceptions. One such exception is where the person concerned does not leave the territory of the requesting State for a certain period of time (forty-five days under Hungarian law) after his or her release or returns to it at a later date.
Both the principle of double criminality and the principle of specificity are in the background. The European Arrest Warrant, which operates between EU Member States, does not allow double criminality to be applied to so-called cataloged offences, and the list of these offences, the ‘catalog’, covers a large proportion of offences. The right to speciality can be waived by the accused. The question is, of course, why he would do so, since it would not be of any advantage to him.
Grounds for refusal in general
For a defense lawyer, the possible reasons for refusing extradition are of course the ones that come to the fore. The grounds for refusing extradition may be those relating to the offence, the penalty envisaged or the person who is to be extradited.
Political offences
It has already been mentioned that extradition may be refused or even refused if it relates to a political offence. This rule was inspired by the spirit of liberalism, in order to protect from political persecution those who fight against tyranny in a country. It is striking that although the above-mentioned Paris Convention on Extradition and even Act XXXVIII of 1996 on International Mutual Assistance in Criminal Matters use the term „political offence”, Hungarian law does not define what constitutes a political offence. In the absence of such a definition, we can risk that the concept of political offence is not defined in the Hungarian Criminal Code. In the absence of such a definition, it is unlikely that the term political offence is to be understood as a crime against the state as defined in Chapter XXIV of the Criminal Code.
An exception to the rule on political offences is the so-called „attentat clause”, according to which an assassination attempt against a head of state cannot be considered a political offence and therefore does not constitute an obstacle to extradition. This is also known in some places as the ‘Belgian clause’, since in 1856 a Belgian amendment to the law made it possible for those who attempted to assassinate the French Emperor Napoleon III to be extradited after fleeing to Belgium.
The general wording of the Hungarian Act on Mutual Legal Assistance on this point is rather vague. According to this, it is not considered a political offence if, when committed, the public nature of the offence predominates over the political one, taking into account all the circumstances, such as the aim pursued by the offence, the motive for the offence, the method of commission, the means used or envisaged. However, it is helpful to note that the public nature of the offence of intentional homicide, or of an offence involving intentional homicide, is always predominant over the political.
Discrimination clause
More interesting, however, is the principle that public offences may also be quasi-political offences if, under the CoE Convention on Extradition, there are reasonable grounds to believe that an extradition request for a public offence has been made with a view to prosecuting or punishing a person on account of his race, religion or nationality or political opinion, or that the situation of that person is aggravated for any of these reasons. This rule is the so-called discrimination clause. A typical example is when, following a political regime change in a country, former managers of state-owned companies or banks are prosecuted for economic crimes for political reasons.
It is interesting that mutual trust between EU Member States did not prevent the legislator from including this principle in the preamble of the Framework Decision on the European Arrest Warrant, taking into account the possibility of political persecution in the form of criminal proceedings even in these States.
Non inquiry
However, the discretionary clause is rarely used. Under the principle of non-inquiry in the Anglo-Saxon legal system, courts are expressly reluctant to criticise the legal system of another state. As mentioned above, extradition in the Anglo-Saxon legal system has traditionally been granted only on the basis of an extradition treaty. And if the two states have concluded an extradition treaty, it means that they have a mutual trust in each other’s legal systems, which makes it unnecessary to reassess this in each extradition case.
Extradition of own nationals
Extradition of own nationals is also an interesting issue among the grounds for refusal. This was first broken in Hungary by the European Arrest Warrant, which made it possible for the first time for a Hungarian court to extradite a Hungarian citizen to another state for the purpose of prosecution or execution of a sentence.
The other major innovation of the EAW was that it removed the discretionary power of the Minister of Justice and placed the decision on extradition (or, more correctly, surrender in the terminology of the EAW) entirely in the hands of the court.
The extradition of Hungarian nationals is now possible in respect of third countries, with the guarantee that the person requested to be extradited must be returned to serve the sentence.
Ne bis in idem
The ground for refusing extradition is the principle of ne bis in idem . According to this principle, extradition cannot be granted if the offence has already been finally disposed of. It is interesting to note that the rules on arrest warrants in the EU Member States are also very different from those on extradition in third countries.
The grounds for refusing to issue a European arrest warrant exist if, in another Member State , a decision has already been taken against the suspect in respect of the offence on the basis of which the European arrest warrant was issued, which constitutes an obstacle to the initiation of criminal proceedings, or on the basis of which the sentence has already been served, is being served or cannot be served under the law of the Member State which has issued the final judgment.
On the other hand, extradition is not possible under the Hungarian Act on Mutual Legal Assistance. If a Hungarian court (i.e. not a court of another Member State) has given final judgment on the extraditionable offence. However, the European Court of Justice’s judgment in the Petruhhin case takes the edge off this distinction. [Case C-182/15] According to this judgment, it is not in itself contrary to EU law for nationals of a Member State not to be extradited to a third country under the law of that Member State, whereas nationals of other EU Member States may be. However, before extraditing a national of another EU Member State to a third country, the requested EU Member State is obliged to ask the State of nationality of the person to be extradited whether it intends to issue an EU arrest warrant for him or her.
Limitation and pardon
The expiry of the statute of limitations is also an obstacle to extradition. The principle of dual criminality applies here too, in that the court of the requested State is obliged to examine whether the statute of limitations has run, whether in the requesting State or in the requested State. From this
the extradition request must therefore be accompanied by an integral part of the legislation and, where applicable, the judicial practice on limitation periods.
Extradition requests or European Arrest Warrants issued by Hungary always contain, for example, a reference to a Decision of the Hungarian Supreme Court no. 1/2005 about the interruption of the limitation period for European Arrest Warrants or International Arrest Warrants issued after the issuance of a warrant of arrest for domestic wanted persons. However, the international arrest warrant and the European arrest warrant are lumped together for the purposes of interrupting the extradition period, i.e. if they are issued at different times, the later one does not interrupt the limitation period.
Extradition must also be refused if the person requested to be extradited has been pardoned or is excluded from serving the sentence imposed on him.
Death penalty and life imprisonment
A reason for refusal that often arises in practice may be that the person requested to be extradited would be liable to the death penalty or to life imprisonment. These grounds for refusal can be avoided, however, by the State requesting extradition giving an assurance that such a sentence will not be imposed or, if imposed by the court, will not be carried out.
An interesting example of this was the case of the Porsche killer in 1990, who fled to France to enter the Foreign Legion after a cold-blooded murder that shocked the whole country, but was captured by the authorities there.
However, the French authorities were reluctant to extradite him to Hungary because of the risk that he would be sentenced to death. They therefore asked for assurances, which the Hungarian Minister of Justice was of course unable to give, as he was in no position to influence the decision of the independent court.
In this situation, at the initiative of the Minister for Justice, the President of the Republic issued an assurance that, if the court were to impose the death penalty, he would grant clemency. The obstacle to extradition was thus removed. The Porsche killer was eventually sentenced to life imprisonment in Hungary. I will return to the institution of surrender in more detail later.
Risk of torture or inhuman treatment
Article 3 of the European Convention for the Protection of All Persons from Enforced Disappearance (ECHR) (promulgated in Hungary by Decree-Law No. 3 of 1988) provides that no State Party shall be obliged to expel, return or extradite a person to another State where there are substantial grounds for believing that there is a risk that he or she would be subjected to torture.
In deciding whether such reasons exist, the competent authorities must take into account all relevant aspects of the case, including, where relevant, the existence of systematic, serious, flagrant or mass violations of human rights in the State concerned. It can therefore be concluded that this is also a non-refoulement rule.
The prohibition of torture and inhuman treatment is, of course, also enshrined in the ECHR, among other human rights conventions. It is part of the international jus cogens , which means that it also applies to States which are not yet parties to the Convention, and that no derogation is tolerated, in any circumstances, for example in the event of armed conflict or even in the event of an emergency threatening the security of the State, even if the person concerned is acting in a manner which is not in conformity with the Convention. Even the anti-terrorism conventions stress that they cannot be interpreted as imposing an extradition obligation on any State when a person is in danger of being subjected to torture or inhuman treatment
In the case of a risk of torture or inhuman treatment in extradition law, as in the case of a risk of the death penalty, the extraditing State must be given adequate guarantees that these circumstances will not arise in the case of the person to be extradited.
A landmark case on both the death penalty and torture and ill-treatment is Soering v. United Kingdom (1989), where the risk of the death penalty and the risk of prolonged insecure torture on „death row” were identified by the European Court of Human Rights as a bar to extradition.
Human rights general clause
In addition to the death penalty and life imprisonment, the Hungarian Act on Mutual Legal Assistance provides for the protection of human rights as a general rule. Extradition may be subject to adequate safeguards and, in the absence of adequate safeguards, extradition may be refused if it is presumed that the proceedings abroad, the expected sentence or its execution are not in accordance with the provisions and principles of the Fundamental Law and international law on the protection of human rights.
Extradition of refugees
The right of extradition and the right of asylum are interlinked in several ways. It is often the case that a person recognised as a refugee is requested to be extradited, or that the person requested to be extradited makes an application for asylum after being informed that he or she is being requested to be extradited.
It is also not uncommon for circumstances to come to light in the context of the extradition procedure which subsequently affect an asylum right already obtained, bearing in mind that Article 1F of the 1951 Geneva Convention relating to the Status of Refugees provides that the provisions of the Convention do not apply to a person who is reasonably believed to have committed various serious non-political crimes.
In any event, in examining the relationship between the right of asylum and extradition, it should be noted that the cornerstone of the right of asylum, the principle of non-refoulement , is also an absolute prohibition in extradition law. According to Article 33 of the above Convention, a refugee or asylum seeker may not be returned („refouler”) to a country where his life or freedom would be threatened on racial or religious grounds, on grounds of his nationality, or because he belongs to a particular social group or holds certain political opinions. This principle protects not only refugees who are recognised as such under procedural law, but also any person who is a refugee within the meaning of Article 33(1) but has not yet been recognised as such, i.e. asylum seekers.
An exception to this principle is Article 33(2), which provides that this benefit is not granted to a refugee who is reasonably believed to be a danger to the security of the country in whose territory he is or who, having been convicted of a particularly serious crime, constitutes a danger to the population of that country.
Unfortunately, in extradition cases, it is very often the case that recognition as a refugee is refused on the basis of the above exceptions, simply because a foreign state requests his or her extradition. In my view, the presumption of innocence should also apply in this case, which would allow these exceptions to be invoked only in the case of a person who has been convicted by final judgment (i.e. where extradition is requested not for the purpose of criminal proceedings but for the execution of a sentence). On the other hand, the need and proportionality test should be applied in any event. Both Article 33 and Article 1(F) refer to a serious criminal offence, so the seriousness of the offence must be considered on a case-by-case basis.
According to the Geneva Convention, an exception to the principle of non-refoulement is therefore made where the refugee or asylum seeker constitutes a serious threat to the security of the country or its population. However, even this exception does not mean that the person can be returned to any country where there is a risk of torture or inhuman or degrading treatment. This is contrary to international ius cogens.
As regards the interplay between refugee law and extradition law, in my view it is necessary to clarify, not only in general, but also in Hungarian law, which human rights concerns can be raised in the procedure for international protection, i.e. for recognition as a refugee or as a recipient, and which in the traditional extradition procedure. It would be advisable to avoid a situation in which the criminal court taking a decision on extradition, or the Minister of Justice, and the aliens’ authority acting in the refugee procedure, or the administrative court reviewing the decision of the latter, point the finger at each other and the person requested to be extradited effectively falls to the ground between four chairs.
Diplomatic assurances
In contrast to the prohibition of extradition established by the principle of non-refoulement , extradition requesting States often use diplomatic assurances that the person to be extradited will not be subjected to persecution, the death penalty, life imprisonment or inhuman conditions of detention, or that he or she will receive a fair trial. It is also common to be offered the possibility for representatives or diplomats of the requested country to monitor and follow up the situation of the person concerned after extradition.
The Hungarian Code on Mutual Legal Assistance in Criminal Matters also provides for the provision of guarantees in general in § 7, to the effect that the Minister or the Attorney General may make the execution of a request for legal assistance subject to appropriate guarantees, and in the event of a refusal to provide such guarantees, may refuse to execute the request if it is assumed that the proceedings abroad, the expected sentence or its execution are not in accordance with the provisions and principles of the Fundamental Law and international law on the protection of human rights.
In addition, in addition to the general turnaround in relation to the death penalty, it is specifically stated in Section 15 of the Extradition Act that if the laws of the requesting State allow for the death penalty for the offence on which the extradition request is based, the Minister may only authorise extradition if the requesting State provides sufficient guarantees that if the extradited person is subject to the death penalty, it will not be carried out against him or her.
In addition, the provision of guarantees is also mentioned in the context of procedures in absentia, this time under the name of „guarantees”. Here, the general rule laid down in Article 12(1)(e) is that extradition may not be granted if the requesting State seeks the extradition of a person for the purpose of executing a custodial sentence imposed in a decision rendered in absentia and the rights of the defence have not been safeguarded in the proceedings prior to the decision. However, an exception to this rule is made where the requesting State provides sufficient guarantees that it will grant the person requested to be extradited the right to a retrial upon request.
A general criticism of the provision of a guarantee is that it is wrong for the authorities of the requested State to consider that the person concerned would be exposed to a risk in the requesting State which would require a specific guarantee. It is also worth considering the value of a statement by a central body or institution (prosecutor general’s office, foreign ministry, justice minister or president of the republic) if the violations are typically found at lower levels in the country concerned.
The counter-argument could also be made that, in fact, the monitoring system provided for the extradition state does not make much sense either. It is questionable whether this is an effective safeguard, since what can be done afterwards if the country granting extradition were to establish that the obligation contained in the guarantee has been breached by the requesting country? Moreover, it would be establishing its own breach, since it would be admitting its own breach of the principle of non-refoulement . All in all, therefore, the institution of the suretyship is eroding the human rights protection regime.
Assurance or empty diplomatic promises?
The sufficiency of assurances has of course also been considered in the ECtHR’s practice. The basic case was the 1996 case of Chahal v. United Kingdom. In this case, the ECtHR first examined the compatibility with the prohibition of torture of the practice of states to request diplomatic assurances in the event of a threat of torture.
In it, it found that by returning the applicant Sikh activist to India, the UK was in breach of the Convention, despite India’s guarantee that Chahal would not be subjected to ill-treatment. In India, there is widespread ill-treatment of prisoners, often resulting in death, but there are insufficient guarantees and insufficient safeguards where torture is a widespread and persistent problem. This principle has subsequently been applied in many other cases.
Summary
In the above, we have reviewed some of the institutions of extradition law, discussed the history of extradition law, some of its traditions and outlined some of the links between extradition law and human rights. It is then worthwhile to look at where extradition law is heading and what trends can be observed.
Perhaps the most striking is that extradition law is becoming less formalised. Extradition is becoming commonplace, habitual and increasingly automatic. From a lawyer’s point of view, it can be said that the defences against extradition are becoming narrower.
It used to be the case that the offences that constituted extradition offences were listed. Nowadays, it is becoming the other way round, in the sense that those offences are listed as exceptions to the rule that extradition cannot be granted.
It used to be that extradition requests had to be made through diplomatic channels, that is to say, involving the Ministries of Foreign Affairs, but now the Ministries of Justice communicate directly, without any formalities. Moreover, in the case of the European arrest warrant, the judicial authorities (in our case the courts) are already directly involved and the Minister of Justice has no decision-making power. It is a different matter that communication is still through the Ministry of Justice, but the Minister has no decision-making power in this procedure, in fact he only handles the mailing.
The number of extradition treaties is increasing, and more and more countries are reaching the stage of bilateral or multilateral relations where they conclude mutual legal assistance or extradition treaties.
The principle of dual criminality is being eroded: in the case of the European arrest warrant, offences are listed and catalogued, without the requested State having to examine whether the offence is a criminal offence under its own law.
More and more states are deciding that their own nationals can be extradited, most recently Hungary has lifted this restriction, subject to certain restrictions.
The result of these trends is, on the one hand, the need to respond to the internationalisation of crime and, on the other, the strengthening of mutual trust between states.
These trends should lead to an increasing emphasis on human rights guarantees in extradition law and to States abandoning the traditional ‘non inquiry‘ approach in certain worrying circumstances.
It is also our task as lawyers to balance the increasingly internationalised law enforcement interests and human rights guarantees in extradition law in our changing world.
You can read my articles on Hungarian Criminal Law here