Strasbourg, 02 July 2012PC-OC / INF 71

[ PC-OC /Inf 71 table of replies]Eng.only

EUROPEAN COMMITTEE ON CRIME PROBLEMS

(CDPC)

Committee of Experts on the Operation of European Conventions

in the penal field

(PC-OC)

Provisional arrest and detention pending extradition –

time limits applicable in each country

Table of replies to the Questionnaire (PC-OC (2004) 01)

received by the Secretariat by 30 September 2004

Introduction

At the 47th meeting of the PC-OC (15-17 September 2003), the Committee decided that it would be of some interest to make available to PC-OC members information on applicable time limits for provisional arrest and detention pending extradition in requested countries, as this information may be useful, particularly for requesting authorities. Some information on provisional arrest awaiting a formal request for extradition is already provided in the document PC-OC INF 4 Addendum Rev, which was produced in January 1999 and is available on the ‘Information’ page of the Council of Europe’s website on transnational criminal justice [http://www.coe.int/tcj]. However, it was decided that this information should be more comprehensive, visible and user-friendly. It should therefore cover as many States parties to the Extradition Convention as possible, and should be presented in a table which would be available on the website.

The Secretariat therefore prepared a brief questionnaire and addressed it to all members and observers to the PC-OC, as well as to South Africa, which became a Party to the European Convention on Extradition on 13 May 2003 and is not represented in meetings of the PC-OC. Answers to the questionnaire have been summarised and presented in the form of a table, with more specific information appearing in endnotes. The full replies to the questionnaire, submitted in English or French, are contained in the Appendix.

The following document is an unofficial compendium of national legislations and not an authoritative source. Practitioners are therefore encouraged to consult the applicable and up to date legislation of the States concerned.

* * *

Questionnaire (excerpt from doc. PC-OC (2004) 01)

1.Does your national legislation provide for a maximum term for custody (e.g. by the police, customs or other administrative authority) pending the examination by a court of a request for provisional arrest? If so, please indicate the term.

2.In case of a request for provisional arrest under Article 16 of the European Convention on Extradition (ETS 024), what is the period provided for in your national legislation, within which the formal request for extradition is to be received, and failing which the person would be released?

3.Where the formal request for extradition has been received, but the decision on the extradition is pending, which time limit applies to the arrest?

4.Does your national legislation provide for a maximum term for custodial detention, which would apply to a person who has not yet been surrendered but whose extradition has already been decided upon? If so, please indicate the term.

* * *

Note to the reader:

Please be advised that the aim of this document is to provide a general comparative overview of the relevant rules applicable in each State.

This overview does not aim to be exhaustive, nor can it substitute legal advice in a particular matter.

The information contained in the table and following notes is deliberately brief. For more ample information on the situation in a given State, you are advised to consult the relevant full reply in the Appendix (in the electronic version, you may find the right place in the Appendix by clicking on the name of the State in the left column of the table). Each entry in the Appendix includes a reference to the date on which the relevant reply was submitted to the Secretariat.

For further information still, please consult the official sources of the relevant national authority (e.g. at its website, where available).

State	Maximum police custody (Q1)	Time limit for presentation of formal extradition request as per art. 16 (Q2)	Arrest if formal request received but extradition decision still pending (Q3)	Arrest if extradition decision made but surrender pending (Q4)
Albania	48 hours [1]	- 18 days [2] - no more than 40 days [3]	3 months [4]	- 30 days [5] + 15 days (+ 15 days) [6]
Andorra	___ [7]	- 18 days [8] - no more than 40 days [9]	___ [10]	30 days [11]
Armenia	96 hours	30 days	___ [12]	15 days
Austria	48 hours [13]	40 days	6 months [14]	___[15]
Azerbaijan	48 hours [16]	a) - 18 days - no more than 40 days [17] b) - 18 days [18] + 30 days [19]	___ [20]	15 days [21]
Belgium	___ [22]	no more than 40 days [23]	___ [24]	___ [25]
Bulgaria	a) 24 hours [26] b) 72 hours [27]	- 18 days - no more than 40 days [28]	varies [29]	30 days [30]
Canada	___ [31]	a) 30 to 60 days [32] b) 60 days [33]	___ [34]	45 days [35]
Croatia	24 hours [36]	a) maximum 3 months [37] b) 40 days [38]	___ [39]	___ [40]
Cyprus	40 days [41]	40 days [42]	___ [43]	- 1 month [44] - 2 months [45]
Czech Republic	48 hours [46] [47]	40 days [48]	___	3 months [49]
Estonia	48 hours [50]	- 18 days - no more than 40 days [51]	1 year [52]	1 year [53]
Finland	___ [54]	30 to 45 days [55]	___ [56]	1-2 months [57]
France	48 hours [58]	40 days [59]	___ [60]	1 month [61]
Germany	no longer than the end of the day following the arrest [62]	a) - 18 days - no more than 40 days [63] b) 2-3 months [64]	___ [65]	___ [66]
Greece	24 hours [67]	1 month [68]	2 years + 6 months [69]	2 months [70]
Hungary	72 hours [71]	40 days [72]	a) 6 months + 6 months [73] b) varies [74]	___ [75]
Ireland	___ [76]	18 days [77]	___ [78]	15 days [79]
Israel	48 hours [80]	- 20 days - no more than 60 days (+ 10 days) [81]	___ [82]	60 days – extendable [83]
Latvia	72 hours [84]	- 18 days - no more than 40 days [85]	1 year or less [86]	___ [87]
Liechtenstein	48 hours [88]	- 18 days - no more than 40 days [89]	6 months – 1 year [90]	___ [91]
Lithuania	48 hours [92]	a) - 18 days - no more than 40 days [93] b) 3 months – extendable to a maximum of 12/18 months [94]	___ [95]	varies [96]
Luxembourg	- 4 hours - no more than 24 hours [97]	- 18 days - no more than 45 days [98]	___ [99]	___ [100]
Malta	48 hours [101]	___ [102]	___ [103]	2 months [104]
Moldova	72 hours [105]	- 18 days [106]	- 18 days - no more than 45 days [107]	- 18 days - no more than 40 days [108]
Norway	(1 day) [109]	- 28 days - extendable to 40 days [110]	___ [111]	- 28 days - or a period set by court [112]
Poland	48 hours + 24 hours [113]	40 days [114]	3 months – extendable [115]	___ [116]
Portugal	48 hours [117]	18 days + 22 days [118]	up to approx. 12 months [119]	20 days – extendable [120]
Romania	24 hours [121]	- 18 days - no more than 40 days [122]	6 months – extendable [123]	15 days + 15 days [124]
Russian Federation	48 hours [125]	___ [126]	___ [127]	(15 days + 15 days) [128]
Slovakia	96 hours or 120 hours [129]	40 days	___ [130]	60 days [131]
Slovenia	48 hours [132]	a) 40 days [133] b) 3 months + 2 months [134]	(2 years and 6 months) [135]	(2 years and 6 months) [136]
South Africa	48 hours [137]	___ [138]	___ [139]	___ [140]
Spain	24 hours [141]	40 days + 40 days [142]	varies [143]	(15 days + 15 days) [144]
Sweden	___ [145]	40 days [146]	___ [147]	1 month [148]
Switzerland	___ [149]	- 18 days - no more than 40 days [150]	___ [151]	10 days – extendable to 30 days [152]
“The former Yugoslav Republic of Macedonia”	24 hours [153]	40 days [154]	180 days [155]	180 days [156]
Turkey	___ [157]	40 days [158]	___ [159]	___ [160]
United Kingdom	a) 48 hours [161] b) ___ [162]	a) 48 hours [163] b) 45 days [164]	___ [165]	a) 10 days - varies [166] b) 28 days - varies [167]

State

Maximum police custody (Q1)

Time limit for presentation of formal extradition request as per art. 16 (Q2)

Arrest if formal request received but extradition decision still pending (Q3)

Arrest if extradition decision made but surrender pending (Q4)

Albania

48 hours [1]

- 18 days [2]

- no more than 40 days [3]

3 months [4]

- 30 days [5]

+ 15 days (+ 15 days) [6]

Andorra

___ [7]

- 18 days [8]

- no more than 40 days [9]

___ [10]

30 days [11]

Armenia

96 hours

30 days

___ [12]

15 days

Austria

48 hours [13]

40 days

6 months [14]

___[15]

Azerbaijan

48 hours [16]

- 18 days

- no more than 40 days [17]

- 18 days [18]

+ 30 days [19]

___ [20]

15 days [21]

Belgium

___ [22]

no more than 40 days [23]

___ [24]

___ [25]

Bulgaria

a) 24 hours [26]

b) 72 hours [27]

- 18 days

- no more than 40 days [28]

varies [29]

30 days [30]

Canada

___ [31]

a) 30 to 60 days [32]

b) 60 days [33]

___ [34]

45 days [35]

Croatia

24 hours [36]

a) maximum 3 months [37]

b) 40 days [38]

___ [39]

___ [40]

Cyprus

40 days [41]

40 days [42]

___ [43]

- 1 month [44]

- 2 months [45]

Czech Republic

48 hours [46] [47]

40 days [48]

___

3 months [49]

Estonia

48 hours [50]

- 18 days

- no more than 40 days [51]

1 year [52]

1 year [53]

Finland

___ [54]

30 to 45 days [55]

___ [56]

1-2 months [57]

France

48 hours [58]

40 days [59]

___ [60]

1 month [61]

Germany

no longer than the end of the day following the arrest [62]

- 18 days

- no more than 40 days [63]

b) 2-3 months [64]

___ [65]

___ [66]

Greece

24 hours [67]

1 month [68]

2 years + 6 months [69]

2 months [70]

Hungary

72 hours [71]

40 days [72]

a) 6 months + 6 months [73]

b) varies [74]

___ [75]

Ireland

___ [76]

18 days [77]

___ [78]

15 days [79]

Israel

48 hours [80]

- 20 days

- no more than 60 days

(+ 10 days) [81]

___ [82]

60 days – extendable [83]

Latvia

72 hours [84]

- 18 days

- no more than 40 days [85]

1 year or less [86]

___ [87]

Liechtenstein

48 hours [88]

- 18 days

- no more than 40 days [89]

6 months – 1 year [90]

___ [91]

Lithuania

48 hours [92]

- 18 days

- no more than 40 days [93]

b) 3 months – extendable to a maximum of 12/18 months [94]

___ [95]

varies [96]

Luxembourg

- 4 hours

- no more than 24 hours [97]

- 18 days

- no more than 45 days [98]

___ [99]

___ [100]

Malta

48 hours [101]

___ [102]

___ [103]

2 months [104]

Moldova

72 hours [105]

- 18 days [106]

- 18 days

- no more than 45 days [107]

- 18 days

- no more than 40 days [108]

Norway

(1 day) [109]

- 28 days

- extendable to 40 days [110]

___ [111]

- 28 days

- or a period set by court [112]

Poland

48 hours + 24 hours [113]

40 days [114]

3 months – extendable [115]

___ [116]

Portugal

48 hours [117]

18 days + 22 days [118]

up to approx. 12 months [119]

20 days – extendable [120]

Romania

24 hours [121]

- 18 days

- no more than 40 days [122]

6 months – extendable [123]

15 days + 15 days [124]

Russian Federation

48 hours [125]

___ [126]

___ [127]

(15 days + 15 days) [128]

Slovakia

96 hours or 120 hours [129]

40 days

___ [130]

60 days [131]

Slovenia

48 hours [132]

a) 40 days [133]

b) 3 months + 2 months [134]

(2 years and 6 months) [135]

(2 years and 6 months) [136]

South Africa

48 hours [137]

___ [138]

___ [139]

___ [140]

Spain

24 hours [141]

40 days + 40 days [142]

varies [143]

(15 days + 15 days) [144]

Sweden

___ [145]

40 days [146]

___ [147]

1 month [148]

Switzerland

___ [149]

- 18 days

- no more than 40 days [150]

___ [151]

10 days – extendable to 30 days [152]

“The former Yugoslav Republic of Macedonia”

24 hours [153]

40 days [154]

180 days [155]

180 days [156]

Turkey

___ [157]

40 days [158]

___ [159]

___ [160]

United Kingdom

a) 48 hours [161]

b) ___ [162]

a) 48 hours [163]

b) 45 days [164]

___ [165]

a) 10 days - varies [166]

b) 28 days - varies [167]

A P P E N D I X

Full texts of the Replies to the Questionnaire

ALBANIA – 19 Feb 2004

Article 495

The arrest by the judicial police

1. In case of urgency, the judicial police may carry out the arrest of the person who is subject to request for temporary arrest. It also carries out the attachment of the real evidence of the criminal offence and of the objects connected with it.

2. The authority which has carried the arrest out shall immediately inform the prosecutor and the Minister of Justice. The prosecutor, within forty-eight hours, shall make the arrested available to court of the territory where the arrest has taken place, sending also the relevant documents.

3. The court, within forty-eight hours from the arrest, approves it if there are the requirements or orders the release of the arrested. The decision rendered by the court shall be informed to the Minister of Justice.

4. The arrest shall be revoked in case the Minister of Justice does not request, within ten days from the approval, its continuance.

Article 494

Temporary execution of coercive measures

5. The Minister of Justice gives notice to the foreign country of the temporary coercive measure and of the eventual attachment.

6. The coercive measures are revoked if, within eighteen (18) days (from arrest) but in any event, shall not exceed 40 days from the notification herein of, the request for extradition and the documents enclosed do not arrive to the Ministry of Justice.

Article 492

The actions of the prosecutor

4. Within three months from the date on which the request for extradition has arrived, the prosecutor submits the request to the court for examination.

(there isn’t specific time of limits applies to arrest, only it is foreseen that the prosecutor within three months from the date on which the request for extradition has arrived, should submit it to the court for examination).

Article 499

The decision of extradition

1. The Minister of Justice decides for the extradition within thirty days from the date the decision of the court has become final. After the expiration of this time-limit, even in case the decision is not rendered by the Minister, the person subject to extradition, if imprisoned, shall be released.

2. The person shall be released even in case the request for extradition is rejected.

3. The Minister of Justice communicates the decision to the requesting state and, when this is favourable, the place of the surrender and the date by which it is excepted to start. The time-limit of the surrender is fifteen days from the fixed date and, upon motivated request of the requesting state, it may be also extended to fifteen other days.

4. The decision of extradition shall lose its effect and the extradited shall be released in case the requesting state does not act, within the fixed time-limit, to receive the extradited.

ANDORRA – 1 Mar 2004

1) Dans le cas d'une demande d'arrestation provisoire aucune détention administrative n'est permise par la loi andorrane d'extradition du 28 novembre 1996. Cette loi impose, en effet. dans tous les cas d'arrestation, la présentation de la personne dont l'extradition est demandée au batlle (juge) de service qui peut ordonner la détention provisoire et communiquer sa décision au Tribunal de Corts (juridiction pénale de première instance).

2) Le Président du Tribunal de Carts peut mettre fin à la détention provisoire si, dans un délai de 18 jours à compter de la détention, la demande d'extradition accompagnée des documents prevus par la loi n'a pas été soumise au gouvemement andorran. Dans tous les cas, la détention ne peut excéder quarante jours à compter de la décision de détention provisoire jusqu'à la réception du dossier de demande d'extradition par le Tribunal de Carts compétent pour prendre la décision d' extradition.

3) Aucune durée maximale de détention n'est prévue dès la réception de la demande formelle d'extradition et en attendant une décision d'extradition, mais la personne concernée peut, à partir de sa mise en détention et à tous les stades de la procédure, demander sa mise en liberté conformément aux dispositions du Code de procédure pénale.

4) La personne dont l'extradition a été decidée doit être mise en liberté si elle n'a pas été réclamée dans le délai de trente jours à compter de la communication de la décision exécutoire d'extradition a !'Etat requérant.

ARMENIA – 11 Feb 2004

According to the Criminal Procedure Code of the Republic of Armenia:

1. A maximum term for custody is 96 hours.

2. The period provided for within which the formal request for extradition is to be received and failing which the person should be released is 1 month.

3. There is no special article which regulates the time limit for making decision on the extradition but in practice it is not more than 30 days.

4. Maximum term for custodial detention of person who has not yet been surrendered but whose extradition has been already decided is 15 days.

AUSTRIA – 27 Sep 2004

Within 48 hours the arrested person must either be released (if there are not sufficient reasons to continue the detention) or transferred to the competent court. Within another 48 hours the investigative judge has to make a ruling regarding the placement of the person under detention for extradition.

In relation to States applying the European Convention on Extradition the formal request for extradition must be received within 40 days after the arrest. In practise this time limit is also observed in relation to States where no international/ bilateral instrument is available (article 28 para 2 of the Code of legal Assistence and Extradition provides for an appropriate time limit to be set for receipt of the formal request).

The arrest shall not exceed 6 month. This time limit may be extended to a maximum period of a year, if particular difficulties or the volume of the proceedings so necessitate and if the offense underlying the request for extradition is a crime pursuant to the Austrian Penal Code (punishable with more than 3 years imprissonment).

Apart from the Code on Judicial Cooperation in Penal Matters with Member States of the European Union, which came into force on 1 May 2004 and which implements obligations under the Framework Decision on the European Arrest Warrant, the national legislation does not provide for time limits with regard to the detention of a person who has not yet been surrendered but whose extradition has already been decided upon. In practise the time limits in article 18 para 4 of the European Convention on Extradition are also observed in relation to States where special international instruments are missing or do not contain a relevant provision.

AZERBAIJAN – 9 Mar 2004

Extradition cases are governed, other than international conventions, by the law on Extradition of the Republic of Azerbaijan of 15 may 2001 and Criminal Procedure Code Chapter LVII.

According to the article 1.2 of the Law on Extraditon “This law applies according to the principle of mutual assistance in the cases where there is no corresponding convention on extradition between the Republic of Azerbaijan and the requesting State”.

According to the Article 488 of the Criminal Procedure Code (Procedural and other acts relating to legal assistance in the territory of the Azerbaijan Republic):

In the territory of the Azerbaijan Republic, procedural and other acts relating to legal assistance may be carried out only at the official request of the relevant authorities of foreign states with which the Azerbaijan Republic has an agreement on legal assistance in criminal matters.

In the territory of the Azerbaijan Republic, procedural and other acts relating to legal assistance shall be carried out on the basis of this Code, of other laws and of the international agreements to which the Azerbaijan Republic is a party. In such cases, if the provisions of the legislation of the Azerbaijan Republic conflict with those of the international agreements to which the Azerbaijan Republic is a party, the provisions of the international agreements shall apply.

1. Does your national legislation provide for a maximum term for custody (e.g. by the police, customs or other administrative authority) pending the examination by a court of a request for provisional arrest?

According to the Article 497 Criminal Procedure Code of the Republic of Azerbaijan:

(Release of a person detained in connection with a request for his extradition )

497.1. A person detained under Article 495.3 of this Code shall be released if, within 48 hours of his detention, the prosecuting authority of the Azerbaijan Republic does not receive an official request for his extradition.

497.2. If a person is arrested under Article 495.1 of this Code before the decision on his extradition is taken, he shall be immediately released if the prosecuting authority of the Azerbaijan Republic decides that it is impossible, or refuses, to extradite him.

2. In case of a request for provisional arrest under Article 16 of the European Convention on Extradition (ETS 024), what is the period provided for in your national legislation, within which the formal request for extradition is to be received, and failing which the person would be released?

a. In the case where the extraditon cases are governed by the of the European Convention on Extradition the period provided within which the formal request for extradition is to be received are those indicated in the article 16 of the Convention.

b. In the case where the extraditon cases are not governed by the of the European Convention on Extradition article 7.4 of the Law on Extradition of the Republic of Azerbaijan applies.

This article states that: “The person arrested in accordance with the rules provided in article 7.1 of this law is relesed, if within a period of 18 days after arrest, requested Party has not received the request for extradition or the documents mentionned in article 5 of this Law. In the case of necessity, on the request of the requesting State, this period may be prolonged for no longer than 30 days beginning from the day of the reception of the request for provisional arrest.

3.Where the formal request for extradition has been received, but the decision on the extradition is pending, which time limit applies to the arrest?

The legislation does not set a maximum duration of detention.

4. Does your national legislation provide for a maximum term for custodial detention, which would apply to a person who has not yet been surrendered but whose extradition has already been decided upon? If so, please indicate the term.

The prosecuting authority of the Azerbaijan Republic to which the request was addressed shall inform the requesting competent authority of the foreign state of the date and place of the extradition. If the competent authority of the foreign state does not accept the person concerned within 15 (fifteen) days of the date arranged for his extradition, the person shall be released from detention.

BELGIUM – 23 Feb 2004

1. L'article 5 alinéa 1 de la loi du 15 mars 1874 sur les extraditions ne fixe aucune période maximale de détention dans l'hypothèse considerée par cette question.

2. L'alinéa 2 de l'article 5 de la loi du 15 mars 1874 sur les extraditions fixe à 40 jours maximum la période visée par cette question.

3. La loi précitée ne fixe en l' occurrence aucune durée maximale de détention.

4. Ici egalement, la durée maximale de détention n' est pas réglementée par la même loi. Cette dernière forme de détention est, pour l'essentiel, conditionnée par la disponibilité des services policiers en charge de la remise/reprise de la personne extradée.

Dans la pratique des cas individuels, la détention extraditionnelle totale (depuis I'arrestation provisoire jusqu’à la remise de I' extradé à l’Etat requérant) n'atteint que rarement une durée d'un an.

BULGARIA – 12 Feb 2004

1. Does your national legislation provide for a maximum term for custody (e.g. by the police, customs or other administrative authority) pending the examination by a court of a request for provisional arrest? If so, please indicate the term..

Article 152 a, paragraph 3, sentence 2 of the Bulgarian Criminal Proceeding Code reads: “Where necessary, the respective body may order that the accused be remanded in custody until bringing him or her before the court. Such remand in custody shall not last for more than 72 hours if it has been ordered by the prosecutor and more than 24 hours, if it has been ordered by the investigating body.”

2. In case of a request for provisional arrest under Article 16 of the European Convention on Extradition (ETS 024), what is the period provided for in your national legislation, within which the formal request for extradition is to be received, and failing which the person would be released?

Bulgaria applies provisions of art.16, par.4 of the European Convention on Extradition, which provides that a request for extradition cannot be delayed for more than 40 days after the date of detention and terms of bilateral contracts on legal aid, which are between 18 days and 3 months.

3. Where the formal request for extradition has been received, but the decision on the extradition is pending, which time limit applies to the arrest?

In that case applies the term decided by the court in a court session.

4. Does your national legislation provide for a maximum term for custodial detention, which would apply to a person who has not yet been surrendered but whose extradition has already been decided upon? If so, please indicate the term.

Article 440 d, paragraph 3 of the Bulgarian Criminal Proceeding Code provides for the following: “If within one month from the agreed date of delivery, the authorities of the other state fail to accept the person to be delivered, he or she shall be released and is or her delivery again on the same grounds may be rejected.”

CANADA – 9 Mar 2004

Does your national legislation provide for a maximum term for custody (e.g. by the police, customs, or other administrative authority) pending the examination by a court of a request for provisional arrest? If so, please indicate the term.

No. Under Canadian law, the warrant for provisional arrest is the basis upon which a person may be arrested provisionally. In the absence of a warrant for provisional arrest, there is no basis to hold the person in custody. The relevant provisions of the Extradition Act are:

The Minister may, after receiving a request by an extradition partner for the provisional arrest of a person, authorize the Attorney General to apply for a provisional arrest warrant, if the Minister is satisfied that
1. the offence in respect of which the provisional arrest is requested is punishable in accordance with paragraph 3(1)(a); and
2. the extradition partner will make a request for the extradition of the person.
(1) A judge may, on ex parte application of the Attorney General, issue a warrant for the provisional arrest of the person, if satisfied that there are reasonable grounds to believe that
1. it is necessary in the public interest to arrest the person, including to prevent the person from escaping or committing an offence;
2. the person is ordinarily resident in Canada, is in Canada or is on the way to Canada; and
3. a warrant for the person’s arrest or an order of a similar nature has been issued or the person has been convicted.

In the case of a request for provisional arrest under Article 16 of the European Convention on Extradition (ETS 024), what is the period provided for in your national legislation, within which the formal request for extradition is to be received, and failing which the person must be released?

Section 14. (1) of the Extradition Act provides, inter alia:

14. (1) A person who has been provisionally arrested, whether detained or released on judicial interim release, must be discharged

...
if the provisional arrest was made pursuant to a request made under an extradition agreement that contains a period within which the request for extradition must be made and the supporting documents provided

when the period has expired and the extradition partner has not made the request or provided the documents, or

(ii) ..; or

if the provisional arrest was not made pursuant to a request made under an extradition agreement or was made pursuant to an extradition agreement that does not contain a period within which a request for extradition must be made and the supporting documents provided,

(i) when 60 days have expired after the provisional arrest and the extradition partner has not made the request or provided the documents, ....

Canada’s extradition agreements provide for a period ranging between 30 to 60 days within which the request and extradition documentation must be provided. As noted above, in the absence of an extradition agreement or if the agreement does not provide a period within which the request and supporting documents must be provided, the request and documents must be received within 60 days of provisional arrest.

Where the formal request for extradition has been received, but the decision on the extradition is pending, which time limit applies to the arrest?

The Extradition Act does not prescribe any time limits within which arrest must take place.

4. Does your national legislation provide for a maximum term for custodial detention, which would apply to a person who has not yet been surrendered but whose extradition has already been decided upon? If so, please indicate the term.

Yes, the term is 45 days.

Section 69 of the Extradition Act provides as follows:

69. A judge of the superior court of the province in which the person is detained who has the power to grant a writ of habeas corpus, may, on application made by or on behalf of the person, and on proof that reasonable notice of the intention to make the application has been given to the Minister of Justice, order the person to be discharged out of custody unless sufficient cause is shown against the discharge if

...; or
the person is not surrendered and conveyed to the extradition partner
1. within 45 days after the order of surrender is made by the Minister under section 40, or
2. if an appeal or judicial review in respect of any matter arising under this Act, or an appeal from such an appeal or judicial review, is pending, within 45 days after the final decision of the court is made, ...

CROATIA – 10 Feb 2004

1.Does your national legislation provide for a maximum term for custody (e.g. by the police, customs or other administrative authority) pending the examination by a court of a request for provisional arrest? If so, please indicate the term.

According to the Croatian Procedure Act, on the motion of the police authorities or the State Attorney, the investigating judge may order by a written ruling with a statement of reasons the provisional confinement for a duration of up to 24 hours of the arrested person brought before him if he establishes the existence of grounds for suspicion that the arrested person committed the offence he is suspected of and if there are grounds of suspicion that he might have escaped (...), provided that provisional confinement is necessary in order to determine the identity, check the alibi, collect data on items of evidence, or remove serious danger to the life or health of people or to property of considerable value.

According to the Croatian Criminal Procedure Law, there is no different approach when it comes to the provisional arrest in urgent matters, in comparison to the regular extradition procedure.

Investigative judge would release the person sought, if the reasons for the arrest no longer exist, or if the extradition request is not received within the period prescribed by the judge and which shall not, in any event, exceed three months from the date of such an arrest. However, since conventions are considered as domestic legal sources and therefore represent the national legislation as well, the period of forty days is more often used in practice.

Nonetheless, a new Law on Extradition is currently drafting, and we shall harmonize extradition procedure with the European standards regarding the period provided for the detention.

3.Where the formal request for extradition has been received, but the decision on the extradition is pending, which time limit applies to the arrest?

For the time being, there is no time limit prescribed within the Croatian Criminal Procedure Law.

No, it does not, but the explanation given ahead under item 2. regarding legal resources applies here as well, therefore the Article 18 of the Convention remains as the only source.

* * *

Explanatory note:

In recent practise judiciary in Croatia more often apply provisions of the convention, particularly when it's come to the provisional arrest.

So, according to Croatian Criminal Procedure Act (which is currently in a process of changing to be more harmonized with the Convention on Extradition), the following situation is currently in force:

In urgent situations, where there exists a real possibility that the foreign national will flee or hide, officers of the Ministry of Interior may arrest the foreigner and bring him in front of the investigating judge of the appropriate court on the basis of the request by the appropriate foreign body, without consideration on how that request was sent. The request must contain elements which will ascertain the identity of the foreign national, the nature and the definition of the criminal offence, the number of the disposition, the date, the address and the name of the foreign body which ordered the arrest and a declaration that an extradition demand will be sent through regular channels.

When custody is ordered according to the ruling of the previous paragraph and the foreign national is brought in front of the investigating judge, the investigating judge shall, after the interrogation of the suspect, inform via the Ministry of Justice the Ministry of External Affairs.

The investigating judge will free the foreign national when the conditions for his detention cease to exist or when the request for his/her extradition was not forwarded within the time period imposed by the investigating judge. This time period should not exceed three months from the moment of the arrest of the suspect foreigners, taking into account distances between countries. The foreign state shall be duly informed about the time constraints. In answer to a request by the foreign state, the judges in council of the appropriate court may, if justifiable, extend the time limit for a maximum of two months.

When the request for extradition in presented within the time delay, the investigating judge shall, after the identity has been duly established, inform the foreign national why and on what grounds his\her extradition is being sought and what he\she can say in his\her defence.

Records will be kept about the investigation and the defence. The investigating judge shall inform the foreign national that he\she has the right to an attorney or that one will be appointed by the state if the matter at hand is a criminal offence for which a defence attorney is imposed by law.

So, the arrest will be done by the police and the detention (custody) of the foreign national for the purpose of extradition may only be ordered by the decision of the investigating judge.

CYPRUS – 1 Mar 2004

Article 16 of the Convention is directly applicable concerning the maximum term for custody i.e. the maximum period is 40 days. The domestic legislation stipulates that upon arrest of a fugitive pending the arrival of the extradition request and the issue of the Authority to proceed by the Minister of Justice, the Court may fix a reasonable time for the detention of the fugitive (art.9.4 Law no95/1970) which , in view of Art 16 of the Convention, cannot exceed 40 days.

The same maximum period of 40 days.

3.Where the formal request for extradition has been received, but the decision on the extradition is pending, which time limit applies to the arrest?

There is no time limit.

According to our domestic legislation “The extradition of fugitive offenders Law of 1970” article 12(b), the maximum term for custodial detention is one month “where a warrant for the return of the fugitive has been issued, beginning with the day on which that warrant was issued” and article 12(a) “in any case, the period of two months beginning with the first day on which he is eligible for return.

CZECH REPUBLIC – 27 Feb 2004

Within 48 hours upon an arrest the person concerned must be brought before a judge in order to commit the person concerned to custody or release him/ her. A judge is obliged to take the decision within successive 24 hours. Failure to meet any of these time limits owes to release of the person concerned. These time limits are same for the surrender procedure based on the European arrest warrant, extradition procedure and for criminal proceedings conducted by national prosecuting judicial authorities.

In the Czech legislation, in case of a request for provisional arrest under Article 16 of the European Convention on Extradition ( ETS 024 ), the period provided for within which the formal request for extradition is to be received, and failing which the person would be released is 40 days.

3.Where the formal request for extradition has been received, but the decision on the extradition is pending, which time limit applies to the arrest?

The formal request for extradition has been received by post at the Ministry of Justice of the Czech Republic at the latest the 40th day of the term stipulated in Article 16 paragraph 4 of the European Convention on Extradition (ETS 024). There is no time limit applied to the arrest in the Czech legislation.

The maximum length for custodial detention of a person whose extradition has already been decided upon but who has not yet been surrendered is up to 3 months. If special circumstances occur, the Court may prolong the custodial detention by 3 more months (up to the maximum of 6 months).

ESTONIA – 23 Feb 2004

Under Estonian Constitution and Criminal Procedure Code the maximum period for detention of a suspect by police, customs or other administrative authority is up to 48 hours. During this time-period the court must decide to arrest or not a person.

Pursuant Article 402 of Estonian Criminal Procedure Code a person may be released from custody if a foreign state fails to submit a request for extradition and the required documents within 18 days after the detention of a person. A person shall be released from custody if a request for extradition has not been received within 40 days.

There are no fixed time limits for detention a person after the request for extradition has been received. In case the basic principle can be applied - the maximum period for arrest in 1 year not more.

There is no fixed time limit once the extradition decision has been made. The general rule will be used: not more than one year in preliminary detention (arrest).

FINLAND – 23 Feb 2004

According to the Chapter 19 in the Extradition Act the police has to notify the court promptly about having taken the person in question in custody. No specific time limit in hours or days is provided in the Extradition Act. At any case promptly could in no circumstances be more than until the third day by noon, since that is the general time limit for custody ordered by the police according to the Coercive Measures Act.

The Ministry of Justice will set a time limit that shall not exceed 30 days from the date on which the requesting State was sent a notification of the provisional arrest. With special reasons the time limit can be 45 days.

There is no specific provision.

The Ministry of Justice will set a time limit that shall not without special reasons exceed one month from the date on which the requesting state is notified of the decision. The time limit shall in no case exceed two months.

FRANCE – 23 Feb 2004

1°) La personne arrêtée doit être présentée au Procureur de la République dans un délai de 48 heures afin que celui-ci statue sur son placement sous écrou extraditionnel. Le contentieux de la remise en liberté est le cas échéant porté devant la chambre de l’instruction.

Le projet de loi portant adaptation de la justice aux évolutions de la criminalité réduit le délai à 24 heures avant d'être devant le procureur de la république (article 696-10 du code de procédure pénale).

2°) Les dispositions législatives françaises imposent un délai de 40 jours à compter de l’arrestation pour recevoir de l’Etat requérant une demande formelle d’extradition avec toutes les pièces requises en original. Après ce délai et si la demande n’est pas parvenue ou demeure incomplète, l’intéressé pourra être remis en liberté, sans préjudice d’un réexamen ultérieur de la demande et d’un nouveau placement sous écrou extraditionnel.

3°) La France ne connaît aucune disposition prévoyant une durée maximale de détention d’une personne sous écrou extraditionnel après la réception de la demande formelle.

Le projet de loi portant adaptation de la justice aux évolutions de la criminalité prévoit des dispositions raccourcissant le délai d’instruction de la demande d’extradition, en distinguant suivant que l’extradition est demandée par un pays membre de l’Union Européenne ou par un pays tiers, et selon le consentement à l’extradition donné par l’intéressé.

4°) L'article 18 de la loi du 10 mars 1927 relative à l'extradition des étrangers dispose que si dans le délai d'un mois à compter de la notification du décret autorisant l'extradition à l'Etat requérant l'extradé n'a pas été reçu par les agents de la puissance requérante, il est mis en liberté et ne peut plus être réclamé pour la même cause.
Le projet de loi portant adaptation de la justice aux évolutions de la criminalité, qui abroge et remplace cette loi, reprend cette disposition en la codifiant sous l'article 696-18 du code de procédure pénale.

GERMANY – 25 Feb 2004

The regulations governing extradition between Germany and other countries differ according the specific country concerned.

German law contains:

–regulations concerning the Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States of the European Union,

-regulations concerning treaty-based extradition such as pursuant to the European Convention on Extradition of 13 December 1957, and

–regulations concerning non-treaty extradition which is governed by domestic legislation in the form of the German Act on International Mutual Assistance in Criminal Matters.

These regulations contain different time limits for transmission of the extradition documents after provisional arrest of the person sought.

In replying to the questions put, it must be taken into account that the German law governing extradition provides for a graduated approach in respect of the regulations referred to above as well as for the principle of most favourable treatment. The graduated approach principle means that the regulations to be applied in the first place are those concerning the European arrest warrant, followed by those concerning treaty-based extradition and then those concerning non-treaty extradition. The principle of most favourable treatment means that if extradition is inadmissible under the regulations applicable in the first place, it may still be granted alternatively under the regulations applicable in the second or third place, provided that these regulations provide for extradition.

Question 1:

Yes, Sections 21 and 22 of the Act on International Cooperation in Criminal Matters and the German Code of Criminal Procedure contain a maximum term for custody pending the examination by a court of a request for provisional arrest. It is the end of the day following the provisional arrest.

Question 2:

The regulations concerning the European arrest warrant do not contain any time limit for transmission of the extradition documents after provisional arrest because they are based on the assumption that all extradition documents are already available at the outset of the proceedings. The documents provided in the context of the international alert are sufficient as extradition documents.

In the area of treaty-based extradition, the period of time for transmission of the extradition documents is stipulated in the international extradition treaties. For example, pursuant to Article 16 para. 4 of the European Convention on Extradition, this period must not exceed 40 days from the date of arrest. A shorter period of up to 18 days can be set in the individual case. It is only in exceptional cases that the possibility of setting a shorter period is used.

In the area of non-treaty extradition, the period of time for transmission of extradition documents is governed by section 16 subsection 2 of the Act on International Legal Assistance in Criminal Matters. This section reads:

“The extradition arrest order shall be cancelled if the person sought has been detained from the day of his or her arrest or under provisional detention for the purpose of extradition for a total of two months and the extradition request with the extradition documents has not been received by the authorities designated in Sec. 74 or by any other authorities competent to receive the request and the documents. If a non-European state has requested the order of a provisional extradition detention, the period of time shall be three months.”

Question 3:

The period of detention is limited according to the principle of necessity and proportionality. There are no definite time limits in this field.

Question 4:

German legislation does not provide for definite time limits in respect of the duration of detention when extradition has been granted, but the person sought has not yet been surrendered. However, surrender must take place promptly, i.e. without culpable delay. Culpable conduct of the requesting state in respect of prompt surrender may result in the person sought being released.

GREECE – 1 Mar 2004

In general, according to the Greek Code of Criminal Procedure (art. 275, 279, 283): The person arrested after flagrant crime shall be surrendered within 24 hours to the Prosecutor, who forwards the case to the conducting the preliminary investigation judge. The latter decides about arrest and provisional detention.

Provisional –after communication, in cases of urgency- arrest is terminated if, within a period of 1 month after this arrest, the requested Party has not received the request for extradition (art. 445 par. 3 of the Greek C.C.P. The Provisions of the Greek C.C.P. are applied unless an international Convention provides otherwise)

A request for (provisional) arrest shall be sent to the competent judicial authority (a Judicial Council of Appeal) within 24 hours after the receiving of the request and the documents (art. 448 al. 1 C.C.P.). The Judicial Council of Appeal may, after a special request of the Prosecutor or the requested person, postpone the discussion of the case (8 days maximum, 449 al. 1 C.C.P.). In any case provisional detention should be terminated within two years after the arrest, if the arrested person is not surrendered. The resulting release of the person could be postponed for six months by a decision of the competent Judicial Council (452 par. 2.1)

The person arrested after a decision of extradition should be released, if not surrendered within two months after the communication of the decision to the requesting Party (art. 452 al. 2.2 C.C.P.)

HUNGARY – 11 Feb 2004

Art. 19 alinéa 1 et Art. 25 alinéa 1 de la Loi XXXVIII. de 1996 sur l’entraide judiciaire internationale en matières pénales réglent cette question. Si la personne recherchée est retrouvée sur le territoire de la République de Hongrie, la police (Interpol) ou la police des frontières mets cette personne en garde à vue, et prends des mesures pour qu’elle comparaîsse devant le Tribunal de la Capitale (Budapest). La durée maximale de cette garde à vue est 72 heures.

L’arrestation provisoire doit être cessé, si la demande formelle d’extradition n’arrive pas dans les 40 jours suivant l’ordre de l’arrestation provisoire (Art. 25 alinéa 1).

– 4. La durée maximale d’arrestation en vue d’extradition est 6 mois. Cette période peut être prolongée une fois de 6 mois au plus. Si la demande d’extradition est présentée en vue d’exécution d’une peine d’emprisonnement ou d’une peine privative de la liberté, la durée de l’arrestation ‘extradition ne peut pas excéder la durée de la peine de d’emprisonnement ou de la peine privative de la liberté infligée (Art. 22 alinéa 1).

Dans le cas où la personne demandée est en arrestation provisoire, le premier jour de la durée de l’arrestation d’extradition est le jour quand le Ministère de la Justice hongrois est saisie de la demande formelle d’extradition. Dans ce cas, l’arrestation provisiore dure jusqu’à l’ordre d’arrestation d’extradition. (Art. 22. alinéa 3).

Si la personne demandée présente une demande pour être reconnue comme réfugiée ou il y a une procedure d’asile en cours, le delai de l’arrestation d’extradition, ainsi que le délai de l’arrestation provisoire (dans le cas d’une extradition simplifiée) – en tenant compte de la conclusion de la procedure d’asile – se prolonge pour qu’il reste au moins 40 jours après le refus de la demande d’asile pour prendre une décision sur l’extradition de la personne demandée et sur sa remise. Dans ce cas, la durée de l’arrestation d’extradition et de l’arrestation provisiore (dans le cas d’une extradition simplifiée) ne peuvent pas exceder 24 mois dès le début de l’arrestation d’extradition ou de l’arrestation provisiore respectivement (Art. 14. alinéa 3).

IRELAND – 20 Feb 2004

1. A person cannot be detained until a provisional arrest warrant is issued by the High Court. A judge of the High Court can issue a warrant for the arrest of a person on the sworn information of a senior Police Officer that a request for the provisional arrest of that person has been made, on the ground of urgency and that the request complies with the requirements of the legislation.

2. When a person is arrested on foot of a provisional arrest warrant, the person is either, at the discretion of the Court, remanded in custody or on bail. If a formal request for extradition is not received and certified by the Minister for Justice, Equality and Law Reform within eighteen days of the person's provisional arrest, the person will be released.

3. Where a formal request for extradition is receiveid, but a decision on the extradition is pending, a High Court judge has tlle same power of remanding the person in custody or releasing the person on bail, pending the outcome of the proceedings, as if the person was brought before him charged with an indictable offence.

4. The maximum term for custodial detention which would apply to a person who has not yet been surrendered but whose extradition has been decided upon is fifteen days after the date of the Court Order.

It would also be open to a person to initiate proceedings under section 4.2 of the Constitution (which relates to the making of a complaint to the High Court by or on behalf of any person alleging that that person is unlawfully detained) and in those circumstances a person, at the discretion of the Court, could be released on bail or remanded in custody.

ISRAEL – 23 Feb 2004

Section 6 of Israel's Extradition Law, 5714-1954, provides that the Attorney General or his delegate, or a high-ranking Israel Police officer, may order the arrest of a fugitive, if there is a basis to assume that he will be subject to extradition. The fugitive must be brought before the Magistrates Court within 48 hours.

Section 7 of Israel's Extradition Law provides that the Magistrates Court may extend the period of the fugitive's provisional arrest for up to 20 days, which period may be extended by the court upon request by the Attorney General. The maximum period of the arrest will not exceed 60 days, unless the formal request for extradition is received. After a request for extradition is received, upon the request of the Attorney General, an additional period of up to 10 days (up to 70 days total) of arrest may be allowed. Within this time, a petition for the fugitive's extradition must be submitted to the District Court.

Section 5 of Israel's Extradition Law deals with the issue of the arrest of the fugitive after a petition has been filed with the District Court to decide whether the fugitive is extraditable or not. Section 5 provides that the order to arrest the fugitive shall be valid until the court gives its decision in the petition. There is no time limit on the arrest in accordance with section 5. However, the general rule is that extradition cases should be dealt with promptly.

Section 19 of Israel's Extradition Law provides that once the declaration of a fugitive as extraditable has become final, the fugitive must be extradited within 60 days. If the fugitive is not extradited within 60 days, the declaration will be annulled. However, the Attorney General and the State Attorney may request the court to extend the term of the declaration, if there are special circumstances delaying the fugitive's extradition.

LATVIA – 19 Feb 2004

Article 492 (1) of the Latvian Criminal Procedure Code provides for a maximum term of 72 hours for custody pending the examination by a court of a request for provisional arrest.

Article 494 (3) of the Latvian Criminal Procedure Code provides for a maximum term of 40 days for provisional arrest from the day of detention (i.e. maximum of 72 hours police custody from the time of detention plus 37 days remand in custody) within which the formal request for extradition is to be received. According to Article 494 (4) of the Latvian Criminal Procedure Code provisional arrest may be terminated if within a period of 18 days after detention the request for extradition or information on the reasons of delay has not been received.

In practice a formal request for extradition is to be sent early enough to enable the competent court to decide on the request before the 40 day time limit expires.

and 4. According to Article 495 (4) of the Latvian Criminal Procedure Code the maximum term under arrest from the day of detention (i.e. including arrest terms mentioned in points 1. and 2.) until the surrender of the person cannot exceed one year. If the punishment awarded by the sentence or detention order passed in the requesting state is less than a year, maximum term under arrest cannot exceed the term of the punishment in question.

LIECHTENSTEIN – 20 Feb 2004

Art. 9 of the Liechtenstein “Law of 15 September 2000 on International Mutual Assistance in Criminal Matters (Legal Assistance Law)” refers to the Code of Criminal Procedure (“Strafprozessordnung, StPO”), which shall be applied correspondingly. Therefore the person in custody is to be interrogated about the facts and concerning the conditions for custody without delay. If there is no reason for further custody the person is immediately to release, otherwise to transfer to the investigative judge within 48 hours (§ 129 Para 2 StPO).

Art. 28 Para 1 Legal Assistance Law contains following: “An appropriate period is to be determined for the receipt of the request for extradition. If a request for extradition is not received within the time limit, the Ministry of Justice has to inform the Court.” In practice Liechtenstein authorities generally use the terms of Art. 16 Para 4 of the European Convention on Extradition (ETS 024).

3.Where the formal request for extradition has been received, but the decision on the extradition is pending, which time limit applies to the arrest?

Art. 24 Para 4 Legal Assistance Law contains following: “The duration of the provisional arrest must not exceed six months. The Court of Appeal can, however, on account of particular difficulties or the particular scope of the proceedings and provided that the offence subject to extradition is a crime, decide at the request of the judge of the Princely Court or the Public Prosecutor's Office that provisional arrest may last up to one year. (…)”

Corresponding to Art. 138 Para 2 (last sentence) of the Code of Criminal Procedure there is following provision in Art. 29 Para 4 (last sentence) Legal Assistance Law: “The time limit of the provisional arrest is cancelled as soon as the Court has taken a decision with regard to the request for extradition; following the decision, hearings relating to the application for release of unconvicted prisoners are cancelled as well.”

LITHUANIA – 18 Feb 2004

Does your national legislation provide for a maximum term for custody (e.g. by the police, customs or other administrative authority) pending the examination by a court of a request for provisional arrest? If so, please indicate the term.

According to Article 140 of the Code of Criminal Procedure of the Republic of Lithuania, a pre-trial investigation officer or a prosecutor may arrest a person caught in the act of committing an offence (in flagrante delicto) or immediately after committing the offence if upon reasonable belief that such a person may flee, or if it is impossible to identify him immediately also in other cases where there are grounds and conditions for employing arrest.

Arrest may not last longer than for 48 hours.

If detention must be applied to the arrested person, he must be brought, within 48 hours, before the judge, who shall decide the issue of employing detention under this Code.

Regarding the term of the detention as a provisional measure (Article 127 of the Code of Criminal Procedure of the Republic of Lithuania), detention may not be applied for more than six months. A definite term shall be determined by the pre-trial judge who made an order for detention. However, initially detention may not be imposed for a period longer than three months. Extension of the detention but for a period not longer than up to six months may be authorised by the same judge or another pre-trial investigation judge of the same district court or another district court.

The term of detention indicated in paragraph 4 of this Article may be extended due to a great complexity or large scope of the case by a judge of a county court but not longer than for a period of up to three months. The extension may be repeated; however, during the pre-trial investigation it may not be extended for more than up to eighteen months, and for juveniles – up to twelve months.

Following Article 72 of the Code of Criminal Procedure of the Republic of Lithuania, the person whose extradition or transfer to the International Criminal Court is requested shall be detained on the grounds provided for in international agreements to which the Republic of Lithuania is a party and in this Code. The duration of detention of persons whose extradition or transfer to the International Criminal Court is requested shall be laid down by international agreements to which the Republic of Lithuania is a party or this Code. According to Article 16 of the European Convention on Extradition, the detained person may be released if within the period of 18 days after detention including the arrest (48 hours), if the request for extradition and other related documents are not received. It shall not, in any event, exceed 40 days from the date of arrest.

It should be noticed that if an international agreement does not indicate a maximum term for detention, Article 127 of the Code of Criminal Procedure of the Republic of Lithuania is applied.

Where the formal request for extradition has been received, but the decision on the extradition is pending, which time limit applies to the arrest?

According to the Code of Criminal Procedure of the Republic of Lithuania, a prosecutor of the Office of the Prosecutor General, on the grounds provided for by an international agreement to which the Republic of Lithuania is a party, shall apply, with regard to extradition of a person or his transfer to the International Criminal Court, to the Vilnius County Court.

A judge must, within seven days, hold a hearing to which the extraditable person, his counsel for the defense and the prosecutor must be summoned. Participation of the prosecutor and the counsel during such a hearing is obligatory. The detention grounds are the request for extradition or surrender to the International Criminal Court.

In fact, there is no term stipulated in the Code of the Criminal Procedure of the Republic of Lithuania for the decision on extradition to be taken. The period of detention and extension of its term is applied according to the above mentioned Article 127 of Code of the Criminal Procedure of the Republic of Lithuania.

Does your national legislation provide for a maximum term for custodial detention, which would apply to a person who has not yet been surrendered but whose extradition has already been decided upon? If so, please indicate the term.

According to Article 76 of the Code of Criminal Procedure of the Republic of Lithuania, the procedure and conditions of the transfer of the person claimed with regard to whom there is an effective order for his extradition or surrender to the International Criminal Court shall be established by the international agreements to which the Republic of Lithuania is a party. Following Article 18 of the European Convention on Extradition, the requested Party shall inform the requesting Party of its decision with regard to the extradition. If the person claimed has not been taken over on the appointed date, he may be released after the expiry of 15 days and shall be in any case released after the expiry of 30 days.

Generally, almost all the other international agreements establish analogous procedure and conditions for the surrender of the person to be extradited.

LUXEMBOURG – 1 Mar 2004

Le Luxembourg dispose d'une loi récente sur l'extradition, loi qui date du 20 juin 2001. Cette loi remplace celle du 13 mars 1870 « sur l'extradition des malfaiteurs etrangers ».

La loi détermine les conditions, la procedure et les effets de I' extradition. Elle s'applique:

- en I' absence de traité international

- aux questions non réglées par un instrument bilatéral ou multinational auquel le Luxembourg est partie.

L 'article 20.1) de la loi sur l'extradition prévoit que les autorités de l'Etat requérant peuvent, en cas d'urgence, demander l'arrestation provisoire de la personne recherchée, soit par la voie diplomatique, soit directement par voie postale, soit par Interpol, soit par tout autre moyen laissant une trace écrite ou admis par le Luxembourg.

1. Votre législation nationale fixe-t-elle une période maximale de détention (par exemple, par la police, les Douanes ou toute autre autorité administrative) en attendant l'examen par un tribunal de la demande d 'arrestation provisoire ?

Une personne faisant l'objet d'une demande d'arrestation provisoire en vue de son extradition et appréhendée par les forces de l' ordre, peut être retenue par un officier de police judiciaire pendant une durée de 4 heures au plus, délai de rétention maximal prévu par la loi pour les vérifications d'identité (article 45 du code d'instruction criminelle).

Pendant ce temps, le Parquet doit requérir auprès du juge d'instruction la délivrance d'un mandat d'arrêt provisoire. Suite à la délivrance du mandat, I' intéressé peut être conduit à la maison d'arrêt, mais le mandat doit lui être notifié, de préférence avant le transfert en prison, sinon au plus tard dans les 24 heures de son arrestation (article 12 de la Constitution du Grand-Duche de Luxembourg).

Si le mandat d'arrêt provisoire a été délivré par le juge d'instruction avant l'interpellation de la personne recherchée, le mandat est notifié à l'interessé au moment de I'arrestation, si I'officier de police judiciaire détient le mandat en sa possession, sinon dans les meilleurs délais et au plus tard dans les 24 heures.

Un contrôle (automatique) de la demande d'arrestation provisoire par un tribunal n'est pas prevu. C'est le juge d'instruction qui, en delivrant le mandat d'arrêt provisoire, examine si les conditions de l'arrestation provisoire en vue de l'extradition et notamment l'urgence, sont remplies.

La personne réclamée peut cependant, à tout moment de la phase judiciaire de la procédure d'extradition, présenter une demande de mise en liberté à la chambre du conseil du tribunal d'arrondissement (article 20 alinéa 5 de la loi sur l'extradition). La mise en liberté peut être ordonnée :

- si la procédure d'arrestation est entachée d'une irrégularité portant atteinte grave aux droits de la personne reclamée;

- si la demande d'arrestation provisoire apparaît manifestement mal fondée;

- s'il existe des garanties réelles permettant d'avoir la conviction que la personne réclamée ne se soustraira pas à la remise a l'Etat requérant au cas où I' extradition serait accordée.

2. Dans le cas d'une demande d'arrestation provisoire en application de I 'Article 16 de la Convention européenne d' extradition (STE 024), quelle est la période prévue par votre législation nationale au cours de laquelle la Partie requise doit être saisie de la demande formelle d'extradition et la personne concernée devrait être mise en liberté?

L'article 20 alinéa 4 de la loi sur I'extradition dispose que I'arrestation provisoire peut prendre fin, si, dans le delai de 18 jours après I'arrestation, le Luxembourg n'a pas été saisi de la demande d'extradition accompagnée des pièces exigées par I'article 15 de la loi (decision de condamnation, mandat d'arrêt, exposé des faits, signalement de la personne réclamée etc...).

L'arrestation provisoire ne pent en ancun cas excéder 45 jours après l' arrestation.

3. Dès la réception de la demande formelle d'extradition et en attendant une décision d'extradition, quelle est la durée maximale de détention de la personne concernée ?

Dès que la demande d'extradition a été notifiée à la personne recherchée, ensemble avec les pieces exigées, l'arrestation provisoire prend fin et l'interessé est placé sous écrou extraditionnel dont la durée n'est pas limitée.

4. Votre législation nationale spécifie-t-elle une durée maximale de détention qui s’appliquerait à une personne qui n’a pas encore été remise à l'Etat requérant mais dont l'extradition a déjà été décidée ?

La loi sur l'extradition ne prévoit pas de durée maximale de la détention de la personne dont l'extradition a été accordée, en attendant sa remise à l'Etat requérant.

MALTA – 23 Feb 2004

Does your national legislation provide for a maximum term for custody (e.g. by the police, customs or other administrative authority) pending the examination by a court of a request for provisional arrest? If so, please indicate the term.

Response: Specifically in relation to a pending examination by a court of a request for provisional arrest the law does not provide for a maximum term for custody. The law does provide, however that no one may be detained for a period of more than forty-eight hours after which he must be released or brought before the court.

Response: There is no specific time limit within which the formal request for extradition is to be received but it is up to the court to lay down a period within which an authority to proceed is to be received from the Minister failing which the Court shall discharge the person requested from custody. The authority to proceed is issued following receipt of the extradition request. The period laid down by the Court for the receipt of the order to proceed normally does not exceed one month.

3.Where the formal request for extradition has been received, but the decision on the extradition is pending, which time limit applies to the arrest?

Response: Again there is no specific time limit applicable to the arrest following the receipt of the extradition request. The process for the consideration of the extradition request at first instance, however, cannot exceed six months. Should there be an appeal, however, no similar time limit is laid down for the conclusion of the appeal proceedings but the person requested is retained in custody for the duration of the appeal.

Response: Where the extradition of a person has already been finally decided upon and that person has, in any case, not been surrendered within a period of two months from the first day on which he could have been returned he may apply to the Court of Criminal Appeal and request to be discharged. If a warrant for his return has already been issued by the Minister and the person has not been returned within one month from the date of the warrant that person may again apply to the Court of Criminal Appeal requesting his discharge. If, upon any such application the court is satisfied that reasonable notice of the proposed application has been given to the Minister, the court may, unless sufficient cause is shown to the contrary, by order direct the applicant to be discharged from custody and quash any warrant that may have been issued for the return of the person requested.

MOLDOVA – 27 Feb 2004

1.Votre législation nationale fixe-t-elle une période maximale de détention (par exemple, par la police, les Douanes ou toute autre autorité administrative) en attendant l’examen par un tribunal de la demande d’arrestation provisoire ? Dans l’affirmative, veuillez indiquer la durée maximale fixée.

Dans le chapitre I intitulé LA GARDE A VUE du Code de Procédure Pénale de la République de Moldova dans l’alinéa I il est stipulé : „La garde à vue c’est la privation de liberté de la personne pour une courte période de temps qui ne dépasse pas 72 heures, dans les lieux et les conditions établies par la loi”.

2.Dans le cas d’une demande d’arrestation provisoire en application de l’Article 16 de la Convention européenne d’extradition (STE 024), quelle est la période prévue par votre législation nationale au cours de laquelle la Partie requise doit être saisie de la demande formelle d’extradition et la personne concernée devrait être mise en liberté ?

Dans l’article 547, al. (3) il est stipulé : ”La personne arrêtée... sera mise en liberté si dans un délai de 18 jours à partir de l’arrestation, l’instance qui doit décider sur la recevabilité de l’arrestation de la personne, ne reçoit pas de demande d’extradition et les documents concernés”.

3.Dès réception de la demande formelle d’extradition et en attendant une décision d’extradition, quelle est la durée maximale de détention de la personne concernée ?

Art. 547, al (2): En cas d’urgence, la personne l’extradition de laquelle est demandée, peut être arrêtée en vertu d’un mandat d’arrêt pour un délai de 18 jours, mais ce délai en aucun cas ne dépassera 45 jours , et jusqu’à la réception de la demande d’extradition, si l’Etat étranger ou l’instance nationale a demandé l’arrestation et si la demande comprend des données sur le mandat d’arrêt ou sur l’arrêt définitif adopté à l’égard de cette personne et l’assurance que la demande d’extradition sera envoyée ultérieurement.

4.Votre législation nationale spécifie-t-elle une durée maximale de détention qui s’appliquerait à une personne qui n’a pas encore été remise à l’Etat requérant mais dont l’extradition a déjà été décidée ? Dans l’affirmative, veuillez préciser le délai.

Art. 547, al. (3) indique que : „La personne arrêtée... sera mise en liberté si, dans un délai de 18 jours à partir de l’arrestation, l’instance qui décide sur la recevabilité de l’arrestation de la personne ne reçoit pas de demande d’extradition et les documents concernés. Ce délai peut être prorogé sur demande de l’Etat étranger ou de l’instance nationale, mais en aucun cas ne peut dépasser 40 jours à partir de l’arrestation. Malgré tout cela, la mise en liberté provisoire est possible à tout moment à condition que d’autres mesures puissent être prises à l’égard de la personne sollicitée pour éviter qu’elle s’esquive(se soustraie) de la poursuite.” .

NB. :Dans le cas où, dans votre pays, les différents délais d’arrestation / détention ne correspondent pas aux catégories spécifiques susmentionnées, veuillez l’indiquer clairement dans votre réponse.

Dans l’article 547 Code de Procédure Pénale de la République de Moldova on indique deux délais : l’un de 45 jours, et l’autre de 40 jours, les dispositions de la Convention Européenne étant prioritaires (art. 16).

NORWAY – 20 Feb 2004

According to the Criminal Procedure Act Section 183, the prosecuting authority must, if it wishes to detain an arrested person, bring him before a court “as soon as possible and as far as possible on the day following the arrest” with an application that he be remanded in custody.

2.In the case of a request for provisional arrest under Article 16 of the European Convention on Extradition (ETS024), what is the period provided for in your national legislation, within which the formal request for extradition is to be received, and failing which the person would be released?

The use of provisional arrest awaiting a formal request for extradition is regulated in the Extradition Act Section 20. According to Section 20 para. 1, provisional arrest may be employed to the same extent as in cases relating to offences of a similar nature prosecuted in Norway. The court decides in each case the number of days that a person may be detained awaiting a request for extradition. However, if no extradition request has been received within 4 weeks after notification of the court decision on provisional arrest was sent to the requesting state, coercive measures may no longer be employed. In special circumstances the court may extend this time limit, reaching up to a total of 40 days from the initial arrest. In most cases, the person is detained for 4 weeks (28 days) from the date of the initial court examination of the request for provisional arrest.

3.Where the formal request for extradition has been received, but the decision on the extradition is pending, which time limit applies to the arrest?

Unless otherwise determined by the court, its decision to use coercive measures shall apply until the application for extradition has been resolved. The subject of the extradition request is nevertheless entitled to have the decision to use coercive measures re-tried every three weeks, cf. Extradition Act Section 15 para. 2. The general conditions in the Criminal Procedure Act for keeping somebody in remand custody also apply to extradition cases.

A decision regarding the use of coercive measures shall apply no longer than 4 weeks from the final decision to extradite has been taken. If special grounds exist, the court may, at the request of the Ministry of Justice, decide that the person being extradited be kept in custody for a specific period beyond the set time limit, cf. Extradition Act Section 19 para. 2.

POLAND – 16 Feb 2004

Does your national legislation provide for a maximum term for custody (e.g. by the police, customs or other administrative authority) pending the examination by a court of a request for provisional arrest? If so, please indicate the term.

According to Polish Code of Criminal Procedure that period is 48 hours. The person should be transfered to the court with the prosecutors motion for provisional arrest within this term, otherwise the person is released. The court decision on provisional arrest should be given within 24 hours after the suspect has been handled over to the court disposal.

In case of a request for provisional arrest under art. 16 of the European Convention on Extradition (RTS 024), what is the period provided for in your national legislation, within which the formal request for extradition is to be received, and failing which the person would be released?

The maximum period of provisional arrest in this case is 40 days. If the Polish authority does not receive the formal request for extradition within this period the person is released.

Where the formal request for extradition has been received, but the decision on the extradition is pending, which time limit applies to the arrest?

After the formal request has been received the court gives another decision on the provisional arrest to which the time limits provided for ordinary cases apply. The period that should be determined in the decision should not exceed 3 months. It can be prolonged if the proceedings could not end within that time.

Does your national legislation provide for a maximum term for custodial detention which would apply to a person who has not yet been surrendered but whose extradition has already been decided upon? If so, please indicate the term.

The Polish law does not lay down such a term. General provisions on the duration of provisional arrest and its prolongation apply. The only term envisaged in Polish law for such cases concerns the period for taking over the person after the requesting authority has been notified about when and where the requested person is to be surrendered. The requesting authority should take custody of the person within 7 days from the day established for extradition otherwise the person is promptly released unless he/she is deprived of his liberty in another case.

PORTUGAL – 12 Feb 2004

Dans l’affirmative, veuillez indiquer la durée maximale fixée.

Oui, la législation portugaise, en conformité d’ailleurs avec la Constitution Portugaise, établit un délai maximal de 48 heures entre le moment ou est vérifiée la détention de la personne et sa présentation au Tribunal, pour que la demande d’arrestation provisoire soit examinée. Ainsi, l’article 53º de notre Loi interne (dont une copie suivra comme annexe) établit que la personne détenue en exécution d’un mandat d’arrêt visant son extradition, sera présentée au Magistrat du Parquet de la Cour d’Appel compétente dans un délai maximal de 48 heures; ce même Magistrat, en conformité avec la Constitution, présentera le détenu, devant le Juge de la Cour d’Appel jusqu’à la fin de ce délai de 48 heures.

En conformité avec notre Loi, étant vérifiée une détention par exécution d’une demande d’arrestation provisoire, deux délais suivront; le premier, de 18 jours, pendant lequel l’État requérant, par le biais d’un fax où d’une correspondance, directement addréssée à l’Autorité Centrale portugaise (Parquet Général de la République) doit confirmer son intention de présenter une demande formelle d’extradition. Le deuxième, de 22 jours, jusqu’au terme duquel la présentation formelle de la demande d’extradition doit être vérifiée. Les deux ensemble font l’équivalent du délai de 40 jours établit par l’article 16 nº4 de la CEE. La non observation de chacun de ces délais déterminera la mise en liberté du détenu (cfr. Art. 38 nº5 de la Loi 144/99).

3.Dès réception de la demande formelle d’extradition et en attendant une décision d’extradition, quelle est la durée maximale de détention de la personne concernée ?

Dès la réception de la demande formelle d’extradition plusieurs délais suivront. Ainsi :

a) Dans un délai maximal de 20 jours la procédure d’extradition devra être présentée à la Cour d’Appel compétente. Dans ce délai, le Parquet Général doit formaliser son avis sur la viabilité de la demande (délai de 10 jours), le Ministre de la Justice doit déclarer l’admissibilité de la demande (délai de 5 jours) et la procédure devra être présentée à la Cour (5 jours) (pour ces délais voir l’article 63, nº1 et 3).

b) En cas de détention la Cour d’Appel a un délai maximal de 65 jours ( article 52º nº1) qui peut être prolongé jusqu’à 80 jours.

c) En cas d’appel la Cour Suprême devra décider dans un délai de 80 jours, dont le début est placé sur la date d’interjection de l’Appel (article 52º nº3).

d) En cas d’appel pour la Cour Constitutionelle celle-ci devra décider en 3 mois, dont le début sera placé sur la date de l’interjection de l‘appel (article 52º nº4).

En tout et grosso modo, dès la détention et en cas d’interjection de tous les appels possibles, la totalité de la procédure, étant la personne sous écrou extraditionnel, pourra aboutir plus ou moins 12 mois (détention+18+22+20+65/80+80+120).

Dans l’affirmative, veuillez préciser le délai.

En excluant les cas où l’extradition fut ajournée (art.19 CEE) l’article 60 de la Loi interne portugaise établit que la personne dont l’extradition fut décidée devra être remise dans un délai de 20 jours. Ce délai pourra, pourtant, être prolongée en 20 jours, pour les cas où l’État requérant n’envoie pas des émissaires pour assurer la remise; ce délai pourra être prolongé, encore, en cas de force majeure (maladie du détenu, par exemple).

ROMANIA – 20 Feb 2004

Dans l’affirmative, veuillez indiquer la durée maximale fixée.

Selon, la Loi no. 296/2001 sur l’extradition, et tenant compte des nouvelles dispositions de la Constitution roumaine et du Code de procédure pénale, la personne qui fait l’objet d’ une demande d’ arrestation provisoire en vue de l extradition doit être présentée au juge de la Cour d Appel compétente en maximum 24 heures. Le procureur peut seulement ordonner la mise en garde a vue pour 24 heures.

Selon l’article 33 de la Loi no. 296/2001 sur l’extradition, la demande doit parvenir aux autorités roumaines en maximum 40 jours depuis l’arrestation provisoire. En outre, la cour compétente peut mettre la personne en liberté si la demande d’extradition et les acte a l’appui ne sont reçues en 18 jours depuis la date de l’ arrestation. C’est en effet la disposition de l’ article 16 de la Convention.

3.Dès réception de la demande formelle d’extradition et en attendant une décision d’extradition, quelle est la durée maximale de détention de la personne concernée ?

6 mois, selon les nouvelles dispositions de la Constitution. La mesure doit être prorogée tout les 30 jours.

Dans l’affirmative, veuillez préciser le délai.

Oui. L’ article 45 - (5) de la Loi no. 296/2001 sur l’extradition prévoit :

« Sous réserve du cas prévu au paragraphe (6), si la personne réclamée ne sera pas reçue à la date fixée, elle pourra être mise en liberté à l’expiration d’un délai de 15 jours à compter de cette date; ce délai pourra être prolongé de 15 jours au maximum. »

Le paragraphe (6) du même article prévoit : « En cas de force majeure empêchant la remise ou la réception de la personne à extrader, l’État intéressé pourra en informer l’autre Etat. Les deux États se mettront d’accord sur une nouvelle date de remise, les dispositions du paragraphe (4) restant applicables. »

RUSSIAN FEDERATION – 27 Feb 2004

In the Russian legislation the issues of extradition are mainly regulated by the Code of Criminal Proceedings of the Russian Federation (2001), in particular, by the provisions of Chapter 54 «Extradition of the person for the purpose of criminal prosecution or execution of sentence». In addition, it should be taken into account that according to the Constitution of the Russian Federation (1993), Art. 15 international treaties of the Russian Federation are an integrative part of the Russian legal system and they have the priority over laws.

Does your national legislation provide for a maximum term for custody (e.g. by the police, customs or other administrative authority) pending the examination by a court of a request for provisional arrest? If so, please indicate the term.

The Russian legislation does not contain the notion of «provisional arrest». Therefore, persons sought by foreign states with the purpose of arrest and extradition may be detained for a term of 48 hours. After having received the document authorizing custodial detention of the person sought from the initiator of the search this person is retained in custody untill a request for extradition is received on the basis of the international treaty - e.g. the European Convention on Extradition (1957).

According to Article 466 of the Code of Criminal Procedure of the Russian Federation on receiving a request for extradition from a foreign state the decision regarding a measure of restraint in the form of custodial detention is taken by a court (if the requesting State did not submit the judicial decision on arrest) or by a prosecutor (if the requesting State submitted the judicial decision on custodial detention of the person sought).

In case of a request for provisional arrest under Article 16 of the European Convention on Extradition (ETS 024), what is the period provided for in your national legislation, within which the formal request for extradition is to be received, and failing which the person would be released?

In the Russian legislation there are no provisions providing for a maximum term for custody pending the request for extradition to be received. Therefore, the Russian Party in its practical work is guided by Article 16 of the European Convention on Extradition, according to which the persons arrested with the purpose of extradition are kept in custody up to 40 days from the date of their detention and are to be released in case of getting no requests for extradition.

Where the formal request for extradition has been received, but the decision on the extradition is pending, which time limit applies to the arrest?

The Russian legislation does not provide for a deadline for custodial detention applied to a person sought for extradition during the examination of a request for extradition.

Does your national legislation provide for a maximum term for custodial detention, which would apply to a person who has not yet been surrendered but whose extradition has already been decided upon? If so, please indicate the term.

The Russian legislation does not provide for a maximum term for custodial detention applied to a person who has not been surrendered to the requesting party but whose extradition has already been decided upon.

The time limit of custody of the person to be surrendered applies only to the procedures of his transfer to the requesting State. According to Article 467 of the Code of Criminal Procedure of the Russian Federation, if the person whose extradition has already been decided upon is not received within 15 days from the date fixed for his transfer, such person is be released from custody. This term may be prolonged by the Prosecutor–General or his deputy upon the well-founded request of the foreign State, but for a term not exceeding 15 days.

SLOVAKIA – 6 Feb 2004

The limits at this stage are not given as maximum term of custody by police (in this stage), but as limits for the authorities involved to do the next step. So, the prosecutor has 48 hours to apply to the court for provisional arrest. He can order the release of the person even before, but should he fail to apply, the person is free after 48 hours max.

The court has further 48 hours (if very serious crime is involved 72 hours) to rule on the application for the provisional arrest.

So, the maximum period of police custody is 96 hours/4 days (or if very serious crime is involved 120 hours/5 days).

The maximum period is 40 days.

3.Where the formal request for extradition has been received, but the decision on the extradition is pending, which time limit applies to the arrest?

There is no maximum period.

The maximum term is 60 days from the date of the decision granting extradition.

The period of 60 days shall be counted differently in cases where, at the time of submission of the extradition request, the person was already in custody in relation to a criminal proceeding conducted by Slovak authorities. In such a case the custody pending extradition is just a “support measure” for cases where the grounds for custody in relation to criminal proceedings in Slovakia cease to exist. Should that situation arise, the person is not set free, but goes automatically into custody pending extradition. Was the decision granting extradition given before the date of the commencement of custody pending extradition, the 60 day maximum period is then counted from the date of commencement of such custody.

SLOVENIA – 20 Feb 2004

Art. 525 of the Criminal Procedure Act applies. According to this provision, police must bring the person to the investigating judge "without delay". In any case, the maximum duration is 48 hours (Article 157 Code of Criminal Procedure). However, if the person is arrested by the police and not brought to the investigating judge in 6 hours after the arrest, the police have to serve him/her a written decision by which they inform him/her of the grounds on which he/she has been deprived of his/her freedom. Therefore, in practice the period in which the person is detained by police and brought before investigating judge is up to 6 hours. The investigating judge then hears the person and either releases him /her or orders detention (see answer to question number 2).

According to the Art. 525 of the Criminal Procedure Act of the Republic of Slovenia, the investigating judge orders detention of the foreigner for a period of maximum three months from the day the foreigner was detained. Investigating judge therefore determines the period in which the request for extradition should be received (at the same time it is the period of detention of the requested person) taking into consideration also the distance of the requesting country from Slovenia and this period may not exceed three months. In exceptional cases this period may be prolonged for another two months upon request of the requesting country. However, provisions of national legislation regarding the extradition of accused and convicted persons are used unless provided otherwise in the international agreement. Considering this and Art. 8 of the Constitution of the Republic of Slovenia, that provides for direct use of ratified and published international agreements, the period for provisional arrest for states parties to ETS 024 is 40 days.

3.Where the formal request for extradition has been received, but the decision on the extradition is pending, which time limit applies to the arrest?

According to Art. 524 of the Criminal Procedure Act investigating judge orders detention of the requested person if the formal request for extradition is complete and if conditions for detention that are determined in the general part of the Criminal Procedure Act exist. According to general provisions on detention, it should last the shortest necessary time. Also courts and all other authorities should decide on the matter with priority. There is no provision on the maximum period of detention in extradition procedure in the Criminal Procedure Act itself, but general provisions on detention (Art. 205 and 207) apply. According to them, maximum period for detention is two years and six months.

Slovenian national legislation does not provide for a maximum term for custodial detention, which would apply to a person who has not yet been surrendered but whose extradition has already been decided upon. In case the court of first instance establishes that legal preconditions for extradition, according to Art. 522 of the Criminal Procedure Act do not exist, the court may decide that the requested person should remain in custody until the court decision is final. If extradition of the person is allowed, again the general provisions on custody apply. As already stated in reply to question 3, maximum period for detention is two years and six months. Accordingly, interpretation of these provisions would mean, that in this period the whole procedure (deciding upon extradition and surrender of person should be carried out in these time limits).

SOUTH AFRICA – 27 Feb 2004

Provisional arrest is affected in terms of section 40(1)(k) of the Criminal Procedure Act, 1977 (Act 51 of 1977). No time periods are mentioned in this section.

Section 35(1)(d) of the Constitution of the Republic of South Africa provides that arrested, detained or accused persons should be brought before a court as soon as reasonably possible, but not later than 48 hours after the arrest.

After the 48 hour period has lapsed, article 7 of the extradition Act may come into play. Article 7 provides that a magistrate may issue a warrant for the further detention of any person arrested without warrant under any law of the Republic providing for the arrest without warrant of persons liable to be apprehended under any law relating to extradition.

Every accused person has a constitutional right to a fair trial which includes the right to have their trial begin and conclude without unreasonable delay. No specific time period is stipulated for detention pending the decision on extradition and it will depend on whether the delay is reasonable.

Any person against whom an order for extradition has been issued may within 15 days after the issue thereof appeal against such order. The person may during this period be released on bail.

SPAIN – 23 Feb 2004

1. Does your national legislation provide for a maximum term for custody (e.g. by the police, customs or other administrative authority) pending the examination by a court of a request for provisional arrest? If so, please indicate the term.

The Spanish Law, and specifically the Passive Extradition Law of March 21, 1985, establishes that when the police or other State Security Forces proceed to arrest a person claimed by an extradition proceeding, he should be taken into custody of the Examining Central Court in duty within a maximum term of twenty-four hours (articles 8, 9 and 11 of the above mentioned Law).

2. In case of a request for provisional arrest under Article 16 of the European Convention on Extradition (ETS 024), what is the period provided in your national legislation, within which the formal request for extradition is to be received, and failing which the person must be released?

Once the arrested person has been taken into custody of the Court, when the proceeding is started by urgent request of provisional arrest (articles 8 and 10 of the Passive Extradition Law) and given the right conditions, the Court will order the provisional arrest for a period of forty days, after which the person should be released if the requesting country fails to present an extradition request in due form. When the extradition request is presented within the above term of forty days, the Judge will extend forty days the arrest ordered, so that the Ministry of Justice and the Spanish Government can adopt by Decision of the Counsel of Ministers whether the extradition proceeding should continue by judicial means. Should the Decision not be adopted within the above term, the Judge should release the person.

3. Where the formal request for extradition has been received, but the decision on the extradition is pending, which limit applies to the arrest?

The maximum term for the provisional arrest is provided in article 504 of the Criminal Procedural Act, Law specifically mentioned in the last paragraph of article 10 of the Passive Extradition Law. For the calculation of the maximum period of the provisional imprisonment, the above-mentioned article 504 takes into consideration the penalty corresponding to the crime involved and the aims pursued with the measure. In any case and for the most serious hypothetical case legally established it could never be longer than five years (an initial period of three years plus an extension of two more).

Article 504 itself provides as follows: “Once the accused has been found guilty, the provisional imprisonment shall be able to be extended up to the limit of half the penalty imposed in the judgment when this has been appealed against”.

4. Does your national legislation provide for a maximum term for custodial detention, which would apply to a person who has not yet been surrendered but whose extradition has already been decided upon? If so, please indicate the term.

The Passive Extradition Law does not expressly provide for a maximum term for custodial detention to be applied to a person whose extradition has been decided upon. Article 19 of said Law establishes that in that case the custodial detention will be carried out by the Spanish authority, previous notice on the place and date set, and according to the national legislation in force on the matter. The place and the date set for the custodial detention will be noticed to the Court making the request.

The said Law does impose that if the person claimed is not received on the place and at the date set, he or she could be released after fifteen days from that date and, necessarily, after thirty days, and that if the extradition for the same crime is requested again, it could be refused.

SWEDEN – 19 Feb 2004

1. In the Swedish Extradition for Criminal Offences Act no explicit maximum term for custody pending the examination by a court is fixed. However, an order for the use of coercive measures (e.g. arrest) shall be reported without delay to the court, which, following a hearing, shall expeditiously examine the measure. (Section 23)

2. The Minister for Justice sets the time limit for submitting an extradition request. This period may not exceed forty days from the date on which the person was arrested or ordered not to leave the assigned place of residence or required to report to the police authority. (Section 23)

As a general rule, the period set by the Minister for Justice is thirty days.

3. If a person arrested is not released when the request for extradition is received, an application for his or her detention shall be filed with the court not later than the eighth day after that on which the Prosecutor-General was notified of the extradition request (Section 23). The starting point for the determination of the time limit is, accordingly, the day on which the Ministry of Justice requests an opinion on the matter from the Prosecutor general (Section 15).

There is no specific period within which the Government must take a decision on the request for extradition. However, a person who is detained in an extradition case may request a new court hearing within three weeks from the date of the last decision. (Section 16)

4. If extradition is granted, a period of time shall be set within which the foreign state shall collect the person to be extradited. The period fixed may not, other than in exceptional circumstances, exceed one month from the date on which the requesting state was informed of the decision. (Section 23)

SWITZERLAND – 18 Feb 2004

En Suisse, l'extradition est – comme tout les modes de coopération internationale en matière pénale – régie par la loi fédérale sur l'entraide internationale en matière pénale du 20 mars 1981 (ci-après: EIMP), pour autant qu’une question ne soit pas réglée dans un traité d’extradition. Les articles 32 à 62 de cette loi règlent les conditions et la procédure d'extradition.

L'Office fédéral de la justice, qui est l'autorité compétente en matière d'extradition, ordonne l’arrestation d’une personne poursuivie sur la base d’une demande d’arrestation provisoire en vue d’extradition. En vertu de l'article 50 EIMP, l’Office fédéral de la justice ordonne l'élargissement de la personne poursuivie 18 jours après son arrestation, si l'Etat requérant n'a pas remis la demande d'extradition et ses annexes. Ce délai peut être porté à 40 jours, si des raisons particulières le justifient.

La personne poursuivie a le droit de demander en tout temps d'être mise en liberté et peut recourir contre le mandat d’arrêt en vue d’extradition émis par l'Office fédéral de la justice.

En matière d'extradition, il n'existe en Suisse pas d'autre forme de privation de liberté que l'arrestation provisoire de la personne recherchée en vue de son extradition. L'arrestation est ordonnée par l'Office fédéral de la justice à Berne.

En revanche, dans une procédure suisse, une personne soupçonnée concrètement d'avoir commis une infraction peut être appréhendée par la police et conduit au poste de police où celle-ci peut faire l'objet d'une arrestation provisoire - également appelée garde à vue. La personne est ensuite entendue et confrontée aux charges qui pèsent sur elle, ce qui peut facilement prendre plusieurs heures. L'une des caractéristiques de cette arrestation provisoire réside dans le fait qu'elle n'intervient généralement qu'à l'initiative et sous la responsabilité de la police, c'est-à-dire sans qu'un mandat d'arrêt ne soit délivré par une autorité judiciaire. Dans un sens plus strict, on peut considérer l'arrestation provisoire comme la phase de privation de liberté au cours de laquelle la police arrête une personne puis, au terme de ses premières investigations, la relâche ou, au contraire, la met à disposition du ministère public.

18 jours après l'arrestation. Dans des cas particuliers, ce délai peut être porté à 40 jours.

Dès réception de la demande formelle d’extradition et en attendant une décision d’extradition, quelle est la durée maximale de détention de la personne concernée ?

L'article 51 EIMP précise que la détention est maintenue de plein droit pendant toute la procédure d'extradition, si la demande et ses annexes parviennent à temps et que l'extradition n'est pas manifestement inadmissible.

Le droit suisse ne connaît pas de réglementation spécifique concernant la durée de la détention extraditionnelle. Toutefois, il existe une obligation de célérité. Selon l'article 17a EIMP, les autorités suisses doivent traiter toute demande de coopération internationale avec célérité et statuer sans délai.

L'article 54 EIMP permet une procédure simplifiée, lorsque la personne poursuivie accepte de renoncer à la procédure d'extradition, selon un procès-verbal dressé par une autorité judiciaire. Dans ce cas, la personne est remise à l'Etat requérant, dès que l'Office fédéral de la justice a autorisé la remise.

En vertu des articles 56 et 57 EIMP, l'extradition est exécutoire si, dans les 5 jours à compter de la notification de la décision d'extradition, la personne poursuivie n'a pas déclaré vouloir recourir (ou lorsqu'un recours éventuel a été rejeté ou que le délai de recours a expiré sans avoir été utilisé). Il en va de même pour la procédure simplifiée si la personne poursuivie demande expressément à être remise sans délai.

Une fois la décision d'extradition entrée en force, l’Office fédéral de la justice prend les mesures nécessaires en vue de la remise de la personne poursuivie. Il communique la décision à l'Etat requérant et lui fait connaître le moment et le lieu de l'exécution.

Aux termes de l'article 61 EIMP, la personne poursuivie est mise en liberté si, dans un délai de 10 jours qui suivent la réception de l'avis relatif à l'exécution de l'extradition, l'Etat requérant n'a pas fait le nécessaire pour prendre la personne en charge. Ce délai peut être porté à 30 jours sur demande motivée de l'Etat requérant.

“THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA”

28 Feb 2004

Article12 of the Constitution of the Republic of Macedonia. (“Official gazette of RM”N.52/22 November 1991):

No person’s freedom can be restricted except by a court decision or in cases and procedures determined by law…

Persons detained shall be brought before a court as soon as possible, within a maximum period of 24 hours from the moment of detention, (e.g. by the police) and the legality of their detention shall there be decided upon without delay.

Detention may last, by court decision, for maximum period of 90 days from the day of detention.

Amendment III to the Constitution of the Republic of Macedonia:

This amendment is part of the Constitution of the Republic of Macedonia and it is acting starting with the day of its proclamation (“Official gazette of RM”N.31/2 July1998).

1.Until the indictment, pre trial detention can last, by a court decision, a maximum of 180 days. After the indictment, detention pending trial can be prolonged in a manner and in procedure providited by law.

2.This amendment is replacing paragraph 5 of article 12 of the Constitution of the Republic of Macedonia.

CODE OF CRIMINAL PROCEDURE, (“Official Gazette of RM”N.15/3April 1997

Art.183prg.1.

Pre-trial detention may be determined only under conditions anticipated by the Code of Criminal procedure.

Art.185.prg.1.

The investigating judge of the competent court determines the pre-trial detention.

Prg.4.

The decision for pre-trial detention is delivered to the person to whom it refers at the moment of his depriving from freedom, and at the most within 24 hours from the hour of his arrest. For the record it must be notified the hour of the arrest and the hour of the delivery of the decision.

Art.186.prg.4

The investigating judge will decide whether the arrested person will be released immediately after the eximination. If he considers that the arrested should be kept, the investigating judge will immediately inform the public prosecutors, if the public prosecutor has not already submitted a request for investigation. If the public prosecutor within 48 hours from the time when he was informed of the pre-trial detention does not request investigation, the investigating judge will release the arrested.

Art.189

The pre-trial detention may last not more than 90 days on the decision of the court since the day of the detention.

On the basis of the decision of the investigating judge, the accused can be detained for 30 days at the most since the day of his arrest. After that period the accused can be further detained only on the basis of a decision for prolonging of the pre-trial detention may be prolonged for a most 60 days. An appeal, which does not keep from execution of the decision, is allowed against the decision of the Chamber.

Procedure for extradition of accused and convicted persons

Art.513

In emergencies, when there is a danger that the foreigner might abscond of hide, the Ministry of Internal Affairs may arrest the foreigner to be delivered to the investigating judge of the competent court on the basis of the application of the competent foreign agency, with reference how it is directed…

When detention is determined in reference of paragraph 1 of this Article, after the examination, the investigating judge will inform of the detention the Ministry of External Affairs by the Ministry of justice.

The investigating judge will release the foreigner when the reasons for detention cease to exist, or if the application for extradition is not submitted within the period which he has determined, taking into consideration the distance of the country which requests for extradition, but which cannot be longer than 40 days from the day when the foreigner was detained, and the term for delivered the foreigner cannot be longer than 180 days.

TURKEY – 20 Feb 2004

1- Turkish legislation does not cover specific law on extradition. However, it provides in Article 90 that the international treaties when ratified becomes internal part of the national legal system and directly enforceable under Turkish law. Accordingly the Convention and the internal provisions would be both applicable for provisional arrest in Turkey.

In respect of incoming provisional requests made pursuant to Article 16/4 of “the European Convention on Extradition”, the Ministry of Justice sends the request to the competent Public Prosecutor’s Office who orders the local Police to arrest the fugitive. Fugitive must be brought before the competent court within 24 hours (Article 128 Criminal Penal Code and Turkish Constitution).

2. After the decision of the competent court for provisional arrest time limits namely, 18/40 days, specified in Article 16 of the Convention is taken into consideration while evaluating the duration of the arrest or detention. If all the documents mentioned Article 12 is not sent by requesting State 18/40 days, Court will release the accused. Maximum period for detention in such a case is 40 days.

3. If the formal request for extradition has been received, there is not a specific time limit for arrest. However, the term provisional arrest is reviewed every 30 days beginning from the provisional arrest and in proportion with the term of imprisonment for the concerned offence or the sentence given to the requested person the competent court may decide to extend the duration of the provisional arrest or release the fugitive.

4. In our extradition practice the requested person is kept in prison till he or she is surrendered to the requesting authorities. When the time for surrender is agreed, the concerned person is taken from prison and brought the authorities of the requested party on that day. In practice custodial detention does not reveal any problem since the concerned person is surrendered to the requested party within maximum 24 hours after taken from the prison.

UNITED KINGDOM – 23 Feb 2004

Does your national legislation provide for a maximum term for custody (e.g. by the police, customs or other administrative authority) pending the examination by a court of a request for provisional arrest? If so, please indicate the term.

For those territories operating the EAW (European Arrest Warrant) - Belgium, Finland, Ireland, Portugal, Spain, and Sweden - a person who is provisionally arrested must be brought before an appropriate judge within 48 hours from the time of the person’s arrest.

For those territories that are not operating the EAW, the person must be brought before the court as soon as is practicable after their arrest.

In case of a request for provisional arrest under Article 16 of the European Convention on Extradition (ETS 024), what is the period provided for in your national legislation, within which the formal request for extradition is to be received, and failing which the person would be released?

Under Article 16 of the European Convention Extradition the maximum period is 40 days. Under the new Extradition Act 2003 the formal request from a territory operating the EAW must be received before the 48th hour starting with the time when the person is arrested. The formal request from a territory not operating the EAW must be received before the 45th day starting with the day on which the person was arrested.

Where the formal request for extradition has been received, but the decision on the extradition is pending, which time limit applies to the arrest?

A time limit cannot be usefully applied under our domestic legislation (Extradition Act 2003), as our provisions for both EAW operating territories and non-EAW countries stipulate that the process is challengeable through the appeal courts up to the House of Lords.

Does your national legislation provide for a maximum term for custodial detention, which would apply to a person who has not yet been surrendered but whose extradition has already been decided upon? If so, please indicate the term.

For EAW operating territories the person must be extradited from the UK to the requesting territory before the end of 10 days starting with the day on which the Judge makes the order for extradition; or a later date if agreed by him; or when the decision of the appeal court becomes final; or the proceedings on the any appeal are discontinued; or a later date is agreed between the requesting territory and the appeal court (starting with whichever is the later date).

For non-EAW territories, the person must be extradited from the UK to the requesting territory before the end of 28 days, starting with the day on which the Secretary of State makes the order for extradition; or starting with the day on which the decision of the appeal court becomes final or the day on which proceedings on the appeal are discontinued.

[1]

ALBANIA

in this time the prosecutor shall bring the person before a court in the territory of the place of arrest (article 495);

[2] from the time of arrest: in this time time the request for extradition must be sent to the Ministry of Justice;

[3] from the date of arrest, otherwise the person is released (article 494); the provision implements article 16.4 of European Convention on Extradition.

[4] from the time the request for extradition has been received; in this time the prosecutor has to submit the request to the court. Apart from this, there is no time limit for the arrest. (article 492)

[5] from the date of the final decision on the extradition: in this time the Minister of Justice must decide the date for surrendering the person, otherwise the person is released. The Minister of Justice informs the requesting state of the place and date of the surrender of the person;

[6] from the date of the final decision on the extradition: within this time limit -which can be extended of an additional 15 days, at the demand of the requesting state - the latter shall recover the person. If the requesting state does not recover the person within the agreed time limit, then he/she shall be released. If the request for extradition is rejected the person shall be released. (article 499);

ANDORRA

[7] The Andorran Law on Extradition of 28 November 1996 does not provide for any detention when a request for provisional arrest has been made. This law establishes that under all detention cases, the person sought for extradition is to be presented before the judge (batlle) who can order the provisional arrest and transmit the decision to the ‘Tribunal de Corts’ (the original criminal jurisdiction).

[8] from the day of the arrest: within this time the President of the ‘Tribunal de Corts’ can terminate the provisional arrest, if the request for extradition and its supporting documents required by the law have not been submitted to the Andorran Government.

[9] from the day the decision for the provisional arrest was made and the receipt of the file for the request for extradition by the competent ‘Tribunal de Corts’: this time represents the maximum duration of the arrest

[10] There is no maximum period for arrest pending the decision on the extradition, but the person can, from the day he/she was placed under arrest and throughout the procedure, request to be released from prison in accordance with the Code of Criminal Procedure.

[11] from the day the executory decision for extradition was transmitted to the requesting State: after the lapse of this time limit the person must be released, if he/she has not been taken over.

ARMENIA

[12] Not regulated by law, but in practice it is not more than 30 days

AUSTRIA

[13] Within 48 hours the arrested person must either be released (if there are not sufficient reasons to continue the detention) or transferred to the competent court, which must rule within another 48 hours as to whether the person should be placed in detention for extradition.

[14] This time limit may be extended to a maximum period of 1 year, if particular difficulties or the volume of the proceedings so require and if the offence underlying the request for extradition is a crime pursuant to the Austrian Penal Code (punishable with more than three years of imprisonment).

[15] No time limit provided for by the national legislation (apart from provisions relating to the operation of the European Arrest Warrant). In practise the time limits in article 18 para 4 of the European Convention on Extradition are also observed in relation to States where special international instruments are missing or do not contain a relevant provision.

AZERBAIJAN

[16] Passed which, if the prosecuting authority of the Republic of Azerbaijan has not received a formal request for extradition (Article 497.1 of the Criminal Procedure Code), a person in custody under Article 495.3 of the CCP shall be released.

If a person is in custody under Article 495.1 of the CCP, he/she shall be released before a decision on the extradition has been made if the prosecuting authority decides that an extradition is not possible or is refused.

[17] From the date of the arrest, as provided for by the European Convention on Extradition under article 16, if it the extradition case is regulated by it.

[18] From the date of the arrest, as provided for by Article 7.4 of the Law on Extradition of the Republic of Azerbaijan, if the extradition case is not covered by the European Convention: time passed which, the person who has been arrested under Article 7.1 is released if the Republic of Azerbaijan has not received the request for extradition or the documents stated in Article 5.

[19] Maximum time of prolongation of the period, to be calculated from the day on which the request for provisional arrest was received, granted if necessary at the demand of the requesting state

[20] There is no time limit expressed in the legislation

[21] The prosecuting authority of the Republic of Azerbaijan who is dealing with the request for extradition shall notify the competent authority of the requesting state of the date and place of the surrender. If the competent authority of the requesting state does not take over the person within 15 days from the fixed date of the surrender, the person shall be released.

BELGIUM

[22] there is no time limit expressed in article 5(1) of the Law on Extraditions of 15 March 1874

[23] as provided for by article 5(2) of the Law on Extraditions of 15 March 1874

[24] the Law on Extraditions of 15 March 1874 does not set a maximum duration of detention

[25] there is no maximum time limit of detention expressed in the Law on Extraditions of 15 March 1874. This time limit is nonetheless conditioned by the availability of the police in charge of the surrendering/return of the person. In practice, with regard to individual cases, the total period of detention for extradition (from the moment of provisional arrest until the surrendering of the person to the requesting state) rarely reaches 1 year.

BULGARIA

[26] if the order has been instructed by an investigating body (article 152 a, paragraph 3, sentence 2 of the Bulgarian Criminal Proceeding Code)

[27] if the remand in custody is ordered by the prosecutor (article 152 a, paragraph 3, sentence 2 of the Bulgarian Criminal Proceeding Code)

[28] implements Article 16, paragraph 4 of the European Convention on Extradition. Terms of bilateral contracts on legal aid are between 18 days and 3 months.

[29] this time limit is determined by a court in session

[30] if the requesting state fails to take over the person within one month from the arranged date of delivery, the person shall be released, and the delivery of the same person on the same grounds could be rejected (article 440 d, paragraph 3 of the Bulgarian Criminal Proceeding Code)

CANADA

[31] an arrest can only be made on the basis of a warrant for provisional arrest. If there is no such warrant then a person cannot be held in custody. Thus a warrant for provisional arrest is issued once a request for extradition has been received (Article 12 and 13 of the Canadian Extradition Act).

[32] whether any of Canada’s extradition agreements applies, and according to them; this is the time limit within which the request for extradition and its documents are received.

[33] in the absence of an extradition agreement, or if the agreement does not express a time limit for this period of the process (article 14 (1) of the Extradition Act).

[34] there are no terms defined in the Extradition Act

[35] from the time the order for surrender was made by the Minister or from the final decision of the court regarding an appeal. If the person is not taken over within 45 days, then the judge of the superior court of the province where the person is detained can order the person to be released from custody, if there are no other circumstances to prevent his/her release (Section 69 of the Extradition Act)

CROATIA

[36] as provided by the Croatian Procedure Act the police custody may last up to 24 hours. This arrest may only be enforced by a written order by the investigating judge if it is established that there is a degree of suspicion that the arrested person is a suspect of the offence committed and if the person may have escaped. Provisional confinement is a means to ascertain the identity, alibi, collect date for evidence, or remove any danger the person may cause to persons or property of significant value.

[37] as provided by the Croatian Criminal Procedure Act he term is - set by the judge If the request for extradition is not received within the time limit that the judge set, which shall not, under any circumstances, exceed 3 months from the date of such an arrest, or if the grounds for the arrest are no longer valid, then the judge will release the person. The Croatian Criminal Procedure Law does not recognize the difference between the process for the provisional arrest in cases of urgency and the regular extradition procedure.

[38] as provided for by the European Convention on Extradition. Note that conventions are regarded as part of national legislation, and so the time limit of 40 days is usually implemented.

[39] The Croatian Criminal Procedure Law does not set a time limit

[40] the Croatian Criminal Procedure Act does not set a time limit, so Article 18 of the European Convention on Extradition applies.

CYPRUS

[41] national legislation requires that once the arrest of a person awaiting the reception of the request for extradition and the Minister of Justice has issued the Authority to continue with the process, the Court may set a reasonable time for the detention of the person (Article 9.4 Law No 95/1970) which in accordance with Article 16 of the European Convention on Extradition cannot surpass 40 days.

[42] national legislation requires that once the arrest of a person awaiting the reception of the request for extradition and the Minister of Justice has issued the Authority to continue with the process, the Court may set a reasonable time for the detention of the person (Article 9.4 Law No 95/1970) which in accordance with Article 16 of the European Convention on Extradition cannot surpass 40 days.

[43] there is no time limit

[44] from the day the decision was issued, in accordance with Article 12(b) of ‘The Extradition of fugitive offenders Law of 1970’

[45]

to be in any case abided, beginning from the first day the person is permitted to be extradited, according to Article 12(a) of the said Law

CZECH REPUBLIC

[46] according to § 395 (1) of the Criminal Procedure Code)

[47] within this time the person must be brought before a judge to decide on whether to remand the person in custody or release him/her. This decision must be made within succeeding 24 hours. If these time limits are not adhered to this leads to the person’s release.

[48]

As provided for by Article 16 of the European Convention on Extradition, which in fact Czech legislation implements. Thus the person would be released if a formal request for extradition has not been received within 40 days.

[49] possible prolongation up to 6 months (according to § 400b (4) of the Criminal Procedure Code)

[50]

ESTONIA

during this time the person should be taken before a court for a decision to be made regarding the arrest, as provided for by the Estonian Constitution and Criminal Procedure Code

[51]

provisions of Article 402 of the Estonian Criminal Procedure Code implement article 16 of the European Convention on Extradition

[52]

note that there is no set duration for the detention of the person once the request for extradition has been received. One year is the basic principle applying to any kind of arrest, according to which the maximum duration of an arrest is 12 months.

[53]

Again, there is no set time limit once a decision has been made, and the basic principle of no more than 1 year will be applicable.

[54]

FINLAND

No specific term is given in the Extradition Act. The only specification is that the police have to notify the court ‘promptly’ when they have taken a person into custody (Chapter 19 Extradition Act). Nevertheless, in practice the definition of ‘promptly’ could be no more than up to the third day by noon as maintained by provisions regarding custody according to the Coercive Measures Act.

[55]

The day the requesting state is sent the notice of the enforcement of the provisional arrest, the Ministry of Justice will fix a term that shall not exceed 30 days, and under special circumstances can be 45 days.

[56]

no terms specified

[57]

Once the requesting state receives notification of the decision, the Ministry of Justice will fix a term that shall not surpass 1 month, and any certain circumstances shall not exceed 2 months.

[58]

FRANCE

An arrested person shall be presented before the public prosecutor within 48 hours so that a ruling can be made regarding his/her placement under detention for extradition. The litigation for the release of the person, if the case arises, is brought before the Chamber of instructions. Article 696-10 of the draft justice Bill addressing new trends in crime reduces the time limit to 24 hours before being brought before the public prosecutor.

[59]

The French legislative clauses establish a time limit of 40 days from the day of the arrest, to receive a formal request and the original supporting documents for extradition from the requesting state. If the request has not been received or is incomplete, the person can be released, without prejudice to a subsequent re-examination of the request and placed again under the detention for extradition.

[60]

There are no time limits for the duration of the detention of a person for extradition after the receipt of the formal request for extradition. The draft justice Bill addressing new trends in crime makes provisions for decreasing the period of the preliminary investigation of the request for extradition, by distinguishing whether the extradition request is applied by a member of the European Union or a non-member state, and in accordance with the consent for the extradition given by the requested person.

[61]

If the person has not been taken over by the authorities of the requesting state within 1 month from the day of the decree authorizing the extradition, he/she is released and cannot be pursued for the same acts (article 18, Law of 10 March 1927). The draft justice Bill addressing new trends in crime, which revokes and replaces the law of 1927, takes this same provision and codifies it under Article 696-18 of the Code of Criminal Procedure.

[62]

GERMANY

Article 104, section 2 of the Code of Criminal Procedure provides that “Only a judge may rule upon the permissibility or continuation of any deprivation of freedom. If such a deprivation is nit based on a judicial order, a judicial decision shall be obtained without delay. The police may hold no one in custody on their own authority beyond the end of the day following the arrest.

[63]

if it is a treaty-based extradition, when then article 16 para. 4 of the European Convention on Extradition is applied

[64] for non-treaty based extraditions. In this case the deadline for receiving the extradition documents is regulated by the Act on International Legal Assistance in Criminal Matters section 16, subsection 2, which sets a deadline of 2 months. If a request for the provisional arrest has been made by a non-European state then the deadline shall be 3 months.

[65]

there are no defined time limits. The principle of necessity and proportionality conditions the period of detention.

[66]

the legislation does not define a time limit, but the surrendering of the person must occur without delay, ie without a responsible delay. Blameworthy management by the requesting state with regard to a quick handing over may result in the person being released.

[67]

GREECE

The person arrested after an obvious crime shall be handed over to the Prosecutor within 24 hours, who then passes on the case to the preliminary investigation judge, who makes a decision concerning arrest and provisional arrest (Articles 275, 279 and 283 of the Greek Code of Criminal Procedure, hereafter CCP).

[68]

Provisional arrest is ceased if within 1 month after the arrest the request for extradition has not been received (Article 445 para. 3 of the CCP). The CCP is applied unless an international treaty provides otherwise.

[69]

Within 24 hours from the reception of the request for extradition and its documents, a request for (provisional) arrest shall be sent to a Judicial Council of Appeal (Article 448 para. 1 of the CCP). The Judicial Council may, upon the particular request of the Prosecutor or of the person sought, reschedule the discussion of the case; this postponement can be a maximum of 8 days (Article 449 para. 1 of the CCP). In any event, provisional arrest should be ceased within 2 years from the day of the arrest, if the person has not been extradited. The consequential release of the person could be delayed for 6 months by a decree of the competent Judicial Council (Article 452 para. 2.1 of the CCP).

[70]

After the decision on the extradition the person should either be handed over within 2 months after the decision has been communicated to the requesting state, or released (Article 452 para. 2.2 of the CCP).

[71]

HUNGARY

Police, Interpol or border police can place the requested person in custody for up to 72 hours, and take steps for the person to appear before the Court in Budapest (Art. 19.1 and 25.1 Law XXXVIII of 1996 on cooperation in criminal matters)

[72]

Provisional arrest must cease 40 days after the order for provisional arrest, if the formal request for extradition is not received (Art. 25.1 Law XXXVIII of 1996 on cooperation in criminal matters). In the case where the person is under provisional arrest, the first day of his arrest pending extradition is the day when the Ministry of Justice is submitted with a formal request for extradition. In this situation, the length of the provisional arrest will be until an extradition order. (Article 22.3)

[73]

The maximum time a person can be arrested for the purpose of extradition is 6 months, which can be extended once for up to 6 months

[74]

If an extradition is applied with the intent to sanction a prison sentence or the deprivation of liberty, then the duration of the arrest for extradition cannot exceed the length of the intended penalty. (Article 22.1)

If an arrest for extradition coincides with the persons’ request for refugee status or an asylum proceeding currently taking place, then the length of time is longer. If the request for asylum has been rejected the duration of the provisional arrest and arrest for extradition (in the case of a simplified extradition), extends so that he remains at least 40 days after the rejection of the request for asylum so that a decision can be made on the extradition of the person and his delivery. In this case, the length of the arrest for extradition and provisional arrest (in the case of a simplified extradition) cannot exceed 24 months from the beginning of the arrest for extradition or the provisional arrest, respectively (article 14.3).

[75]

No terms specified; see rules stated under footnote no. 70.

[76]

IRELAND

A person cannot be arrested until a provisional arrest warrant is issued by the High Court

[77]

Once a person is arrested following a provisional arrest warrant, the court, at its discretion, will either remand the person in custody or on bail. If a formal request for extradition is not received and certified by the Minister of Justice, Equality and Law Reform within 18 days, the person will be released.

[78]

The person pending extradition is treated in the same light as if he/she was charged with a chargeable offence, meaning the High Court judge has the power to remand the person in custody or release the person on bail, awaiting the decision on the extradition.

[79]

A person can remain in custody for a maximum of 15 days from the moment the Court Order regarding the extradition has been made and the surrendering of the person.

In general, throughout the procedure, a person sought for extradition could be released on bail or remanded in custody, depending on the judgment of the Court, if the conditions are those stated under section 4.2 of the Constitution (a provision on the complaint procedure to the High Court by or on behalf of any person claiming the unlawful detainment of the person).

[80]

ISRAEL

The Attorney General or his delegate, or a high-ranking Israel Police officer may order the arrest of a fugitive, who must then be brought before the Magistrates Court within 48 hours (section 6 of Israel’s Extradition Law 5714-1954)

[81]

The Magistrates Court may prolong the duration of the provisional arrest for up to 20 days, which may be prolonged by the court on the request of the Attorney General. The maximum duration of the arrest will not exceed 60 days, unless the formal request for extradition has been received. Once a formal request has been received, the Attorney General may request an additional duration of up to 10 days for the arrest (thus up to a total of 70 days). Within this time a request for the extradition must be presented to the District Court. (Section 7 of Israel’s Extradition Law)

[82]

The District Court decides whether the requested person is extraditable or not. While the decision is being made, the arrest shall be applicable until the court gives its decision. Thus, there is no time limit; however as a general rule extradition cases should be conducted rapidly. (Section 5 of Israel’s Extradition Law)

[83]

Once a decision to extradite the person has been made final, he/she must be extradited within 60 days. If this does not occur the decision for extradition is null and void. However, if there are circumstances delaying the handing over of the person, this term may be extended on the request of the Attorney General and the State Attorney. (Section 19 of Israel’s Extradition Law)

[84]

LATVIA

As provided for by article 492 (1) of Latvian Criminal Procedure Code

[85]

Maximum 40 days for provisional arrest, which includes the 72 hours of custody [article 494 (3)]. If after 18 days of provisional arrest there has been no information as to a request for extradition or the reason of its delay, provisional arrest can end [article 494 (4)]. In practice the request for extradition is sent early to enable the court to make a decision before the 40 days.

[86]

Arrest cannot exceed 1 year from the time of custody until the surrender of the person [article 495 (4)]. However, if the sentence that the requesting state will sanction is less than 1 year then the term of arrest cannot exceed this term of punishment.

[87]

No terms specified, see for reference footnote no. 82

[88]

LIECHTENSTEIN

within this time the person is either released if there is no cause to remain in custody, or he/she is transferred to the investigative judge (article 9 of the Liechtenstein “Law of 15 September 2000 on International Mutual Assistance in Criminal Matters (Legal Assistance Law)” which refers to the Code of Criminal Procedure (“Strafprozessordnung, StPO” and § 129 para. 2 StPO)

[89]

A time limit as to the receipt of a request for extradition is to be determined, and if no request has been received by this time, the Ministry of Justice has to inform the Court (article 28 (1) in the Legal Assistance Law). In practice, the terms of article 16 (4) of the European Convention on Extradition are applied by the authorities.

[90]

The length of the provisional arrest must not exceed 6 months, however with regard to the actual scope of the proceedings or the presence of particular problems and if the offence committed by the person to be extradited is a crime the Court of Appeal can decide, at the demand of the Judge of the Princely Court or Public Prosecutor’s Office, that the provisional arrest may go up to 1 year (article 24 (4) of the Legal Assistance Law).

[91]

Once a decision has been made to extradite the person, there is no more time limit to extradite the person (article 138, para. 2 (last sentence) of the Code of Criminal Procedure and article 29, para. 4 (last sentence) of the Legal Assistance Law).

[92]

LITHUANIA

A person can be arrested by a pre-trial investigation officer or a prosecutor for no longer than 48 hours. During this time the person shall be brought before a court in light of the intention for provisional arrest.

[93]

if the European Convention on Extradition (article 16) is to be applied. See article 72 of the Code of Criminal Procedure of the Republic of Lithuania, which states that it adheres to the provisions of international legal instruments it is a party to.

[94] if article 127 of the Code is to be applied, there-is-to-say, when an international agreement does not indicate a time frame (see footnote no. 89 for reference also). Article 127 of the Code states that the pre-trial judge who ordered the provisional arrest will set a maximum length of 6 months (3 months and extension of 3 months) due to a great complexity or large scope of the case, but this extension cannot be longer than 3 months. The extension may be repeated, but during the pre-trial investigation it may not be prolonged for more than 18 months or 12 months for juveniles.

[95]

There is no term under the Code of the Criminal Procedure of the Republic of Lithuania in which a decision on extradition is to be made. Thus this period of arrest and its prolongation is determined according to article 127, see footnotes no. 89-90 for reference.

[96]

This term shall be established by the international legal instruments that Lithuania is a party to (Article 76 of the Code of Criminal Procedure). The provision therefore adhers to article 18 of the European Convention on Extradition.

[97]

LUXEMBOURG

A person sought for extradition and who has been arrested by law officers can be kept in detention by an enquiry officer for 4 hours at the most. This is the maximum time limit provided for by the law for verification of identity (Article 45 of the Criminal Investigation Code ).

During this time, the Prosecutor must make a request to the investigating judge for ordering a provisional arrest warrant. Following the issue of the warrant, the arrested person can be transferred to the remand prison, but he/she must be informed about the warrant, preferably before the transfer to the prison, if not at the most within the 24 hours from his/her arrest. Or if an provisional arrest warrant was made prior to the person’s arrest, the mandate is presented to the person at the time of the arrest or at the most within 24 hours from the arrest (Article 12 Constitution of Luxembourg).

The person before the District Court in a closed session may ask to be released at any moment during the extradition proceedings under certain conditions defined under Article 20 para.5 of the Extradition Law.

[98] The Extradition Law of 20 June 2001, which replaces the Extradition Law of 13 March 1870, provides that the provisional arrest can terminate if Luxembourg has not received a request for extradition with its supporting documents required by Article 15(ie decision establishing a violation, arrest warrant, statement of facts, description of the sought person, etc…) within 18 days after the arrest, (Article 20 para. 4 …).

Under no circumstances can the provisional arrest surpass 45 days after the arrest.

[99]

Once the person sought for extradition has been informed about the request for extradition and its supporting documents, the provisional arrest finishes and the person is placed under the detention for extradition, which does not have a maximum time limit.

[100]

There are no terms under the Extradition Law for this period of the extradition process.

[101]

MALTA

in which he/she is either released or brought before a Court. Note that no-one can be arrested without a provisional arrest warrant being issued by a Court.

[102]

There are no terms specified for the time limit in which a formal request is to be received. Yet, once a request is received the court decides on a time limit, which does not generally exceed 1 month, in which an authority to proceed is obtained from the Minister. If an authority to proceed is not granted then the Court shall release the person.

[103]

There are no terms specified. However, the procedure for the deliberation of the request at first instance cannot surpass 6 months. Should there be an appeal, there is no time limit for the ending of the appeal process and the person is remanded in custody throughout the appeal process.

[104]

Once a decision for extradition has been made there is a time limit of 2 months. If the person has not been surrendered within this time, he/she may apply and request a discharge at the Court of Criminal Appeal. If the Minister has released a warrant for the person’s return and the person has not been returned within 1 month from the date of the warrant, the person may apply for a discharge at the Court of Criminal Appeal. If the Court is assured that the Minister has been given sufficient notice of the person’s appeal, the court may order the discharge of the person from custody and make void any warrant that may have been delivered for the return of the person.

[105]

MOLDOVA

Police custody can be no longer than 72 hours in the place and conditions stipulated by the law (Chapter I, al. I ‘Police Custody’ of the Code of Criminal Procedure of the Republic of Moldova).

[106]

The arrested person will be released after 18 days starting from the day of the arrest if the authority who must decide on the admissibility of the arrest, does not receive the request for extradition and the necessary documents (Article 547, al. (3)).

[107] In an emergency the person sought for extradition can be detained in accordance with an arrest warrant for a period of 18 days, and under no circumstances will this period be longer than 45 days, if the requesting state or the national authority has requested the arrest and if the request includes the facts of the arrest warrant or the definitive arrest adopted with regard to this person and the assurance that the request for extradition will be sent later (Article 547, al (2)).

Notwithstanding this, the provisional release of the person is possible at any moment under the condition that other measures can be made with regard to avoiding the escape of the person sought (Article 547, al. (3)).

[108] The same time limit indicated in question 3 is applied. Furthermore, this period may be extended upon the request of the requesting state or the national authority, but under no circumstances can this period be longer than 40 days from the day of the arrest.[Article 547 of the Code of Criminal Procedure expresses two time limits: 45 days and 40 days; the provisions of the European Convention on Extradition (Article 16) take priority.]

[109]

NORWAY

Section 183 of the Criminal Procedure Act states that with the intention to arrest a person, he/she must be brought before a court “as soon as possible and as far as possible on the day following the arrest”. In practice this time limit is within 1 day after the arrest.

[110]

The matter of the provisional arrest pending the formal request for extradition is overseen by the Extradition Act, section 20. The court decides the length of time a person will be detained pending a request for extradition (section 20 para. 1). If a request for extradition has not been received within 28 days from the day that notification of the court decision on the provisional arrest was sent to the requesting state, then coercive measures will cease to be applied. Under special conditions the court may extend this length to up to 40 days from the moment of the initial arrest. In most cases, the time limit is 28 days.

[111]

Unless otherwise decided by the court, the use of coercive measures shall apply until the request for extradition has been solved. However, the person sought for extradition is permitted to have the court re-examine the use of coercive measures every three weeks (cf. Extradition Act, section 15, para. 2). The general conditions of the Criminal Procedure Act are also applied to extradition cases regarding the remanding of the person.

[112]

After 28 days from the day the final decision on the extradition has been made, coercive measures shall no longer be applied. Under certain circumstances, the court may, at the demand of the Ministry of Justice, decide to keep the person sought for extradition in custody for a particular time beyond the set time limit (cf Extradition Act, section 19, para. 2).

[113]

POLAND

during this time the person should be taken before a court with the motion for provisional arrest. Once the suspect has been before a court, a decision on a provisional arrest must be made in 24 hours.

[114]

A suspect can be under provisional arrest for a maximum time of 40 days. If no formal request for extradition has been received within these 40 days, the suspect is released.

[115]

Once a formal request for extradition has been received the suspect is brought again before a court for a re-examination of the period of provisional arrest, which will be applied as if it were an ordinary case, but it should not exceed 3 months. This period can be extended if the proceedings have not been completed.

[116]

There is no term in the Polish law. However, once the requesting state has been informed of the place and time the person will be surrendered, the requesting state should take the person within 7 days from this agreed date or else the person is released unless he/she is deprived of their liberty as a result of another case.

[117]

PORTUGAL

Portuguese legislation, in compliance with the Portuguese Constitution, establishes a maximum period of 48 hours from the moment custody of the person is confirmed. Within these 48 hours the person in custody, under the enforcement of an arrest warrant relating to his extradition, will be presented to a competent Public Prosecutor of the Court of Appeal, who will present the detained before the Judge of the Court of Appeal (article 53 of the national law).

[118]

There are two time limits applied once there is an arrest under the enforcement of a request for a provisional arrest:

1) 18 days, during which the Requesting state, by facsimile or correspondence addressed directly to the Portuguese Central Authority (Prosecuting General of the Republic), shall confirm its intention to present a formal request for extradition.

2) 22 days, in which the formal presentation for the request for extradition shall be made.

The sum of both time limits is the equivalent to the 40 days stated in Article 16, paragraph 4 of the European Convention on Extradition. If these time limits are not adhered to this will result in the liberation of the detained (cfr. Article 38 n° 5 of the Law 144/99)

[119]

There are a number of deadlines once the formal request for extradition has been received:

1) Within 20 days the extradition procedure should have been presented to the competent Court of Appeal, ie within 10 days the Prosecuting General shall formalize his opinion about the practicality of the request, within 5 days the Minister of Justice shall declare the admissibility of the request and the procedure must be presented to the Court in 5 days (Article 63, n°1 and 3).

2) In the case of an arrest the Court of Appeal has a maximum time limit of 65 days (Article 52 n°1) which can be extended up until 80 days.

3) In the case of an appeal the Supreme Court must decide within 80 days, of which the first day starts on the date of the interjection of the appeal (Article 52 n°4)

4) In the case of an appeal to the Constitutional Court this must be decided in 3 months, of which the first day starts on the date of the interjection of the appeal (Article 52 n°4)

In summary, from the time of arrest and in the case of interjection of all the possible appeals, the totality of the detention for extradition will come to more or less 12 months.

[120]

Excluding the case where the extradition will be postponed (Article 19 European Convention on Extradition), the national law establishes that the person to be extradited must be handed over within 20 days (article 60). This time limit will, nonetheless, be extended in 20 days, in the cases where the requesting state does not send representatives to assure the handing over. This time limit can be extended, again, in case of unexpected circumstances (ie sickness of the detained).

[121]

ROMANIA

during which the person should be taken before a court regarding the request for provisional arrest in view of an extradition (Law on extradition n° 296/2001, and taking into account amendments of the Romanian Constitution and the rules of criminal procedure)

[122]

The provision in the Law on extradition n° 296/2001, article 33 is the same arrangements as article 16 of the European Convention on Extradition.

[123]

Under the new Constitution the maximum time limit is 6 months. This measure shall be extended every 30 days.

[124]

If the person is not taken over on the set date for surrender, he/she will be released after 15 days from that date, this period can be extended for a maximum of 15 days. In the case of unexpected circumstances preventing the surrender or the taking over of the person, the Requesting state will inform the Requested state. The two states will agree on a new date for the surrender, and the arrangements of paragraph 4 of article 45 remain applicable. (Law on extradition n° 296/2001, article 45 (5), (6))

[125]

RUSSIAN FEDERATION

The person sought for an arrest for the purpose of extradition can be arrested for a period of 48 hours. If the document authorizing the custodial detention of the person has been received, he/she is remanded in custody until a request for extradition is received in accordance with the international treaty, ie European Convention on Extradition.

Note that the matters of extradition are generally regulated by Chapter 54 of the Code of Criminal Proceedings of the Russian Federation (2001). Furthermore, Russian legislation is subordinate to international treaties that the Russian Federation is party (Article 15 of the Constitution of the Russian Federation).

[126]

Russian legislation does not consider the legal concept of provisional arrest, thus there is no maximum term for detention pending the receipt of the request for extradition. Therefore, it adheres to article 16 of the European Convention on Extradition.

Once a request for extradition is received the decision concerning the means of the detention in the form of custodial detention is adopted by a court (if the requesting state did not present the judicial decision on the arrest) or by a prosecutor (if the requesting state presented the judicial decision on the custodial detention of the person sought) (Article 466 of the Code of Criminal Procedure).

[127]

There is no time limit defined in the Russian legislation.

[128]

There is no time limit defined in the Russian legislation concerning this period of detention. The time limits expressed in Article 467 of the Code of Criminal Procedure of the Russian Federation concerns the procedures of the handing over to the requesting state. Thus if the person is not taken over within 15 days from the fixed date of his surrender he/she is released. This deadline may be extended by the Prosecutor General or his deputy following a justifiable claim by the requesting state, but for a time limit of no longer than 15 days.

[129]

SLOVAKIA

96 hours (4 days) or 120 hours (five days) in case of very serious crime.

These maxima are the sum of the maximum period within which the prosecutor must request the provisional arrest (48 hours) and the maximum period within which the court must rule on the request for provisional arrest (48 hours, or 72 in case of very serious crime).

[130]

There is no time limit defined in the Slovakian legislation.

[131] from the date of the decision granting extradition. If, at the time of the request, the person was already in custody in relation to a criminal proceeding conducted by Slovak authorities, the time limit will only apply if the other grounds for custody cease to exist, and the 60-day limit will run from the moment in which the custody solely pending extradition begins.

[132]

SLOVENIA

The maximum time limit is 48 hours (article 157 of the Criminal Procedure Code). However, in the first 6 hours the police must bring the arrested person before an investigating judge, if not the police must present the person a written decision that informs him/her of the reasons for their deprivation of liberty. Thus, in practice the delay between the arrest of the person and bringing that person before the investigative judge is 6 hours.

[133]

if the European Convention on Extradition applies. Under article 8 of the Constitution of the Republic of Slovenia, expressing the application of ratified and published international agreements, the length for provisional arrest for states party to the European Convention on Extradition is 40 days.

[134]

if national legislation applies, which is the case of extradition cases not provided by international agreements. Thus, the investigating judge decrees the detention of the person for a maximum length of 3 months and sets a time in which the request for extradition should be received, which takes into account the distance of the requesting state from Slovenia, but this cannot exceed 3 months (it is the same length of time as the detention). In particular cases this time limit may be extended for an additional 2 months if requested by the requesting state. (Article 525 of the Criminal Procedure Act of the Republic of Slovenia).

[135]

The investigating judge decrees the detention of the requested person if the formal request for extradition is complete and if conditions for detention as identified in the general part of the Criminal Procedure Act are present (article 524 Criminal Procedure Act).These general provisions express that the length of detention should be short and a decision on the request for extradition should be decided on a matter with priority. The Criminal Procedure Act does not stipulate any provision on the maximum time for detention in an extradition procedure, thus the general provisions on detention apply (articles 205 and 207), which state a maximum period of 2 years and 6 months. Furthermore, even if the court of first instance decides that the legal preconditions for extradition, as established in article 522 of the Criminal Procedure Act are not present, the court may decide that the requested person remain in custody until the decision is final.

[136]

There is no maximum term in the national legislation between the time a decision on extradition has been made and the person’s surrender. If the extradition is permitted then the general provisions on custody are used (refer to footnote no. 130). This means that the entire extradition procedure, making the decision on extradition and the surrender of the person, should be completed within this length of time.

[137]

SOUTH AFRICA

Arrested, detained or accused persons should be brought before a court as soon as possible, but not later than 48 hours after the arrest (Section 35 (1)(d) of the Constitution of the Republic of South Africa).

After 48 hours Article 7 of the Extradition Act may be applied. This Article provides that a magistrate may issue a warrant to detain the person who has been arrested without a warrant under any law of the Republic, which maintains the arrest without warrant of persons liable to be apprehended under any law relating to extradition.

[138]

There are no deadlines for provisional arrest expressed in Section 40 (1)(k) of the Criminal Procedure Act, 1997 (Act 51 of 1997).

[139]

There is no expressed time limit, the constitutional right of a trial to begin and conclude without unreasonable delay is applied.

[140]

Once an order for extradition has been delivered, the person being sought may appeal this order within 15 days. Subsequently during this period of appeal the person may be released on bail.

[141]

SPAIN

Within this time the person should be taken into custody by the Examining Central Court (Spanish national legislation and Passive Extradition Law of March 21, 1985 articles 8, 9 and 11).

[142]

An urgent request for provisional arrest will be ordered by the Court for a length of 40 days. During this time if the formal request for extradition has not been received, the person should be released. If the request is received the Judge will extend the arrest order for 40 days. This time is needed for the Ministry of Justice and the Spanish Government to approve by Decision of the Counsel of Ministers, the continuation of the extradition proceedings through judicial means. If the Decision is in the negative the Judge should release the person. (articles 8 and 10 Passive Extradition Law)

[143]

Article 504 of the Criminal Procedure Act and the last paragraph of article 10 of the Passive Extradition Law expresses the maximum term for provisional arrest. The calculation for provisional arrest under article 504 reflects the penalty of the crime and the measures practiced to attain the aims. Legally for the most serious imagined case, such a term could never be longer than 5 years (initial term of 3 years plus a prolongation of 2 years).

[144]

There is no defined term in the Passive Extradition Law, however if the person is not taken over on the fixed place and date, he/she could be released after 15 days from that date, and definitely after 30 days. If the extradition is requested again it could be refused. Furthermore, article 19 of this Law states that the Spanish authorities will continue with the custodial detention, giving prior notice of the fixed place and date, and in accordance with the national legislation dealing with this matter. The fixed place and date of the custodial detention will be expressed to the court making the request.

[145]

SWEDEN

No explicit term stated in the Swedish Extradition for Criminal Offences. However, an order for coercive measures must be reported to the court without delay, which shall promptly examine the measure (section 23).

[146]

The Minister for Justice sets a time limit, which cannot exceed 40 days from the date the person was arrested; ordered not to leave; or ordered to report to the police, in which the requesting state must send a formal request for extradition (section 23). Generally this term is 30 days.

[147]

If, after the receipt of a request for extradition, the person remains under arrest, the arrest needs to be filed with the court no later than 8 days (section 23). The first date of the time limit is the day that the Ministry of Justice requests an opinion of the situation from the prosecutor general (section 15). There is no specific time limit in which the government needs to make a decision about the extradition. Yet, the person may request a court hearing within 3 weeks from the date of the last decision (section 16).

[148]

A fixed time limit shall be set in which the requesting state shall take over the person. It may not, except in special circumstances, exceed 1 month from the date the requesting state was notified of the decision (section 23).

[149]

SWITZERLAND

The Federal Law on International Cooperation in Criminal Matters of 20 March 1981 (hereafter AIMP), regulates questions of extradition, if they are not settled in a treaty on extradition. As for the question on custody, in Switzerland there is no such practice in cases of extradition, there is only the provisional arrest. The Federal Justice Office is the competent authority in matters of extradition, and orders the arrest of a person wanted for a provisional arrest in view of an extradition. The person wanted has the right to ask at any time to be freed and can appeal against the arrest warrant for extradition sent by the Federal Justice Office.

[150]

If the requesting state has not sent a request for extradition and the supporting documents within 18 days from the person’s arrest, then the Federal Justice Office orders the release of the person (article 50 AIMP). This delay can go up to 40 days if there are justifiable reasons.

[151] If the request for extradition arrives on time and the cause for extradition is not obviously inadmissible then by law the term of arrest is maintained throughout the entire extradition procedure.

Swiss law does not have a specific legislation concerning the length of time for the arrest for extradition. However, there exists an obligation for promptness. The Swiss authorities must treat all requests of international cooperation with promptness and ruled without delay (article 17a AIMP). The possibility of a simplified extradition procedure is permitted according to a statement reported by a judicial authority, expressing the consent of the person (article 54 AIMP). In this case the person is handed to the Requesting state once the Federal Justice Office has authorized the surrender.

[152] The extradition can be carried out, if the person has not declared to appeal within 5 days from the day of the notification of the decision to extradite (or when an appeal has been rejected or the time limit for the appeal has expired without being used) (articles 56 and 57 AIMP). This is the same for the simplified procedure if the person expressly requests to be handed over without delay. Once the decision on extradition enters into force, the Federal Justice Office makes the necessary arrangements for surrendering the person. The Office communicates the decision to the requesting state and informs them the time and place of the surrender.

If after 10 days, following the receipt of the decision regarding the carrying out of the extradition, the requesting state did not do what was necessary to take over the person, he/she is freed (article 61 AIMP). This delay can be extended up to 30 days upon a request substantiated by the requesting State.

[153]

“THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA”

As provided by article 12 of the Constitution of the Republic of Macedonia (“Official gazette of RM” N.52/22 November 1991).

[154]

After 40 days, and taking into account the distance of the requesting state, if a request for extradition has not been submitted or there is a lack of reasons for detention, then the investigating judge will release the person. (article 513 Code of Criminal Procedure “Official Gazette of RM” N.15/3 April 1997)

[155]

that-is-to-say the maximum time limit that a person can be detained until indictment, as provided by the Constitution. This includes the maximum of 40 days of provisional arrest. (Amendment III to the Constitution of the Republic of Macedonia “Official gazette of RM” N.31/2 July 1998)

[156]

as the maximum term for the detainment of a person requested for extradition cannot be longer than 180 days, which includes a maximum of 40 days of provisional arrest. (article 513 Code of Criminal Procedure “Official Gazette of RM” N.15/3 April 1997)

[157]

TURKEY

There is no specific law under Turkish legislation regarding extradition. However, in accordance with Article 90 of the Constitution, ratified international treaties are complied and enforced. The Ministry of Justice receives the request and forwards it to the competent Public Prosecutor’s Office, which instructs the local Police to arrest the fugitive and bring him/her before the competent court within 24 hours (article 128 Criminal Penal Code and Turkish Constitution).

[158] The court makes a decision on the length of the provisional arrest according to the time limits stated under article 16 of the European Convention on Extradition. As said, the maximum time limit is 40 days.

[159]

There is no specific duration of the arrest once the formal request for extradition has been received. However, the length of the provisional arrest is examined by the competent court every 30 days from the first day of the provisional arrest, and its length is relative to the term of the prison sentence for the related offence or the sentence given to the requested person. Taking into account these circumstances the court may decide to prolong the length of the provisional arrest or release the person.

[160]

The person remains under arrest until he/she is surrendered to the requesting authorities. When a time for the surrender is set, then, in practice, within a maximum of 24 hours the person is removed from prison and handed over to the authorities of the requesting state.

[161]

UNITED KINGDOM

in which the person must be brought before a judge, for the states operating the EAW (European Arrest Warrant- Belgium, Finland, Ireland, Portugal, Spain and Sweden)

[162] For the states outside the EAW, after the arrest of the person, he/she must be brought before a judge as soon as it is possible.

[163]

The new Extradition Act 2003 states that a formal request for extradition from a state operating the EAW must be received within the 48 hours from the moment the person is arrested.

[164] As regards to states not operating the EAW, the request must be received before the 45th day from the day the person was arrested.

[165]

There is no time limit that can be applied under the Extradition Act 2003 (domestic legislation) because the provisions for both EAW and non-EAW operating states specify that the process is formally objected through the appeal courts up to the House of Lords.

[166]

For EAW states, the person must be handed over to the requesting state within 10 days from the day the judge ordered the extradition; or a later date if agreed by the judge; or when a final decision has been made by the appeal court; or the appeal process is terminated; or a later date is agreed between the requesting state and the appeal court.

[167] For non-EAW states, the person must be handed over to the requesting state within 28 days from the day the Secretary of State of the UK makes a decision to extradite; or the day a final decision has been made by the appeal court; or the day the appeal process is terminated.