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PC-OC(2021)04rev

Strasbourg, 06/05/2021

European Committee on Crime Problems

(CDPC)

Committee of Experts

on the Operation of European Conventions

on Co-operation in Criminal Matters

(PC-OC)

Guidelines and model request for extradition

Adopted by the PC-OC at its 79th plenary meeting


Guidelines to the model request on extradition

Introduction

1.         Extradition consists in assisting other jurisdictions (that are limited by national borders) to prosecute suspects or person charged or to enforce sentences when the person sought is convicted. The assistance consists of physically surrendering the person sought to the requesting state. Extradition is normally established on a legal basis, i.e. an international instrument, but in some jurisdictions reciprocity may be in itself sufficient to allow extradition.

2.         The PC-OC was of the opinion that while the requesting State should indicate the relevant convention to be applied, the States concerned should not consider themselves bound by such a formal reference as they are bound by any convention in force between the two States (the matter was in fact examined in relation to the European Convention on Extradition from 1957 : once the request mentioning only the said convention is received, the requested State is entitled to examine it under the European Convention on the Suppression of Terrorism as well and therefore apply one or the other convention).

3.         Sometimes extradition is sought on the basis of a combination of different conventions, for example a combination of a bilateral extradition treaty and a UN convention. This may be necessary when the bilateral extradition treaty contains a limitative list of offences for which extradition may be granted, while more modern transnational offences such as organised crime are not covered by the bilateral treaty. The UN Convention on Transnational Organised Crime for example may then serve as an indirect update of the outdated bilateral extradition treaty that is in place between the requesting and the requested states.

Paragraphs 2 and 3 above are without prejudice to the rules of prevalence in treaty law (article 30 of the Vienna Convention on the Law of Treaties).

4.         The text of a given convention might not be exhaustive so it is crucial to check the current status of the reservations and declarations made by (the requested Party) Parties to the Convention and its (four) Protocols before transmitting an extradition request. Often reservations have the effect of limiting obligations arising from the legal instrument (in many cases for example, excluding the possibility to extradite one’s own nationals). By means of declarations Parties indicate, for example, which bodies are regarded as the competent (central) authorities dealing with incoming extradition requests.

5.         It is also very important to review the signatures and ratifications of the relevant conventions (some conventions do not enter into force before a certain number of States have ratified them).

6.         A look at the recommendations and resolutions of the Committee of Ministers of the Council of Europe might be useful. The reading of the explanatory report to a given convention is always useful.

7.         On the PC-OC website you will find essential country information on the procedure applicable in each State Party: Country information- Link

8.         Last but not least, knowledge of the case law of the European Court of Human Rights is also of importance: see the index and summaries of the case law  – Link .

9.         For general information on the law of the requested State please note the following convention: the European Convention on Information on Foreign Law (ETS No. 62) and its Additional Protocol (ETS No. 97) which extended the provisions of the latter to criminal law. It should be borne in mind that the more you know about the legal system of the other State the greater the possibility of having your request executed.

10.       For further information it might be useful to contact your national PC-OC representative. In more complicated or sensitive extradition cases it is important, even essential to discuss the matter with the central authority of the requested state before transmitting the (final) extradition request.  This can avoid a scenario where the extradition would be refused for reasons of lack of clarity as to the time and place of the facts (offences), lapse of time or, in some requested states, the lack of prima facie evidence. In other states, certain formalities such as the proper certification of the documents in support may harm the extradition process. (e.g. South Africa requires an extradition request and the documents in support to be in a booklet form with continuous page numbering etc.)

11.       Please note that some States might be bound to obligations arising from bilateral or multilateral instruments or acts having the same effect (for example, instruments from the European Union or the Commonwealth of Independent States). Some of these obligations may stem from binding case law. The EU Court is a prime example.

12.       It may be useful for States to bear in mind proportionality. Proportionality requires consideration by the requesting State, primarily by its judicial authorities, of the balance between the purpose and need of the measure requested and the seriousness of the offence, the length of the penalty and the degree to which human rights of the concerned person are affected. In some circumstances, a transfer of proceedings (ETS No 73[1]), laying of information (art. 21 ETS No 30[2]) or a transfer of the execution of the sentence (ETS No 70[3]) could be considered as appropriate alternatives to extradition.

13.       Extradition requests are traditionally transmitted through the diplomatic channel, as indicated in article 12 of the European Convention on Extradition. Article 5 of the Second Additional Protocol (CETS n° 098) amended article 12 to allow for a direct transmission between the Ministries of Justice. Some Parties to the Protocol however have excluded this possibility through a reservation. The Fourth Additional Protocol (CETS n° 212) has introduced the possibility to transmit extradition request via electronic means (art. 2). Again, the application of this provision requires verification of the reservations that the Parties to this Protocol may have made. 

14.       The surrender of the person sought is regulated in article 18 of the European Convention on Extradition. Organising the surrender usually takes several weeks, if not longer. Moreover, external factors, such as a pandemic, may have a significant impact on the practical aspects of the surrender. Even if such circumstances qualify under the force majeure clause of article 18 paragraph 5, the prolonged detention of the person sought may come to end due to legal limitations of the duration of the detention for the purpose of extradition / surrender that apply in the requested State. The requested Party should communicate applicable limitations to the duration of the detention well in advance to the requesting Party in order to avoid the release of the person sought before the surrender can take place. 

15.       The model and the guidelines leave it to the discretion of the Parties to opt for a comprehensive extradition request that includes all elements, such as the text of the applicable criminal law stating the offences and the penalties that apply. An extradition may even include assurances and thus limit the number of attachments to the arrest warrant(s) and / or judgments.

16.       As to assurances, it should be underlined that, depending on their content, the assurances may not be made and signed by the same authority – usually the central authority – that makes and signs the extradition request. Assurances regarding prison conditions for example, are logically provided by the competent authority, i.e. the prison administration or an equivalent authority that oversees the prison system in the requesting state. 

17.     The reservations made with respect to article 23 of the Extradition Convention – the use of languages – should also be verified in order to present a proper translation of the extradition request and the documents.

1.    Identity and description of the Person Sought

Name:                                 

First name(s):                     

Aliases:                               

Gender:

Date of birth:                                   

Place of birth:                     

Nationality/es:                     

Passport(s):           

Occupation:            

Last known residence:       

Current location:

Language(s) spoken:         

Other                                   .

Any distinguishing features:

Photographs/fingerprints of the sought person are enclosed.

18.       The identity of the person sought is the first essential feature of any extradition request. Requesting States should make sure that the person sought is in fact the person sought. In case of doubts raised by the use of false identities and accompanying ID-documents such as passports, police cooperation and, if needed, MLA should be exploited to the fullest in order to establish the correct ID of the person sought. In some cases, the name / ID of the person sought, mentioned in the domestic arrest warrant or even the conviction differs from the real ID or the ID known to the requested state. Such differences should be explained or rectified in the extradition request.

19.       Nationality should also be properly established since most Parties to the Extradition Convention do not extradite their nationals. Dual nationality of the person sought, of which one is the nationality of the requested State, could mean that the requested State will not extradite the person sought or might condition it. Nationality is normally established at the time of the (final) extradition decision of the requested state.

20.       States that do not have a (national) register, always require univocal information that allows for the proper identification of the person sought, i.e. (if possible recent and high quality) photographs or even better, fingerprints and ideally a DNA-profile. Fingerprints and DNA-profiles should be delivered in internationally accepted standard. Print outs of fingerprints are most often distorted and cannot be used for comparison.

21.       For certain states the addition of patronymics and / or matronymics is important to enable the identification of the person sought.

2.    Purpose of the extradition request

  For prosecution / enforcement of a sentence

A warrant of arrest for the [offence(s)] listed below was issued by the Court for [person sought] on [date]. A copy of [document(s)] is/are enclosed.

An enforceable judgment (in absentia) for the offence(s) listed below was issued by the Court for on… A copy of the judgment is enclosed.

22.       Extradition has a twofold purpose: either to pursue (or further) the prosecution of a suspect or a charged person or to start or to resume the execution of a sentence – or a measure involving deprivation of liberty. This means that the case of the requesting state is either in the pre-trial or, following conviction, in the post-trial stage. Extradition requests may combine the two: seeking the surrender of a sentenced person who is also wanted for prosecution for other offences. As for the judgment(s) convicting the person sought, it is not necessary that the judgment(s) is (are) final. It is sufficient that the penalty or measure involving deprivation of liberty that was imposed can be enforced.

23. When the extradition request is based on an enforceable in absentia judgment, the requesting State should indicate whether the defendant was present in person during the trial or part of the trial and/or whether the defendant was represented during the trial. From the onset, the requesting State should provide sufficient details on the course of the trial. As mentioned in paragraph 42 below, a proper assurance on the right to a retrial is required.

24.       It should be underlined that an extradition request should be as complete as possible, i.e. be based on all valid (i.e. still enforceable) arrest warrants and / or judgments (convictions). Insofar the person sought does not waive specialty, the requesting state is limited in its ability to prosecute or enforce the sentence. Even if an extradition request can be supplemented at a later stage or even after the surrender has taken place, such complications are best avoided by transmitting a complete extradition request comprising all the facts and offences from the start.

25.       The arrest warrant(s) or the judgment(s) or the equivalent thereof must be valid and enforceable. This means that, the arrest warrant(s) and / or the judgment(s), at the time of the extradition request, are a valid legal basis enabling the detention of the person sought. 

3.    Offences for which the extradition is sought

            The extradition of [person sought] from State B is sought for the following offence(s):

-           [offence(s)], contrary to [relevant provision of the Criminal Code or other legislation]

26.       The offences are the legal definitions of the incriminated behaviour. The applicable legislation can be either included in the request or attached as an annex.

27.       Where necessary, legislation regarding general principles should be added, for example legislation defining general or more specific concepts such as ‘participation’, ‘conspiracy’, ‘attempt’, ‘recidivism’ etc.

4.    Penalty

The penalty foreseen (if extradition is requested for the purpose of prosecution) or imposed (if extradition is requested for the purpose of the execution of a sentence) for [the offence(s)] is:

28.       Insofar the death penalty may apply, an assurance as prescribed by article 11 of the European Convention on Extradition should be included.

29.       Insofar the offence(s) is / are punishable with a life sentence, an explanation as to the compressible nature of the life sentence might be needed.

5.    Statement of facts comprising the offence(s) for which the extradition is sought

30.       An essential requirement of the Extradition Convention (article 12) is to state the facts of the offence(s) committed as well as the date and place of their commission. The first purpose of the statement of the facts is to enable the requested Party to verify the double criminality requirement. This verification is in essence a matter of re-qualifying the facts of the matter under its own (criminal) law. When the facts are also punishable to a sufficient degree, the double criminality requirement and the associated penalty threshold have been met. Depending on the law of the requested State the assessment of double criminality should take into account the date of the commission of the offence and the legislation applicable at that time. The date of the commission of the offence is also important to assess the lapse of time criteria. The place where the offence was committed is important to determine jurisdiction, if required.  

31.       Arguably the most difficult part of any extradition request is the statement of the facts. The same applies when writing acceptable MLA-requests. Such a statement can be challenging when the facts of the case are complicated (e.g. organised crime, financial crime), the facts happened a long time ago or the person sought is wanted for a multitude of charges or convictions.

32.       The right balance is to present the relevant facts, avoiding exposés that are only comprehensible to the police officers or prosecutors or the judges that dealt with the case(s). Like an MLA-request, an extradition request is for another state that is normally not at all familiar with the case(s).

33.       When the requested State requires prima facie evidence or probable cause under its extradition law, evidentiary elements may be needed to be included in the extradition request.

34.       The statement of the facts should be as complete as possible in order to avoid future issues regarding the principle of specialty (see also under 2: Purpose of the extradition request).

6.    Lapse of time

The offence(s)/sentence for which extradition is sought from State B is/are not barred from prosecution/enforcement by virtue of Articles [law of requesting State].

35.       Lapse of time is essentially the procedural accessory of double criminality. After it is established that the facts are punishable (to a minimum degree) in both Parties, the next step is to certify whether the prosecution or the enforcement of the sentence imposed is still possible under both Parties’ laws.

36.       Often, a simple statement that “the prosecution of the offences for which the extradition is sought / the execution of the sentence for which the extradition is sought is not elapsed”, should be sufficient to avoid any doubt or discussion about the lapse of time condition to extradition.

37.       However, in cases where the prosecution in the requesting state regards “old” facts or regards the enforcement of a sentence that was imposed a long time ago, questions regarding lapse of time may raise in either state. In those cases, the requesting State should include  additional information on investigative actions or decisions and/or judicial acts that have occurred that have either suspended or interrupted lapse of time including with regard to co-defendants/co-authors This applies to  lapse of time regarding either the prosecution or the enforcement of the sentence.

38.       Sometimes both forms of lapse of time may need to be verified. This is in particular the case when the person sought was tried, convicted by a sentence in absentia and when an assurance in the sense of article 3 of the Second Additional Protocol was provided as required. In those cases, the extradition request relies on an enforceable in absentia judgment, meaning that the imposed sentence may be enforced following the eventual surrender of the person sought. At the same time, the surrendered person must have at least the opportunity to obtain a contradictory re-trial. A re-trial means that the prosecution shall revive and may thus not be elapsed. In those cases, both lapse of time regarding the enforcement of the sentence and regarding the prosecution may come under scrutiny.

39.       Insofar the Parties involved are also Parties to the Fourth Additional Protocol to the Convention and did not make a reservation, the requesting State is exempted from providing detailed or additional information on the law regarding lapse of time, since the requested State should no longer look at lapse of time in accordance with its own law. This means that any further assessment in doubtful cases is irrelevant.

7.     Other

40.       “Other” may regard a wide variety of specific issues that exceed straightforward extradition requests. Currently, issues surrounding fundamental rights may raise even in straightforward requests and may give rise to the inclusion of assurances in that respect.

41.       The requesting State should take into account earlier experiences with the requested State in terms of assurances that were requested in the past. Future requests, especially when these regard similar offences or circumstances, will need to include the same or similar assurances than those provided after the transmission of an earlier extradition request.

42.       In case the extradition request relies on an in absentia conviction, the right to a retrial must be assured in accordance with article 3 of the Second Additional Protocol to the Extradition Convention.

43.       Other assurances may regard article 3 of the European Convention on Human Rights, more specifically on the conditions of the prison where the person sought may be held after his / her surrender.

44. When the person sought is considered dangerous or has a serious medical condition, it is useful to provide the requested state with a risk assessment, including indications on the risk of escape, violent behaviour, medical history and criminal records. The transfer of medical records is subject to the consent of the person concerned.

8.      Enclosures

45.       Standard enclosures are:

  1. The arrest warrant(s) and / or
  2. The enforceable judgment(s)
  3. A statement of the facts
  4. The applicable legislation (offences and their sanctions, where needed additional legislation)
  5. Assurances

-          Retrial in case of an in absentia conviction;

-          Fundamental rights issues


Model request for extradition

LOGO

Requesting State’s Authority

(State A)

Re. [name of person sought]

To

Requested State B

Ref.

Pursuant to the European Convention on Extradition (Council of Europe) of 13 December 1957 (ETS No 024) and its applicable Additional Protocols, 

the [name of competent authority] of State A has the honour to herewith request the competent authorities of State B to extradite the person mentioned hereinafter.

1.      Identity and description of the Person Sought

Name:                        

First name(s):             

Aliases:                                   

Gender:

Date of birth:                          

Place of birth:             

Nationality/es:            

Passport(s):                

Occupation:               

Last known residence:           

Current location:

Language(s) spoken: 

Other                           .

Any distinguishing features:

Photographs/fingerprints of the sought person are enclosed.

2.      Purpose of the Extradition Request

For prosecution / enforcement of a sentence

A warrant of arrest/sentence for the [offence(s)] was issued by the Court for [person sought] on [date]. A copy of [document(s)] is/are enclosed. /

An enforceable judgment (in absentia) for the offence(s) listed below was issued by the Court on [date]. A copy of the judgment is enclosed.

3.     Offence(s) for which extradition is sought

The extradition of [person sought] from State B is sought for the following offence(s):

-           [offence(s)], contrary to [relevant provision in Penal Code or other legislation]

4.      Penalty

The penalty foreseen/imposed for [the offence(s)] is:

5.       Statement of facts comprising the offence(s) for which the extradition is sought

6.       Lapse of time

The offence(s)/sentence for which extradition is sought from State B is/are not barred from prosecution/enforcement by virtue of Articles [law of requesting State].

7.         Other

8.       Enclosures

On behalf of the requesting Authority,

Signature(s)

TITLE

Seal

“Requesting Authority”



[1] European Convention on the Transfer of Proceedings in Criminal Matters

[2] European Convention on Mutual Assistance in Criminal Matters

[3] European Convention on the International Validity of Criminal Judgments