MODULE II: THE INSTRUMENTS OF JUDICIAL COOPERATION IN CRIMINAL MATTERS IN THE CONTEXT OF THE COUNCIL OF EUROPE.- TUTOR: JOS

1
Red Europea de Formación Judicial (REFJ)
European Judicial Training Network (EJTN)
Réseau Européen de Formation Judiciaire (REFJ)

• MODULE II THE INSTRUMENTS OF JUDICIAL
  COOPERATION IN CRIMINAL MATTERS IN THE CONTEXT OF
  THE COUNCIL OF EUROPE.- TUTOR JOSÉ MIGUEL
  GARCÍA MORENO

2
EXTRADITION THE COUNCIL OF EUROPE CONVENTION
OF1957

• European Convention on Extradition of 13 December
  1957
• Territorial Scope
• All Council of Europe countries (except Monaco
  and San Marino), Israel and the Republic of South
  Africa.
• Protocols
• First Additional Protocol of 17 October 1975, in
  force since 20 August 1979.
• Second Additional Protocol of 17 March 1978, in
  force since 5 June1983.

3
EXTRADITION THE COUNCIL OF EUROPE CONVENTION

• General Rules (I)
• General obligation to grant extradition of
  persons sought for an offence or for the carrying
  out of a sentence or detention order (Article 1).
• Extradition shall be granted in respect of
  offences punishable under the laws of the
  requesting Party and of the requested Party
  (principle of dual criminality) above a minimum
  limit set in the Convention sentence or
  detention order involving deprivation of liberty
  for a maximum period, in general, of at least one
  year, or a sentence or detention order involving
  deprivation of liberty for at least four months
  in a specific case (Article 2).

4
EXTRADITION THE COUNCIL OF EUROPE CONVENTION

• General Rules (II)
• Extradition is ruled out in relation to
• Offences regarded by the requested party as a
  political offence or as an offence connected with
  a political offence (Article 3.1).
• Requests made in order to prosecute or punish a
  person on account of his race, religion,
  nationality or political opinions (Article 3.2)
• Offences under military law which are not
  offences under ordinary criminal law (Article 4)
• The requested state may refuse extradition of its
  nationals (Article 6), but
• At the request of the requesting party it will
  submit the case to its competent authorities in
  order that proceedings may be taken against a
  particular national (principle of aut dedere aut
  judicare) .

5
EXTRADITION THE COUNCIL OF EUROPE CONVENTION

• General Rules (III)
• Other cases of optional exclusion or refusal of
  extradition (Articles 7 to 11)
• When the jurisdiction of the requested state and
  that of the requesting state coincide.
• When the person sought has been the object of a
  final judgment issued by the competent
  authorities of the requested party (principle of
  ne bis in idem).
• When the person claimed has become immune by
  reason of lapse of time from prosecution or
  punishment.
• If the offence for which extradition is requested
  is punishable by death.

6
EXTRADITION THE COUNCIL OF EUROPE CONVENTION

• General Rules (IV)
• Rule of speciality (Article 14)
• It prevents the extradited person from being
  proceeded against, sentenced, detained or
  otherwise restricted in his personal freedom in
  the requesting state for any offence committed
  prior to his surrender, other than that for which
  he was extradited, except in the following cases
• - when the party which surrendered
  him consents
• - when that person, having had an
  opportunity to leave the territory of the Party
  to which he has been surrendered, has not done so
  within 45 days of his final discharge, or has
  returned to that territory after leaving it.

7
EXTRADITION THE COUNCIL OF EUROPE CONVENTION

• General Rules (V)
• Re-extradition to a third state (Article 15)
• The consent of the requested party is necessary
  when the person is sought in respect of offences
  committed before his surrender to the requesting
  state.
• The consent of the requested party will not be
  necessary if the surrendered person, having had
  an opportunity to leave the territory of the
  Party to which he has been surrendered, has not
  done so within 45 days of his final discharge, or
  has returned to that territory after leaving it.

8
EXTRADITION THE COUNCIL OF EUROPE CONVENTION

• General Rules (VI)
• The request shall be in writing and shall be
  supported by conviction and sentence or
  detention order, statement of the offences for
  which extradition is requested, copy of the
  relevant enactments and description of the person
  claimed (Article 12)
• Communication via the corresponding Ministries of
  Justice, without excluding use of diplomatic
  channels, originally envisaged in Article 12.1
  (Article 5 of the Second Additional Protocol to
  the Convention)
• The provisional arrest of the person sought may
  be requested in urgent cases (Article 16)
• The extradition and provisional arrest procedures
  are governed solely by the law of the requested
  state (Article 22)