Shifts in Interests in European Extradition Law

Comparing Extradition Models of the Council of Europe and the European Union

The surrender of criminal suspects who flee to foreign countries has sparked controversy for centuries. Relevant ex­tra­dition law shows not only criminal law’s territorial limits, but the dissolution of tension between security through effective cross-border enforcement and protecting individual rights. While prosecuting states require assis­tance from their foreign counterparts as international law proscribes their authority on foreign territory, international extradition law establishes conditions mirroring the balancing of these interests. However, European extradition law continues to evolve, materially changing these interests.
The following hypothesis seems apt: Initially, only the requesting state’s interest in effective surrender encoun­tered the requested state’s interest in safeguarding its sovereignty; the requested person was an ‘object’ of extra­di­tion proceedings without rights (two-dimensional perspective). Conventional extradition law established by the Council of Europe after World War II supplemented the above with equally important individual rights (three-dimensional perspective). The European Union’s (EU) new legal framework (guided by the Framework Decision on the European Arrest Warrant (FDEAW)) further changed the equilibrium established by the Council of Europe, leading to a prepon­der­ance of effectivity; sovereignty interests vanished, while the requested person’s interests diminished. The pri­mary reason being that the European Arrest Warrant (EAW) implements the principle of mutual recognition of judicial decisions. Legal scholars caution that, by reducing legal barriers, this ensures free circula­tion of arrest warrants, resulting in the erosion of individual rights. The EAW—initially an instrument to combat terrorism—therefore challenges the balancing of security and individual rights, a concern at the core of the Department’s research agenda.
This study tests this hypothesis in two ways. First, by analysing the history of European extradition law. Second, by examining the legal extradition framework established by the Council of Europe and the EU. Adopting a blend of doctrinal analysis, comparative law, and empirical study, besides undertaking a normative analysis of ‘law in the books’, this study also considers extradition in practice (‘law in action’). This requires consulting German and European case law and evaluating empirical studies. Preliminary results indicate our hypothesis is susceptible to critique. The historical assumption that the requested person was formerly only ‘an object’ is shared by few Euro­pean countries (eg France, some German states before unification). By contrast, England and Belgium protected individuals through sophisticated extradition procedures. Examining today’s legal framework revealed few relevant differences. Examples are the double criminality requirement and extradition refusal for (potential) human rights violations (public order exception). Contrastingly, the EAW scheme keeps residuals of state sovereignty. Interest­ingly, individual risks followed formal amendments to the FDEAW. Mandatory forms providing limited information affects an individual’s right to be informed. Also, the obligation to execute a EAW request within compressed time frames prevents defence counsel from offering effective counterarguments.