Combatting Transnational Organized Crime through EXTRADITION

Agenda 1/ Background - Concept - Sources 2/ Extraditable Offences 3/ Grounds for Refusal 4/ Extradition Procedure 5/ “Iudicare” instead of “Dedere” - “Execute” instead of “Dedere” 6/ Prospects

Agenda 1/ Background - Concept - Sources 2/ Extraditable Offences 3/ Grounds for Refusal 4/ Extradition Procedure 5/ “Iudicare” instead of “Dedere” - “Execute” instead of “Dedere” 6/ Prospects

Background - Concept - Sources Why do UN Conventions combatting transnational organized crime deal with extradition? - Examples “Better a grave in Colombia than a jail in the USA” (Extraditables - Medellin Cartel) “A good businessman and a big investor” (Russian fugitive with multiple citizenship) “Frustrated Italian judiciary” (About “mafia type-association” crime and trial in absentia) The lack of cooperation between governments has too often made drug lords and mafia bosses immune from justice: the kingpins of Mexico and Colombia’s major drug Mafias could for a long time not being extradited to the USA to stand trial, considered to be the only way to bring them to prosecution because not only lack of technical and financial means but also corruption and obstruction of justice in their country of origin made it for them too easy to escape justice there. “Better a grave in Colombia than a jail in the USA” (Extraditables - Medellin Cartel) One of the most wanted man in Russia cannot be extradited to that country in the absence of any extradition treaty with his country of residence. Above that, he holds the citizenship of that country and here operates there as a good businessman and a big investor. The Italian judiciary got very frustrated: Several extradition requests dealing with leading mafia bosses were refused, either because the requested country did not know a “mafia-type-association” crime or because the requested country was not satisfied with the Italian concept of “trial in absentia” (Giovanni Greco) . Other extradition requests too so long to be agreed upon that the success of the trial was seriously endangered. How can the UN Conventions (Vienna Convention and the Palermo Convention) improve this situation?

Background - Concept - Sources Concept - Basic Elements of Extradition The physical removal of a person from one country to another country On basis on an agreement between those two countries For the purpose of assisting the requesting country in enforcing criminal law: Surrender to an international criminal court Expulsion, Deportation Abduction Extradition for the purposes of prosecution Extradition for the purposes of enforcing a sentence The physical removal of a person from one country to another country  surrender to an international criminal court On basis on an agreement between those two countries  expulsion, deportation  abduction For the purpose of assisting the requesting country in enforcing criminal law the extradited person faces a trial before a criminal court in the requesting State (extradition for the purposes of prosecution), or the extradited person will serve the penalty or measure, imposed by a criminal court in the requesting State (extradition for the purposes of enforcing a sentence)

Background - Concept - Sources Main Sources: Treaties Complementary Source Other Treaties, e.g. Vienna Convention 1988, Palermo Convention 2000 (+ Protocols) Extradition Treaties: Multilateral or Bilateral Treaties, e.g. UN Model Code Domestic law of the Requested State (reciprocity) Main Source : A Treaty between the two countries involved: A. Extradition Treaties - Multilateral or Bilateral (UN Model Treaty) B. Other (multilateral) Treaties (e.g. UN Convention against illicit Traffic in Narcotic Drugs and Psychotropic Substances; UN Convention on transnational organized crime) Supplementing the extradition treaties in force Forming the (optional) legal basis for extradition among contracting parties that are not bound by extradition treaties possible solution in case there is no extradition treaty Extradition without Treaty on basis of Reciprocity Complementary Source : Domestic law of the Requested State

Agenda 1/ Background - Concept - Sources 2/ Extraditable Offences 3/ Grounds for Refusal 4/ Extradition Procedure 5/ “Iudicare” instead of “Dedere” - “Execute” instead of “Dedere” 6/ Prospects

Extraditable Offences Treaties Domestic law Extradition Treaties - a list added to the Treaty - offenses punishable under the laws of requesting and requested country (double criminality rule!) by imprisonment for a maximum period of at least [x] year(s), or by a more severe penalty. Other Treaties Vienna Convention: Drug-related offences Palermo Convention (+ Protocols): Transnational Organised Crime Double Criminality Rule A. On Basis of Extradition Treaties extraditable offences mentioned in a list added to the Treaty or, offenses punishable under the laws of the requesting and the requested country (double criminality rule!) by imprisonment or deprivation of liberty for a maximum period of at least [x] year(s), or by a more severe penalty. Where request for extradition relates to a person wanted for enforcement of a sentence, a minimum period of at least [x] months must remain to be served. B. On Basis of Treaties on transnational organized crime B.1. Vienna Convention 1988: Drug-related offences as defined in the convention

Extraditable Offences Palermo Convention 2000 IF the offence is transnational in nature, and involves an organized criminal group Organized Crime Offences Laundering of proceeds of crime Corruption Obstruction of Justice Each offence punishable by a maximum deprivation of liberty of at least four years or a more serious penalty Trafficking in Persons (Pr I) Smuggling of Migrants (Pr II) Illicit Manufacturing and Trafficking in Firearms (Pr III) or IF the offence involves an organized criminal group and the person is located in the territory of the requested State party AND IF the minimum penalty requirement for extradition provided for by the domestic law of the requested State Party or by the applicable extradition treaties is fulfilled

Agenda 1/ Background - Concept - Sources 2/ Extraditable Offences 3/ Grounds for Refusal 4/ Extradition Procedure 5/ “Iudicare” instead of “Dedere” - “Execute” instead of “Dedere” 6/ Prospects

Grounds for Refusal Grounds for Refusal Extradition Treaties Other Treaties Domestic Law Nature of the offence: Political Offence Exception Military Offence Exception Fiscal Offence Exception Constitution Law on Judicial Cooperation Criminal Procedure Criminal Law Characteristics of the offender: No Extradition of own nationals Human Rights Exception Asylum Clause Referral to Extradition Treaties or Domestic Law Procedural grounds: Ne bis in idem-Principle Statutory limitations Amnesty Lack of jurisdiction A. Extradition Treaties: grounds based on the nature of the offence: Political Offence Exception Military Offence Exception Fiscal Offence Exception grounds based on characteristics of the offender: No Extradition of own nationals (main problem!!!!!) Human Rights Exception (risk for capital punishment, for torture or cruel, inhuman treatment or degrading punishment or risk that no fair trial can be guaranteed e.g. judgement in absentia without retrial) Asylum Clause procedural grounds: Ne bis in idem-Principle or prosecution is pending in requested State Statutory limitations Amnesty Lack of (territorial) jurisdiction for the requesting State Special Provisions

Grounds for Refusal Grounds for Refusal Extradition Treaties Domestic Law Vienna Convention 1988, Palermo Convention 2000 Referral to existing sources Asylum clause: explicitely mentioned Fiscal offence exemption: excluded Own nationals: Refusal combined with obligation to prosecute (!) B. Treaties on transnational organized Crime: Reference to existing sources grounds for refusal according to the applicable extradition treaties/ the domestic law of the requested state are taken into consideration (Vienna Convention, Palermo Convention) In addition: asylum clause is explicitly mentioned as optional ground for refusal (Vienna Convention, Palermo Convention) But (very important!): “fiscal offence exception” is excluded (Palermo Convention) “own national’s exception” is linked to the obligation to prosecute/ to execute (Vienna Convention, Palermo Convention) Doubtable if this will solve the problem of non extradition of own nationals

Agenda 1/ Background - Concept - Sources 2/ Extraditable Offences 3/ Grounds for Refusal 4/ Extradition Procedure 5/ “Iudicare” instead of “Dedere” - “Execute” instead of “Dedere” 6/ Prospects

Extradition Procedure Active Extradition Passive Extradition From the point of view of the requested State From the point of view of the requesting State Common Problems: Few norms in Extradition Treaties Bureaucratic, slow, cumbersome Need for prima facie - evidence Highly political - final decision taken by the administration

Extradition Procedure Court Requesting State Court Requesting State Ministry of Justice Requesting State Ministry of Justice Requesting State Diplomatic Way Diplomatic Way Ministry of Justice Requested State: Final decision Ministry of Justice Requested State Court Requested State: Decision on Recevability

Extradition Procedure Improving the procedure Vienna Convention, Palermo Convention Suggestions: Creation of central authorities Increase Direct contacts between judicial authorities Increase networking (e.g. European Judicial Network, Eurojust) Use Simplified procedures for people who consent Make the judiciary stage more, the administration stage less important Apply the rule of Non-Inquiry State Parties shall endeavour to expedite extradition procedures and to simplify evidentiary requirements

Extradition Procedure Improving the procedure Vienna Convention, Palermo Convention Suggestions: Importance of Interpol’s Red Notices Use of Advanced Computer Systems (e.g. Schengen Information System) The requested State Party may take the person concerned provisionally into custody or take other appropriate measures to ensure his presence at extradition proceedings - subject to the provisions of its domestic law and its extradition treaties - if the circumstances so warrant and are urgent - and, at the request of the requesting Party

Extradition Procedure Improving the procedure Vienna Convention, Palermo Convention Importance: Requesting State Party has the opportunity to present additional information Requesting State Party knows better how to prevent refusals in the future Before refusing extradition, the requested State Party shall, where appropriate, consult with the requesting State Party to provide it with ample opportunity to present its opinions and to provide information relevant to its allegation State Parties shall seek to conclude bilateral and multilateral agreements and arrangements to carry out or to enhance the effectiveness of extradition (Palermo Convention)

Agenda 1/ Background - Concept - Sources 2/ Extraditable Offences 3/ Grounds for Refusal 4/ Extradition Procedure 5/ “Iudicare” instead of “Dedere” - “Execute” instead of “Dedere” 6/ Prospects

“Judicare” instead of “Dedere” Prosecuting by the requesting State shall, if it has established jurisdiction, submit the case to its competent authorities for the purpose of prosecution, unless otherwise requested by the requesting Party for the purposes of preserving its legitimate jurisdiction (Vienna Convention); the requesting country has the right to adopt the measures that may be necessary to establish its jurisdiction (Palermo Convention); submit the case without undue delay to its competent authorities for the purpose of prosecution (Palermo Convention) - unless otherwise agreed with the requesting Party (Vienna Convention) requesting State Party can be discharged of the obligation to prosecute, if extradition of own nationals is permitted upon the condition that person will be returned to that State Party to serve the sentence imposed by the requesting State (Palermo Convention); Refusal to extradite own nationals: Extradition refused on another basis: Technical problems (e.g lack of evidence); Political problems (presupposes that there is no obstruction of justice nor corruption in the prosecuting country) Transfer of proceedings; the above mentioned so called “Dutch Model” has a lot of advantages

“Execute” instead of “Dedere” Executing by the requesting State Refusal to extradite own nationals: If extradition, sought for the purposes of enforcing a sentence, is refused because the person to be extradited is a national of the requested country, the requested Party shall consider the enforcement of the sentence imposed under the law of the requesting Party, or the remainder thereof, if its law so permits and in conformity with the requirements of such law upon application of the requesting Party (Vienna Convention, Palermo Convention) State Parties may consider entering into bilateral or multilateral agreements or arrangements on the transfer to their territory of sentenced persons (Vienna Convention, Palermo Convention); Transfer of sentenced persons as alternative to extradition, if person concerned consents

Agenda 1/ Background - Concept - Sources 2/ Extraditable Offences 3/ Grounds for Refusal 4/ Extradition Procedure 5/ “Iudicare” instead of “Dedere” - “Execute” instead of “Dedere” 6/ Prospects

Prospects: Surrender on basis of an international arrest warrant? Cfr new developments within the European Union, often said to be the laboratory for new developments worldwide Cfr Surrender to an international Criminal Court ICTY (Milosovic Case) - ICTR ICC Further harmonization of substantive and procedural laws? Necessary “pendant” to facilitate cooperation Compliance with human rights and fundamental freedoms must be guaranteed

Combatting Transnational Organized Crime through EXTRADITION Promoting co-operation among countries: A necessity to win the fight against transnational organized crime!