1. Combatting Transnational Organized Crime through EXTRADITION

2. 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

3. 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

4. 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?

5. 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)

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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)

19. 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

20. “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

21. “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

22. 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

23. 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

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