1. Convention on Simplified Extradition Procedure between Member States of the European Union, adopted on 10 March 1995 (1995) O.J. C78/1 (the “1995 Convention”). Convention Relating to Extradition between the Member States of the European Union, adopted 27 Sept. 1996 (1996) OJ. C313/11 (the “1996 Convention”).

2. Extradition in Europe is currently based largely on the European Convention on Extradition 1957, E.T.S. No.24 (the “1957 Convention”) and its two Protocols of 1975 and 1978. Other arrangements have been formed under the Schengen Convention 1990 and regional agreements such as the Benelux Convention on Extradition and Judicial Assistance in Penal Matters 1962.

3. See generally Shearer, , Extradition in International Law (1971)Google Scholar; Gilbert, , Aspects of Extradition Law (1991)Google Scholar; Bassiouni, , International Extradition: United States Law and Practice (3rd edn, 1995).Google Scholar

4. The procedure known as “rendition” is sometimes used when fugitives are exchanged under a reciprocal agreement. This agreement may not amount to a formal treaty and may extend to non-extraditable offences. See generally Shearer, , “Extradition without Treaty” (1975) 49 A.L.J. 116.Google Scholar

5. Kindler v. Canada (1991) 84 D.L.R. (4th) 438, 488.Google Scholar

6. [1993] 3 All E.R. 504, 509.Google Scholar

7. For a summary of the history of the non-extradition of nationals see Shearer, , op. cit supra n.3, at p.94.Google Scholar

8. According to the principle of active nationality a State has jurisdiction to try its own nationals for offences committed abroad. No State is required by international law to extradite its own nationals for offences committed abroad.

9. Gane, and Nash, , “Illegal Extradition: The Irregular Return of Fugitive Offenders” (1996) 1 S.L.P.Q. 277.Google Scholar

10. In the UK s.2(l) of the Extradition Act 1989 limits extradition to conduct “which if it occurred in the United Kingdom, would constitute an offence punishable with a term of imprisonment of 12 months, or any greater punishment and which, however described in the law of the foreign state … is so punishable under that law”.

11. See generally Shearer, , op. cit. supra n.3, at chap.5.Google Scholar

12. However, in determining whether the conduct of the accused amounted to an extraditable offence the requested State has no jurisdiction to enquire into the substantive criminal law of the requesting State. Under Art.12(2)(b) of the 1957 Convention the requesting State is required to provide a legal description of the offence and the time and place of its commission.

13. Mullan, G., “The Concept of Double Criminality in the Context of Extraterritorial Crimes” [1997] Crim. 17Google Scholar; see generally Forde, M., The Law of Extradition in the United Kingdom (1995).Google Scholar

14. R. v. Governor of Pentonville Prison and another, ex p. Lee [1993] 3 All E.R. 504, 508.Google Scholar

15. Ibid.

16. Under Art.14 of the 1957 Convention a person has 45 days to leave before he can be charged with a new offence.

17. This issue has recently received attention in the UK and has become known as the “China point”. The People's Republic of China (PRC) resumed sovereignty over Hong Kong on 1 July 1997. Hong Kong became a Special Administrative Region of China. Currently no member State has extradition arrangements with the PRC. Thus, there exists some uncertainty about the safeguards in the existing extradition arrangements continuing after the change in the political situation. In R. v. Governor of Brixton Prison, ex p. Osman (No.3) [1992] 1 All E.R. 122Google Scholar the Divisional Court was of the opinion that section 6(4) of the 1989 Act was concerned with “situations which prevail not in the future but at the time”. Thus, in extradition proceedings in the UK under the 1989 Act it was not appropriate for the magistrate to consider the possible effects of a change of government. In R. v. Governor of Pentonville Prison, ex p. Lee [1993] 3 All E.R. 504Google Scholar the applicant was also reluctant to return to Hong Kong, fearing that the protections in the current extradition arrangements would not survive the change of sovereignty. The court was of the opinion that to look into the future would “drive a coach and horse through the principle of comity and reciprocity which underlies the basis of extradition”.

18. In Bozano v. France [1986] 9 E.H.R.R. 297Google Scholar the applicant was convicted in absentia in Italy of serious crimes. Following his arrest in France, the Italian authorities sought his extradition. The French court refused to extradite him on the basis that French law did not allow extradition following a conviction in absentia. However, the French authorities deported him to Switzerland and the Swiss extradited him to Italy. There was no apparent irregularity in the extradition process between Switzerland and Italy. Provided there has been no collusion between the trial State and the State of refuge, this method of returning a fugitive offender does not seem to offend the Convention provisions.

19. Art.10 of the 1957 Convention provides that “extradition shall not be granted when the person claimed has, according to the law of either the requesting or the requested party, become immune by reason of lapse of time from prosecution or punishment”. However, the UK reserved the right to exercise discretion and refuse to extradite only in appropriate circumstances.

20. See idem, Art.11. In UK v. Soering [1989] 11 E.H.R.R. 439Google Scholar the European Court of Human Rights was of the opinion that the applicant's extradition to the US, where he could be placed on death row, gave rise to a violation of Art.3 of the European Convention on Human Rights. It was also noted in this case that in exceptional circumstances it would be appropriate to consider a violation of Art.6 where the fugitive had suffered or risked suffering a “flagrant denial” of a fair trial in the requesting State.

21. The scope of the political offence exception within member States of the Council of Europe has been reduced by the European Convention on the Suppression of Terrorism 1977, E.T.S. No.90, which lists a range of offences associated with terrorism which are precluded from being regarded as political offences.

22. See e.g. its inclusion in the UN Model Treaty on Extradition 1990, Art3(a), where it is listed as a mandatory ground for the refusal of extradition.

23. Lauterpacht, , “The Law of Nations and the Punishment of War Crimes” (1944) 21 B.Y.I.L. pp.58–95.Google Scholar

24. The justification for including the political offence exception in extradition treaties creates difficulties when trying to arrive at a satisfactory definition of “political offence”. See Swart, , “Human Rights and the Abolition of Traditional Principles”, in Eser, and Lagodny, (Eds), Principles and Procedures for a New Transnational Criminal Law (1991), pp.505–534.Google Scholar

25. R. v. Governor of Pentonville, ex p. Cheng [1973] A.C. 931.Google Scholar

26. The courts in the UK have considered this problem on many occasions: see Re Castioni [1891] 1 Q.B. 149Google Scholar; Re Meunier [1894] 2 Q.B. 415Google Scholar; R. v. Governor of Brixton Prison, ex p. Kolczynski [1955] 1 Q.B. 540Google Scholar; R. v. Governor of Brixton Prison, ex p. Schtraks [1964] A.C. 556Google Scholar; R. v. Governor of Pentonville, ex p. Cheng [1973] A.C. 931Google Scholar; T. v. Secretary of State for the Home Department [1996] 2 All E.R. 865.Google Scholar

27. The Times, 22 08 1996.Google Scholar

28. The rationale for this exception to extradition is again linked to sovereignty and it has been criticised as being based on irrational grounds: see Swart, op. cit. supra n.24. Nevertheless, it is considered a fundamental right in some States and has been incorporated into the constitution of the Federal Republic of Germany.

29. To determine who may be classed as a national, reference should be made to the relevant law on nationality.

30. Recently in the UK the courts have been asked to consider whether a State that refuses to extradite its own nationals is entitled to seek the extradition of a national of another State. If extradition proceeds on the basis of reciprocity, a State may only need to fulfil an obligation to do what it would do itself. In Re McAliskey (The Times, 22 01 1997) the German government sought the extradition of a UK citizen. The court refused to accept the applicant's submission that the request should be refused on the basis that the German government would not extradite a German citizen to face trial in the UK. The court found it impossible to construe the terms of the 1957 Convention in this way and appeared to accept that any lack of reciprocity did not act as a bar to extradition.Google Scholar

31. Joint answer to Written Questions Nos.1072 and 1236/90 (1990) O.J. C303/38.Google Scholar

32. Vermeulun and Vander Beken, “Extradition in the European Union: State of the Art and Perspectives” (1996) 4 European Journal of Crime, Criminal Law and Criminal Justice 200, 207–208.Google Scholar

33. Supra n.1.

34. Schengen Convention 1990, Art.96 (1991) 30 I.L.M. 68.Google Scholar

35. See in general Select Committee on the European Communities (House of Lords), 17th Report, pp.27–32 (1996–1997).Google Scholar

36. Supra n.1.

37. States need not have signed the 1957 Convention as a prerequisite to being a party to the 1996 Convention.

38. 1957 Convention, Art.2(l), subject to reservations; see Art.2(3) and (4).Google Scholar

39. 1996 Convention, Art.2(l).Google Scholar

40. Report to the Council (Justice and Home Affairs), 23 Mar. 1994. Doc.5366/94 JUSTPEN 13, p.4.Google Scholar

41. Two reasons given for needing to define extraditable offences are that the inefficiencies of extradition for minor offences are avoided along with the political problems caused by States refusing extradition on public policy grounds. Bassiouni has observed that the requirement of classifying an offence within a category of “extraditable offences” is curious. Why, he asks, subject to the offence meeting the requirements of double criminality and not being a political offence, should the requested State have a concern as to the seriousness of the offence? (International Extradition and World Public Order (1974), p.319.)Google Scholar

42. 1996 Convention, Art.3(l)(a).Google Scholar

43. Idem, Art.3(l)(b).

44. E.g. the rules relating to conspiracy to commit an offence are significantly different in the Netherlands from those in England and Wales.

45. What is the extent of offences “in the field of drug trafficking and other forms of organised crime”? Since there is no accepted legal definition of “organised crime” in the UK, one awaits the publication of the explanatory report to the 1996 Convention with interest.

46. Schengen Convention 1990, Art.63.Google Scholar

47. 1996 Convention, Art.10(3).Google Scholar

48. See Eser, , “Common Goals and Different Ways in International Criminal Law, Reflections from a European Perspective” (1990) 31 Harv.Int.LJ. 125Google Scholar; Swart, op. cit. supra n.24.

49. 1995 Convention, Art.16(3)Google Scholar; 1996 Convention, Art.18(4).Google Scholar

50. The Council and some member States annexed a number of declarations to the Convention text, including adopting the dispute-settlement mechanism of Art.65 of the Vienna Convention on the Law of Treaties.

51. All these restrictions have received the tacit approval of the UN by way of their inclusion in the UN Model Treaty on Extradition: UN G.A.Res.45/116 of 14 Dec. 1990.Google Scholar