Lesson #11

European Convention
On Extradition
 Duration of Lesson

Four (4) hours.

Materials, Equipment and Logistics

• White Board (and non-permanent markers)

• Flipchart (and four colour markers)
• TV (with remote control)
• DVD-Player (with remote control)
• PowerPoint Projector
• Lab Top
• Student hand-outs

Lesson Goal

The goal of this lesson is to make the participants familiar with the European
Convention on Extradition and the terminology used in this Convention.

Learning Objectives

At the end of this Lesson Plan the participants will be able:

1. To give the definition of extradition.
2. To list at least five (5) articles of the European Convention of Extradition.
Slide 03
Sources

• Convention on the Transfer of Sentenced Persons

• Council of Europe resolutions and recommendations on extradition.
• European Convention for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment.
• European Convention on Extradition (ETS No. 24), 1957, Additional Protocol
(ETS No. 86), 1975 and Second Additional Protocol (ETS No. 98), 1978
• European Convention on Human Rights.
• European Prison Rules
• Kosovo Law on Criminal Procedures
• Kosovo Law on Execution of Penal Sanctions
• Kosovo Law on International Legal Cooperation in Criminal Matters.
• Kosovo Law: Constitution of Kosovo
• Minimum Standards – Protecting individuals involved in transnational criminal
proceedings
• Treaty on Extradition between Kosovo and the Republic of Macedonia.
• UN Convention against Corruption
• UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances
• UN Convention against Transnational Organized Crime and the Protocols thereto
• UN Model Treaty on Extradition
• UN Standard Minimum Rules on Treatment of Prisoners
• Universal conventions against terrorism.
• UNODC Legislative Guides for the Implementation of the UN Convention
against Transnational Organized Crime and Protocols thereto.
• UNODC Report of the Informal Expert Working Group on Effective Extradition
Casework Practice.
 Introduction

While the concept of extradition is easily understood, the procedures to be followed

in any particular extradition case can become quite complex.

This is due to the numerous legal issues associated with extradition, the number of
actors involved in the extradition process, and the fact that each extradition is unique.

There are three main parties in an extradition:

• The country which has made the extradition request, i.e. requesting state;
• The country which has been asked to extradite a person on their territory, i.e. the
requested state;
• The person whose extradition is sought

Trainer’s note:
Ask the students if they know which offices/institutions are involved in the whole
process of extradition?
• Law Enforcement;
• Ministry of Justice;
• Diplomatic channels.

Learning Objective # 1: To give the definition of Extradition.

Video 01
Trainer’s Note – Attention Grabber
To initiate the participant’s interest in this topic area, open the lesson with an
attention-grabber.
A possible attention grabber could be using a video of extraditions done.
Have the students watch this and use their reactions and responses to the video.

Discussion – 5’
Ask the participant what they understand under extradition.
Ask them to come up with a definition of extradition.
Write some key words on the board or flipchart.
 Definition:
Extradition is a legal process by which a person suspected or convicted
of a criminal offence is transferred from one country to another for the
purpose of prosecution, or to serve a sentence already imposed.
Slide 04

What is the legal basis for Extradition?

Discussion – 2’
Ask the participant what they believe is the legal basis for extraditions.
Slide 05
The legal basis for extradition may be bilateral or multilateral treaty or convention, ad
hoc agreement, reciprocity or comity – the latter two usually supported by domestic
legislation.

Trainer’s Note:
Explain the terms reciprocity and comity if the Participants don’t understand.
Reciprocity: favours, benefits, or penalties that are granted by one state to the
citizens or legal entities of another (visa, travel restrictions, reduction of taxes,
copy
Comity: the principle that one jurisdiction will extend certain courtesies to other
nations (recognizing the validity of their executive, legislative, and judicial acts).

History of extraditions

Historically, extradition was based on pacts, courtesy or goodwill between heads of

sovereign States.

Slide 06 It is an ancient mechanism, dating back to at least the thirteenth century (13th) BC,
when an Egyptian Pharaoh negotiated an extradition treaty with a Hittite King.
 International Criminal Courts

Newly-emerging international criminal tribunals exercising treaty-based criminal

jurisdiction means that extradition is now also possible to these non-State bodies.

Slide 07
Slide 08 Discussion – 2’
Slide 09 Ask the participants if they can name the different special international criminal
Slide 10 tribunals.
Slide 11 • ICTY, ICTR, SCSL, STL, …
Slide 12

Can a person be extradited without an extradition treaty or agreement?

Discussion – 2’
Ask the participants what they think about this.
If the participants think “No”, ask them why not?
Slide13 If they think “Yes”, ask the participants if they know how this is possible.

In some cases, a requested State will consider a request for extradition from a
requesting State with which it does not have formal extradition arrangements. This is
often known as “ad hoc” extradition. Whether ad hoc extradition is possible will
depend on the domestic law of the requested State. Even if an extradition request is
made without an applicable extradition treaty in place, it must be conducted in
accordance with the domestic law of the requested State.

VIDEO
Trainer’s Note – Scenario
To initiate the participant’s interest in this topic area, give an example to the
participants where and extradition was done without a bilateral treaty.
For example the extradition of Baki Sadiki from Kosovo to Slovakia. At the time
of the extradition (December-2012) Kosovo and Slovakia didn’t have a bilateral
treaty on Extradition.
 Learning Objective # 2: To list at least five (5) articles of the European
Convention of Extradition.

A unified extradition procedure has been adopted in the framework of the Council of
Europe.

The European Convention on Extradition and its two additional protocols is a

multilateral extradition treaty drawn in Paris in 1957 up by the member states of the
Council of Europe and in force between all of them.
Furthermore, the Committee of Ministers has adopted a package of guiding principles
to assist member states in the application of the convention. These principles basically
ensure the application of the guarantees afforded by Article 5 of the European
Convention on Human Rights in the framework of the extradition procedure.

The Convention is also available for signature by non-members which as of January

2012 are Israel, South Africa and South Korea.

During this lesson we will go through the most important articles of the European
Convention on Extradition and learn more about the terminology used in Extradition
Treaties or Conventions.

1. Dual Criminality
2. Political Offence
3. Extradition of Nationals
4. Ne Bis In Idem (Double Jeopardy)
Slide 14
5. Capital Punishment
6. Unfair Trial
7. Rule of Specialty
8. Torture
 1. DUAL CRIMINALITY

The principle of dual criminality in legal terms means that the subject can only be
extradited if the offence for which their extradition is sought is an offence in both the
requesting and requested State.

The reasoning behind the provision is that the requested State should be able to refuse
to extradite if they do not view the conduct of the subject as a criminal act.

Legal Notice – European Convention on Extradition

Article 2 § 1: Extraditable offences
§1
Slide 15 Extradition shall be granted in respect of offences punishable under the laws of
the requesting Party and of the requested Party by deprivation of liberty or under a
detention order for a maximum period of at least one year or by a more severe
penalty.
Where a conviction and prison sentence have occurred or a detention order has
been made in the territory of the requesting Party, the punishment awarded must
have been for a period of at least four months.

Explanation
Paragraph 1 specifies what offences are in principle extraditable; they must be
offences which are punishable under the law both of the requested Party and of the
requesting Party.

This paragraph lays down the principle of compulsory extradition. The requested
Party has no discretionary power to grant or refuse extradition. This rule is qualified,
however, by subsequent provisions which lay down certain exceptions.
The penalty has been fixed at “a maximum period of at least one year”.

The second part of this paragraph covers the case of a person who has already been
convicted. In such a case the sentence must be of certain duration (at least 4 months),
on the understanding that the condition laid down in the first part of the Article that
the offence must be punishable by a certain penalty (at least one year) in both the
requested and requesting country must also be fulfilled. Extradition is thus further
limited, but this is justifiable if it is desired to exclude certain minor offences.

Review-Discussion – 5’
Slide 16 Ask the participants if they understood the term ‘Dual Criminality’.
Ask them if they can explain with an example.
 2. POLITICAL OFFENCE

Article 3 of the convention provides that extradition shall not be granted if the offence
in respect of which it is requested is regarded by the requested party as a political
offence or as an offence connected with a political offence.

The term ‘political offence’ is not clearly defined under international law; whether an
offence is of a political nature is therefore likely to depend on the domestic law and
courts of the requested State.

Legal Notice – European Convention on Extradition

Article 3 § 1 & 2: Political offences
§1
Extradition shall not be granted if the offence in respect of which it is requested is
Slide 17 regarded by the requested Party as a political offence or as an offence connected
with a political offence.

§2
The same rule shall apply if the requested Party has substantial grounds for
believing that a request for extradition for an ordinary criminal offence has been
made for the purpose of prosecuting or punishing a person on account of his race,
religion, nationality or political opinion, or that that person’s position may be
prejudiced for any of these reasons.

Explanation
Paragraph 1 forbids extradition for political offences or offences connected with
political offences. It allows the requested Party to decide whether the offence is
political or not.

Paragraph 2 allows the requested Party to refuse extradition for an ordinary criminal
offence if it considers that the request for extradition was made for the purpose of
prosecuting or punishing a person on account of his race, religion, nationality or
political opinion. The requested Party can adopt the same attitude if it considers that
the position of the person claimed might be prejudiced for political reasons.
 Legal Notice – Additional Protocol
Slide 18 Article 1: Political offences
For the application of Article 3 of the Convention, political offences shall not be
considered to include the following:
a. The crimes against humanity specified in the Convention on the Prevention
and Punishment of the Crime of Genocide adopted on 9 December 1948 by
the General Assembly of the United Nations;
b. The violations specified in Article 50 of the 1949 Geneva Convention for the
Amelioration of the Condition of the Wounded and Sick in Armed Forces in
the Field, Article 51 of the 1949 Geneva Convention for the Amelioration of
the Condition of Wounded, Sick and Shipwrecked members of Armed Forces
at Sea, Article 130 of the 1949 Geneva Convention relative to the Treatment
of Prisoners of War and Article 147 of the 1949 Geneva Convention relative
to the Protection of Civilian Persons in Time of War;
c. Any comparable violations of the laws of war having effect at the time when
this Protocol enters into force and of customs of war existing at that time,
which are not already provided for in the above-mentioned provisions of the
Geneva Conventions.

Explanation
General remarks
The convention already contained certain limitations (Head of States) on the extent to
which an individual could avail himself of the concept of political offence as a
defence to a request for extradition.
The Additional Protocol concludes that there are other circumstances in which,
notwithstanding the motive underlying the offence, it would not be justifiable, in view
of the nature of the offence, that the individual should be able to evade extradition; it
considered that such circumstances existed when the offence in question took the
form of genocide, a war crime or a crime against humanity. This suggestion was in
line with what was considered to be a current trend towards defining political
offences and regarding certain crimes as so abominable that no immunity could be
granted. It has to be borne in mind in this context that, if extradition is refused, the
offender may escape punishment since the state where he is may lack jurisdiction
over the offence in question.

The effect of Chapter I of the Protocol is accordingly to add to the list of offences
which, for the purposes of Article 3 of the Convention on Extradition, shall not be
considered political offences, the following:
a. Any form of genocide;
b. Any war crime;
c. Any crime against humanity.
Slide 19 Review-Discussion – 5’
Ask the participants if they understood the term ‘Political Offence’.
Ask them if they can explain with an example.

3. NATIONALS

The nationality of the individual is one of the defences against extradition in the
European Convention on Extradition.

However the member states of the European Union have removed nationality as an
obstacle to the surrender of the individuals concerned.

The nationality restriction seems to be flexible today, since the Convention on the
Transfer of Sentenced Persons gives the opportunity for a person sentenced in the
requesting state to serve the sentence within that state or his or her home state.

In any case, if the state of nationality does not extradite on this ground it is required,
at the request of the requesting state, to submit the case to its competent authorities in
order for proceedings to be taken if they are considered appropriate.

Legal Notice – European Convention on Extradition

Slide 20 Article 6: Extradition of Nationals
§1
a. A Contracting Party shall have the right to refuse extradition of its nationals.
§2
If the requested Party does not extradite its national, it shall at the request of the
requesting Party submit the case to its competent authorities in order that
proceedings may be taken if they are considered appropriate. For this purpose, the
files, information and exhibits relating to the offence shall be transmitted without
charge by the means provided for in Article 12, paragraph 1. The requesting Party
shall be informed of the result of its request.

Explanation
Paragraph 1 allows the extradition of nationals if this is not contrary to the laws of
the requested country. But even in this case the requested country is not obliged to
extradite its nationals; it has the option of granting or refusing their extradition.
It was noted that in several states the extradition of nationals is forbidden, whereas in
other states the extradition of nationals is permissive.
 Under paragraph 2 of Article 6, if the requested Party does not extradite a person
claimed on the ground that he is a national, it is obliged at the demand of the
requesting Party to submit the matter to the competent authority, in order that the
person concerned may not go unpunished. Legal proceedings need not necessarily be
taken, but the requested Party is obliged to submit the matter to the competent
authorities.
Proceedings would be taken only if the competent authorities considered that they
were appropriate.

Slide 21 Review-Discussion – 5’
Ask the participants if they understood the term ‘Nationals’.
Ask them if they can explain with an example.

4. DOUBLE JEOPARDY – NE BIS IN IDEM

The term Double Jeopardy or ‘Ne Bis In Idem’ essentially means that a person should
not be tried or punished twice for the same offence.
This means that extradition for the purpose of prosecution can or should be refused if
the subject has already been tried or punished for the offence

Legal Notice – European Convention on Extradition

Article 9: Non bis in idem
Extradition shall not be granted if final judgment has been passed by the
competent authorities of the requested Party upon the person claimed in respect of
Slide 22 the offence or offences for which extradition is requested.

Extradition may be refused if the competent authorities of the requested Party

have decided either not to institute or to terminate proceedings in respect of the
same offence or offences.

Explanation
The first sentence of this article, which is mandatory, covers the case of a person on
whom final judgment has been passed, i.e. who has been acquitted, pardoned, or
convicted. Extradition should therefore be refused because it is no longer possible to
re-open the case.
The word “final” used in this article indicates that all means of appeal have been
exhausted.
 The second sentence, which is permissive, covers the case of a person in regard to
whom a decision has been taken precluding proceedings or terminating them,
particularly the case in which it has been decided that there are no grounds for
prosecution. In these circumstances extradition can be refused, but, if new facts or
other matters affecting the verdict come to light, this provision cannot be applied, and
the person must be extradited.

Review-Discussion – 5’
Ask the participants if they understood the term ‘Double Jeopardy – Ne Bis In
Slide 23 Idem’.
Ask them if they can explain with an example.

5. DEATH PENALY – CAPITAL PUNISHMENT

Trainer’s Note – Attention Grabber – Did you know?

Show a map of the capital punishment in the world.
Currently, Amnesty International considers most countries abolitionist.
Slide 24 The United Nations General
Assembly has adopted, in 2007, 2008 and 2010, non-binding resolutions calling
for a global moratorium on executions, with a view to eventual abolition.
Although many nations have abolished capital punishment, over 60% of the
world's population live in countries where executions take place, such as China,
India, the United States of America and Indonesia, the four most-populous
countries in the world, which continue to apply the death penalty (although in
India, Indonesia and in many US states it is rarely employed).
Each of these four nations voted against the General Assembly resolutions.

Legal Notice – European Convention on Extradition

Article 11: Capital Punishment
If the offence for which extradition is requested is punishable by death under the
law of the requesting Party, and if in respect of such offence the death penalty is
not provided for by the law of the requested Party or is not normally carried out,
Slide 25 extradition may be refused unless the requesting Party gives such assurance as the
requested Party considers sufficient that the death penalty will not be carried out.
 Explanatory report
Under this article extradition may be refused if the law of the requesting Party lays
down the death penalty for the offence committed by the person whose extradition is
requested and if the death penalty is not provided for under the laws of the requested
Party.

The requested Party may, however, grant extradition if the requesting Party gives
such assurance as may be considered satisfactory that the death penalty will not be
carried out.
The assurance given may vary according to the country concerned and even
according to the particular case.
It may, for example, be a formal undertaking not to carry out the death penalty, an
undertaking to recommend to the head of the state that the death penalty be
commuted, a simple statement that it is intended to make such a recommendation or
an undertaking to return the person extradited if he is condemned to death.
It is in any case for the requested Party to decide whether the assurances given are
satisfactory.

Legal Notice – European Convention on Human Rights

Protocol 6:
The Convention for the Protection of Human Rights and Fundamental Freedoms
concerning the Abolition of the Death Penalty (Strasbourg, 1983)

Slide 26 Protocol 13:

The Convention for the Protection of Human Rights and Fundamental Freedoms
concerning the abolition of the death penalty in all circumstances (Vilnius, 2002).

The Sixth Protocol to the European Convention on Human Rights (ECHR) abolishes
the death penalty in all States that have ratified the treaty.
Those States cannot extradite subjects to a country where they may be sentenced to
death or executed.

Review-Discussion – 5’
Ask the participants if they understood the term ‘Capital Punishment’.
Ask them if they can explain with an example.
Slide 27
VIDEO
 6. UNFAIR TRIAL

Extradition can (and in many States must) be refused on the grounds that the subject
will not receive a fair hearing in the requesting State.

Extradition may therefore be prohibited where the subject has been tried in absentia in
the requested State (having not deliberately absented themselves), unless the
reopening of the case is available.

Legal Notice – Second Additional Protocol

Article 3: Judgements in absentia
The Convention shall be supplemented by the following provisions:
“Judgments in absentia
Slide 28 §1
When a Contracting Party requests from another Contracting Party the extradition
of a person for the purpose of carrying out a sentence or detention order imposed
by a decision rendered against him in absentia, the requested Party may refuse to
extradite for this purpose if, in its opinion, the proceedings leading to the
judgment did not satisfy the minimum rights of defence recognised as due to
everyone charged with criminal offence. However, extradition shall be granted if
the requesting Party gives an assurance considered sufficient to guarantee to the
person claimed the right to a retrial which safeguards the rights of defence. This
decision will authorise the requesting Party either to enforce the judgment in
question if the convicted person does not make an opposition or, if he does, to
take proceedings against the person extradited.

Article 3 of the Second Additional Protocol complements the European Convention

on Extradition with regard to judgments in absentia, i.e. judgments rendered after a
hearing at which the sentenced person was not personally present.
At the origin of this amendment is the Netherlands reservation to the Extradition
Convention to the effect that extradition would not be granted if the individual
claimed had not been enabled to exercise the rights specified in Article 6.3.c of the
Human Rights Convention, i.e. to defend himself in person or through legal assistance
of his own choosing or, if he has not sufficient means to pay for legal assistance, to be
given it free when the interests of justice so require;

For example, Article 6 of the ECHR protects the right to a fair hearing, and the
European Court of Human Rights has previously confirmed that where there is a real
risk the subject will suffer a ‘flagrant’ breach of their right to a fair hearing in the
requesting State, extradition should not be allowed.
 Legal Notice – European Convention on Human Rights
Article 6: Right to a fair trial
§1.
In the determination of his civil rights and obligations or of any criminal charge
Slide 29 against him, everyone is entitled to a fair and public hearing within a reasonable
time by an independent and impartial tribunal established by law. Judgment shall
be pronounced publicly but the press and public may be excluded from all or part
of the trial in the interests of morals, public order or national security in a
democratic society, where the interests of juveniles or the protection of the private
life of the parties so require, or to the extent strictly necessary in the opinion of the
court in special circumstances where publicity would prejudice the interests of
justice.
§2.
Everyone charged with a criminal offence shall be presumed innocent until proved
guilty according to law.
§3.
Everyone charged with a criminal offence has the following minimum rights:
a. to be informed promptly, in a language which he understands and in detail, of
the nature and cause of the accusation against him;
b. to have adequate time and facilities for the preparation of his defence;
c. to defend himself in person or through legal assistance of his own choosing or,
if he has not sufficient means to pay for legal assistance, to be given it free
when the interests of justice so require;
d. to examine or have examined witnesses against him and to obtain the
attendance and examination of witnesses on his behalf under the same
conditions as witnesses against him;
e. to have the free assistance of an interpreter if he cannot understand or speak
the language used in court.

As the right to a fair trial holds such a prominent place in a democratic society, there
may be issues raised regarding its violation in the extradition hearing itself in the
requested state and where the person involved in the criminal proceedings has
suffered or risks suffering a flagrant denial of justice in the requesting state.

Review-Discussion – 5’
Ask the participants if they understood the term ‘Unfair Trial’.
Ask them if they can explain with an example.
Slide 30
 7. RULE OF SPECIALTY

Legal Notice – European Convention on Extradition

Article 14: Rule of Specialty
§1
A person who has been extradited shall not be proceeded against, sentenced or
Slide 31 detained with a view to the carrying out of a sentence or detention order for any
offence committed prior to his surrender other than that for which he was
extradited, nor shall he be for any other reason restricted in his personal freedom.

Explanatory report
Paragraph 1 of this article establishes the principle that an extradited person may not
be proceeded against or sentenced or detained for an offence other than that which
furnished the grounds for his extradition.

The principle of specialty is one of the traditional tools in the extradition framework
included in the European Convention on Extradition. It guarantees that the individual
concerned will not be prosecuted in a state for previous crimes other than for the ones
for which extradition was granted. If the principle is found to have been violated, the
person concerned must be released and allowed to leave the country, before he or she
may be tried for offences committed before his or her extradition.

Review-Discussion – 5’
Ask the participants if they understood the term ‘Rule of Specialty’.
Slide 32 Ask them if they can explain with an example.

8. TORTURE

Legal Notice – European Convention on Human Rights

Article 3 – Prohibition of Torture
No one shall be subjected to torture or to inhuman or degrading treatment or
punishment.
Slide 33
It will also be a violation of the prohibition on torture to extradite a person to a
country where they face a real risk of such treatment. This is provided for under a
number of international human rights treaties (directly or indirectly), including the
UN Convention against Torture (CAT), the European Convention on Human Rights
(ECHR), and the International Covenant on Civil and Political Rights (ICCPR).
The requesting State may (and will sometimes be under a legal obligation to) refuse
extradition where there is such a risk.
 More widely, in certain cases extraditing a person to a country where there is a real
risk they may be subject to inhuman or degrading treatment / punishment may also be
prohibited. Issues that may need to be considered when reviewing the risk include the
possibility of corporal punishment, and prison conditions within the requesting State.

Review-Discussion – 5’
Ask the participants if they understood the term ‘’Torture’.
Ask them if they can explain with an example.
Slide 34

Review of the Lesson Plan – Exercise

Trainer’s note:
An exercise will be done to review some of the topics in this lesson plan and to
assess if the participants understood the learning objectives in this lesson plan.

Exercise and group discussion – 30’

Divide the group in four (4) small groups of each five (5) participants.
Every group receives one (1) scenario that they should read and discuss within
their group.
Slide 35
Every scenario can be linked with at least one article (term) that was explained in
the Lesson Plan. Which one? – 10’
• dual criminality
• political offence (Edward Snowden)
• nationals
• double jeopardy (Nizar Trabelsi)
• Capital Punishment (Dorothy McCarthy)
• Unfair trial (Fatima Muhammadi)
• Rule of Specialty
• Torture
Afterwards one member of every group will present their scenario to the class and
explain and give arguments about the choice of their group – 4 x 5’

Review Exercise/Quiz – 10’

Keep the same groups of each three to four (3-4) participants.
Every group receives 4 symbols of International Courts and four names of
International Courts.
The goal is to link the symbols with the names.
 Summary

During this lesson plan we have learned the definition of extradition:

A legal process by which a person suspected or convicted of a criminal offence is
transferred from one country to another for the purpose of prosecution, or to serve a
Slide 36
sentence already imposed.

We also learned about the most important articles and terms within the European
Convention of Extradition
• dual criminality
• political offence
• nationals
• double jeopardy
• Capital Punishment
• Unfair trial
• Rule of Specialty
• Torture