114TH
INTERNATIONAL
TRAINING
COURSEVISITING
EXPERTS’
PAPERSVISITING EXPERTS’ PAPERS

MERITS OF MULTILATERAL TREATIES ON EXTRADITIONAND ON MUTUAL LEGAL ASSISTANCE INCRIMINAL
MATTERS; THEORY AND PRACTICE
Hans G Nilsson*,**I. INTRODUCTION
Co-operation in criminal matters hasdeveloped at rapid pace in Europe over the
past 5-10 years. The major contributing
factor to this development has been theincorporation of criminal law co-operation
into the objectives of the European Union
by the adoption of the so-called Treaty ofMaastricht (entry into force on 1 November
1993), which defined, in its article K.1,
judicial co-operation in criminal matters asa question of “common interest” to theMember States of the European Union.
Until then, criminal law co-operation in
Europe had taken place, since 1957, within
the framework of the Council of Europe,
an international, intergovernmentalorganisation which has its seat in
Strasbourg and has currently 41 Member
States, including all 15 Member States of
the European Union and a number ofCentral and Eastern European States sucha s H u n g a r y, P o l a n d , t h e R u s s i a n
Federation and Ukraine.
With the advent of a number of terrorist
organisations in (among other States) Italy,
S p a i n a n d G e r m a n y, c o - o p e r a t i o n
intensified in relation to certain types ofoffences already in the 1970s. In the
middle of the 1980s, however, some of theMember States of the European Union* Head of Division, Judicial Co-operation, General
Secretariat of the Council of the European Union,
Brussels, European Union**The views expressed are those of the author and do
not necessarily represent the views of theinstitution for which he works.

decided to intensify their co-operation
through more formalized channels. This
took the form of the creation of someworking groups within the framework of
the European Political Co-operation set up
under the Single European Act in 1987 and,in particular, by the adoption of the socalled Schengen Implementation
Agreement (often referred to as “theSchengen Convention”) in 1990. This latter
agreement has now become part and parcelof the general legal framework of theEuropean Union (in principle binding on
13 of the 15 Member States - the exceptions
are UK and Ireland) with the entry into
force, on 1 May 1999, of the Treaty of
Amsterdam.
The idea behind the Schengen cooperation, which largely joins the objectivesof the European Union, is to create one
single “area” where all border controls are
abolished and there is free movement of
persons, goods, capital and services.
However, in order to attain that objective,
it is also necessary to ensure that the
opening up of the borders do not create
uncontrolled immigration or increased
possibilities for criminals to commit theirdeeds without punishment. Therefore, socalled “compensatory measures” needed tobe adopted, inter alia in the field of mutual
assistance in criminal matters and inrespect of extradition. I will deal with thesignificance of these compensatory
measures to international co-operation
later.
In spite of the developments that havetaken place within the European Union
over the past 5-10 years, it is fair to say
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RESOURCE MATERIAL SERIES No. 57
that a substantial part of judicial cooperation in criminal matters is still based
to a large extent on the instruments of theCouncil of Europe, although in practicesome 75 -90 % of all requests for mutual
assistance are made between the Member
States of the EU. This is likely to change
within the next 10 years with theintensified co-operation with the 13
applicant States that wish to become
members of the European Union.
The European Conventions on
Extradition and on Mutual assistance incriminal matters, drawn up in 1957 and in
1959, respectively, have been ratified by all
15 Member States of the European Union(the Extradition Convention has been
ratified by an additional 24 States and the
MLA Convention by another 22 States,
figures which show their importance to cooperation in criminal matters within thewider family of European States). The
additional protocol to the MLA Convention
has been ratified by 13 of the Member
States of the EU whereas the two
additional Protocols to the Extradition
Convention have been ratified by 6 and by
11 Member States of the EU, respectively.
II. MUTUAL ASSISTANCE IN
CRIMINAL MATTERS
A. Basis for Mutual Assistancewithin the European Union
The single most important instrumentin this context is, as previously indicated,
the Council of Europe Convention of 1959
on mutual assistance in criminal matters,
as modified by the additional protocol of
1978. At the time when it was adopted it
was a very innovative instrument, and it
has certainly proved its value over theyears. In principle, all requests for mutual
assistance made within the European
Union are made on the basis of theConvention (exceptions are found in Nordic
co-operation, Benelux co-operation and in36

relation to the 1990 Laundering
Convention of the Council of Europe).
The Convention is designed to cover thewidest measure of mutual assistance incriminal proceedings. It provides, ingeneral, that the requested party shall
execute letters rogatory for the purpose of
procuring evidence or transmitting articles
to be produced in evidence in criminal
proceedings. It also provides for service ofdifferent types of procedural documents
and the appearance of witnesses, experts
and prosecuted persons for the purpose of
criminal proceedings.
Regarding procedure, the main rule isthat requests are dealt with between theCentral Authorities, i.e. in principle the
Ministry of Justice, of the parties. In
urgent cases, the judicial authority may
address the letter rogatory directly to its
counterpart in the requested State andmay, for that purpose, use Interpol
channels. The return of the letter rogatory
must however be made through the Central
Authority. In principle, requests may besent in any of the official languages of theCouncil of Europe (i.e. English or French
although reservation possibilities exist).
The Convention does not require that arequest for mutual assistance must be
granted in every case. In particular, parties
may refuse to execute requests which arelinked to essential interests and to politicalor fiscal offences and on the grounds ofnational security. However, the exception
for fiscal offences has been eliminated by
the 1978 Protocol. In addition, parties
having made a declaration to that effect,
may refuse requests for search and seizureon the grounds of:(i) double criminality,(ii) non-extraditable offence, or(iii)non-compatibility with its law.

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
The 1959 Convention is supplemented
by a number of instruments or
arrangements. There are, for example, thespecial arrangements between the Nordic
countries and the Benelux Treaty of 1962,
as modified by a Protocol of 1974. There
are also mutual assistance provisions in,for example, the 1990 Council of Europe
Convention on money laundering, search,
seizure and confiscation of the proceedsfrom crime. There are also the mutual
assistance provisions of the 1990 Schengen
Convention.
It should in this context be noted thatthe relevant Schengen provisions do not so
far apply to the UK and Ireland. However,that will almost certainly change in the
future.
The mutual assistance provisions of the
Schengen Convention are designed tosupplement and facilitate the applicationof the 1959 Convention and the Benelux
Treaty. The Schengen Convention
provides, in particular, for the following:(i) Mutual assistance in relation to certain
administrative proceedings which maylead to criminal proceedings andcertain proceedings which are linked tocriminal proceedings (Art. 49),(ii) Mutual assistance regarding excise
duties, VAT and customs duties (Art.
50),(iii)The possibility of refusing requests forsearch and seizure is limited ascompared with the 1959 Convention(Art. 51),(iv) Procedural documents may to a large
extent be sent directly by post to
persons in the territory of other
Contracting Parties (Art. 52),(v) Requests for mutual assistance may, asa rule, be processed directly between
the judicial authorities involved (Art.
53).

It is in particular in relation to the last
mentioned article where it can be said that
the Schengen Convention has changed, oris about to change, mutual assistancewithin the European Union.
As the 1959 Convention only provided
for the possibility of direct contacts between
judicial authorities in cases of urgent
requests, this leads in practice to the useof direct contacts in relatively few cases.
The judicial authorities preferred to send
their requests via the “normal channel”.
This could in practice mean that a requestfrom an investigating judge would be given
to the local prosecutor, who would send therequest via the hierarchy to the prosecutor
at the Court of Appeal who would forward
the request to the General Prosecutor who,
in turn, would forward the request to the
Ministry of Justice, which perhaps would
ensure translation of the request via the
Ministry of Foreign Affairs. In therequested State the request would possibly
be dealt with in the same (inverted) orderand the end result would be that the mere
process of sending the request andtranslating the documents would take 612 months.
The Schengen Convention has radicallychanged the situation in a number ofMember States of the EU and is in theprocess of changing it in others, although
it may be said that “old habits die hard”
for some judicial authorities who still prefer
to use the old procedures.
A country like the Netherlands receives
some 26,000 letters of request on a yearlybasis. Only about 10 % are received at theCentral Authority (mostly from non-EU
Members) and the remaining part is dealt
with directly by the judicial authorities.
The situation in other countries, such as
Belgium and France is similar and changes
are under way in Spain, Portugal and Italy.
The Nordic co-operation has for decades

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RESOURCE MATERIAL SERIES No. 57
been based on direct contacts between
judicial authorities and has, to some extent,
served as a model and a precursor to thedevelopments in the rest of Europe.
B. Achievements of the European
Union
Within the EU a lot of work has been
carried out in the area of mutual assistancesince the introduction of formalised cooperation in the field of justice and homeaffairs following the entry into force of theMaastricht Treaty. In particular, thefollowing steps have been taken:(i)

The EU Council adopted in 1997 an
Action Plan to combat organizedcrime. The plan is multidisciplinary
and it applies to police, customs andjudicial co-operation as well as
preventive measures. Regarding
mutual assistance, the importanceof the adoption of the draft EU
Convention on that topic has beenstressed. The fight against money
laundering is also an essential
element in the plan.

(ii)

Further strategic elements havebeen added by the 1998 Action Planof the EU Council and theCommission on how best to
implement the provisions of the
Amsterdam Treaty on an area of
freedom, security and justice. That
Action Plan also attached great
importance to improving andspeeding up judicial co-operation,
especially in view of thedevelopment of intensified police cooperation.

(iii)

In December 1997, the EU Council
adopted a Joint Action establishinga mechanism for evaluating theapplication and implementation at
national level of international
undertakings in the fight against

38

organized crime as part of theimplementation of the 1997 Action
Plan. Under that instrument, a
number of Member States havealready been evaluated in relation
to mutual legal assistance andurgent requests for the tracing andrestraint of property. The procedure
followed is that, first, aquestionnaire is issued and replied
to by each Member State regarding
the issues to be examined. Then
independent teams of experts visit
the relevant authorities of theMember States to gather further
information. This typically involves
visiting the Ministry of Justice, theprosecution authorities and thepolice (Interpol office). On thatbasis, the experts draw up a draft
report containing a description of
the facts and conclusions withrecommendations. The report isthen finalised in collaboration with
the Member State visited andadopted by the Multidisciplinary
Working Party on Organized Crime,
which is a Council working groupspecifically mandated to deal with
the Action Plan on organized crime.
The report remains confidential
unless the Member State evaluateddecides to make it public, which, sofar, always has been the case. The
process has proved to be extremely
useful. In this way all Member
States gain information on how thesystems of other Member Stateswork in practice and by the end of
the process a kind of handbook on
how MLA works in practice will
have been drafted. Certain
problems are identified to beaddressed, not only in the Member
State visited but also at moregeneral level. The evaluation
programme is a good example offocusing not only on the need to have

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
strong legal provisions on mutual
assistance in international
agreements, but also on the need totake appropriate legislative andadministrative measures atnational level for the purpose of
ensuring efficient co-operation.
(iv)

(v)

practical measures.
The Network, which so far has
met 5 times, has its own website
where legal instruments andratification status can be found(see http://ue.eu.int/JAI) and is in
the process of creating its own
Virtual Private Network - an
Intranet - which can be used fortransmitting requests,
information and for creating
discussion groups. A CD-ROM has
been produced containing thesame information and another isbeing produced which contains
information on special
investigative techniques, judicialorganisation and contact data forthe contact points.

In December 1998, the EU Council
adopted a Joint Action on money
laundering, the identification,
tracing, freezing, seizing andconfiscation of instrumentalities
and the proceeds of crime. This
instrument has, in particular, as its
purpose to ensure efficient
implementation of the 1990 Councilof Europe Convention on money
laundering, bearing in mind also the
EU Directive of 1991 on money
laundering and the 1988 United
Nations Convention against illicit
traffic in narcotic drugs andpsychotropic substances.

• A joint Action on good practice inmutual legal assistance incriminal matters. The instrument
requires each Member State toprovide a statement of goodpractice, which must include
certain minimum undertakings(e.g. to acknowledge requests
where requested to do so, to givepriority to requests marked“urgent” etc.). These statements
have been prepared by Member
States and have been madeavailable to the European Judicial
Network. Member States are also
obliged to periodically review theircompliance with their statementsof good practice.

In June 1998 the Council adopted
two instruments:• A Joint Action on the creation of
the European Judicial Network.
The purpose of the instrument is
to set up a network of judicial
contact points and Central
Authorities in order to facilitate
judicial co-operation and to help
establish direct contacts between
authorities involved in mutual
assistance. The Network has
regular meetings in Brussels andin Member States for contact
points to get to know each otherand for discussing practical andlegal problems encountered.
Where appropriate, experience
gained may be fed into therelevant working parties of the
EU for discussion and for thedevelopment of further legal and(vi)

It would also be appropriate tomention in this context that the EU
Council in 1997 adopted theConvention on mutual assistanceand co-operation between customs
authorities (Naples II). This
Convention contains provisions on
the relationship with mutual

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RESOURCE MATERIAL SERIES No. 57
assistance provided by judicial
authorities. The principle involved
is that where a criminal
investigation within the area
covered by the Convention is carriedout by or under the direction of a
judicial authority, that authority
decides whether requests for mutual
assistance should be made under
the Convention or underarrangements for mutual assistancein criminal matters. The provisionsof the Convention on controlled
deliveries, joint investigation teams
and covert investigations have, to awide degree, served as a basis fordrafting similar provisions in thedraft EU Convention on mutual
assistance.
(vii)

A further EU instrument which isparticularly relevant in relation tomutual legal assistance is the Joint
Action adopted in April 1996
establishing a framework for theexchange of liaison magistrates toimprove judicial co-operation within
the Union. The main objective increating that framework was toincrease the speed and effectivenessof judicial co-operation. Liaison
magistrates currently operate in
F r a n c e , G e r m a n y, I t a l y, t h eNetherlands and Spain.

C. Current Work on Legally Binding
Instruments on Mutual
Assistance in Criminal Matterswithin the European Union andelsewhere
The EU Council Working Party on cooperation in criminal matters has, for sometime, worked on the elaboration of aConvention on mutual assistance incriminal matters between the Member
States of the European Union. The draft(to a large extent in the way alreadyagreed) has recently been published in the40

Official Journal of the European
Communities and submitted to theEuropean Parliament for consultation.
The main objective of the Convention isto supplement what already exists. Thatmeans, in particular, the 1 959 Convention,
the Benelux Treaty, and the 1990 Schengen
Convention. That all sounds very simple.
But it is not. The integration of the
Schengen acquis into the EU implies inparticular the following: All provisions of
the draft Convention related to the
Schengen acquis must be examined with
Norway and Iceland (which was part of
Schengen but are not Member States of theEU) before adoption of the instrument. In
addition, the Schengen acquis does not for
the time being apply to the United
Kingdom and Ireland (which are Member
States of the EU). These elements havegiven rise to complicated procedural
discussions in Brussels.
The draft EU Convention contains inparticular the following provisions :(i) Further Development of Schengen:
Article 2: Mutual assistance shall beafforded in administrative proceedings
which may give rise to proceedings before
a court having jurisdiction, in particular,
in criminal matters, in cases involving
natural as well as legal persons.
Article 5: Procedural documents to besent from one Member State to anothershall be sent by post. There are certain
limited exceptions to that obligation.
Article 6: Requests for mutual assistanceshall be made directly between the judicial
authorities concerned. However, it ispossible in specific cases to make use ofcentral authorities. Also, a Member State
may declare that requests addressed to it
should be sent to its central authority. Only

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
the UK and Ireland will make use of thisoption, which for these countries simply
will mean the maintenance of the statusquo (one could, however, question if thisprovision is fully compatible with the
Schengen convention) .
Article 7: Spontaneous exchange of
information.
Article 12: Controlled deliveries.
(ii) Non-Schengen
Article 4: The requested Member State
shall comply with procedures indicated ina request unless doing so would be contrary
to its fundamental principles of law. Thisis a new development in international
mutual legal assistance practice and willconsiderably render mutual legal
assistance more efficient as it lays down
the principle of “Forum Regit Actum”.
Deadlines for execution set by therequesting State shall be respected to the
maximum extent possible (see also thepreviously mentioned Joint Action).
Article 8: This Article is optional andprovides that Member States may placearticles obtained by criminal means at thedisposal of another Member State with aview to their return to their rightful owner.
It specifically provides that where, onrequest, property has been handed over toanother Member State for the purpose of
criminal proceedings under the 1959
Convention or the Benelux Treaty, theMember State supplying the property may
waive the right to have it back for the
purpose of its restitution to its rightful
owner.
Article 9: The 1959 Convention isconcerned with cases where the requesting
State wants a person in custody transferred
to it from another State. Article 9 deals
with the situation where the requesting

Member State wants to transfer a person
in custody to the requested Member Statefor the purpose of criminal proceedings.
Article 10: This Article concerns thehearing of evidence by video conference andis one of the major achievements in thecontext of the convention. It provides thata Member State must comply with arequest for hearing experts or witnesses byvideo conference unless it would be against
its fundamental principles of law or it does
not have the relevant technical facilities.
The provision may, by mutual agreement,
also be used for hearings involving accused
persons.
Article 11: This Article is optional andconcerns hearing witnesses and experts bytelephone conference.
Articles 12, 13 and 14: The provisions
on controlled deliveries, joint investigation
teams and covert investigations have, tosome extent, been based on provisions of
the Naples II Convention. The articles arein particular of relevance in relation to thefight against organized crime and illustrate
how the gap between traditional judicial
co-operation and police co-operation isabout to lessen.
Articles 15 to 20: Interception of
telecommunications. This part of theConvention is considered to be very
important by all Member States. The
advantages of having clear legal provisions
on co-operation in this very sensitive area
are obvious. But more importantly, newtechnology; such as satellite
telecommunications, has created newopportunities for organized crime to avoid
interception and at the same time newchallenges for law enforcement.
Negotiations in respect of these provisions
are still on-going.
It is possible that the draft Convention

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RESOURCE MATERIAL SERIES No. 57
also will contain some provisions relating
to the protection of personal data. The EU
Council took a decision recently to aim atdrafting some provisions in that respect.
Discussions are on-going.
D. Other Work of Relevance to
Mutual Assistance within theEuropean Union
Work is also going on in relation tomutual assistance in other fora. In theCouncil of Europe a draft Second
Additional Protocol to the 1959 Convention
is currently under discussion. That draftcontains many provisions corresponding tothose of the draft EU Convention and thedraft EU Convention has of course to agreat extent inspired the drafting of theCouncil of Europe Second additional
Protocol. It will however have to beremembered that reservations possibly
may be made to the Council of Europe
Protocol whereas reservation possibilities
in the EU Convention will be extremely
limited.
Another important draft international
instrument containing mutual assistanceprovisions is the proposed UN Convention
on transnational organized crime. It is to
be expected that this Convention will be
adopted by the end of the year, if
negotiations are carried out as planned.
E. Final Remarks on Mutual
Assistance
There is a considerable amount ofactivity in Europe for the purpose of
improving mutual assistance in criminal
matters. This applies both in respect of
the need for appropriate legal provisions
as a basis for co-operation and as regards
the need to ensure efficient use of therelevant instruments at the practical level.
One of the difficulties that has been
experienced in Europe is that theborderline between what is regarded as
mutual assistance in criminal matters and42

what is considered to belong elsewhere, be
it police co-operation or customs cooperation, can be different from one
Member State to another. This may makeit difficult to agree on where in the systema particular issue should be dealt with (e.g.
joint investigation teams). However, thatis a problem that we simply have to livewith and tackle as best as we can.
Another challenge is how to ensure thatthe situation in so far as the legal
provisions are concerned is sufficiently
clear and easy to access for practitioners.
A practitioner will in a specific case needto know.
(i) what are the legal provisions governing
mutual assistance in the caseconcerned, and(ii) to whom does he have to address
himself to get the assistance?
Of course, the proliferation of
instruments, the possible conflict between
instruments adopted in different fora andthe variable geometry regarding theterritorial application of the different
instruments may sometimes make life alittle difficult for practitioners. However,
it is clear that significant progress has
been, and continues to be, made in thedevelopment and operation of mutual legal
assistance and it is undoubtedly an area
where further improvements will takeplace in the future.
III. EXTRADITION
A. Basis for Extradition within theEuropean Union
As with the mutual assistance incriminal matters, the single mostimportant instrument for extradition
within the European Union in this context
is the Council of Europe Convention of 1957
on extradition, as supplemented andmodified by the additional protocol of 1975

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
and the Second additional Protocol of 1978.
At the time when the European Convention
was adopted it was also considered to be avery innovative instrument, and it has
been reported that it replaced some 200
bilateral Treaties at the time. All
extraditions within the European Union
are in principle based on the Convention
which is a major achievement of theCouncil of Europe.
It should be recalled that the Convention
has been ratified by all Member States of
the European Union and is thus, in thesame manner as the MLA-Convention,
considered to be an inseparable part of theacquis of the Union. In fact, it is consideredthat the applicant States of Central- andEastern Europe seeking membership of theEuropean Union cannot become membersof the Union unless they have ratified thesetwo Conventions of the Council of Europe.
The Convention lays down an obligation
for the Contracting Parties to surrender toeach other, subject to certain conditions,persons against whom proceedings arecommenced or who are wanted for the
carrying out of sentences or detention
orders. Extraditable offences are thosewhich carry prison sentences in both Statesof at least one year or where thepunishment awarded is at least 4 months
imprisonment. The Convention thus
avoids the so-called list method by which
specific offences are enumerated.
The condition of double criminality mustbe fulfilled, although it can be argued that,on the side of the requested State, double
criminality in abstracto may be sufficient.
The Convention makes a number of
exceptions to the general obligation to
extradite. Although some of these
exceptions are in the form of a facultative
possibility of refusing extradition, it is clearthat some of them restrict the applicabilityof the Convention. It will later be shownhow the European Union has sought tolimit the exceptions between the Member
States of the EU.
Extradition may be excluded by reasonof the nature of the offence, for procedural
reasons or for reasons relating to theperson.
The exceptions concern (i) politicaloffences, (ii) offences for which therequested State has “substantial grounds
for believing” that the request was madefor prosecution or punishment on accountof race, religion, nationality or politicalopinion, (iii) military offences, (iv) fiscal
offences, (v) own nationals (coupled withthe principle of aut dedere, aut judicare),(vi) the place of commission of the crime,(vii) pending proceedings for the sameoffences, (viii) non bis in idem, (ix) lapse oftime, and (x) capital punishment.
The Convention provided initially, inprinciple, for the forwarding of requests
through diplomatic channels, although it
allowed for exceptions to this rule. But inpractice nowadays, because of article 5 of
the Second additional Protocol to theConvention, within the European Union
requests are in principle directly forwarded
between Ministries of Justice.
The Protocols to the Convention amends
the Convention in respect of certain
offences such as crimes against humanity,
certain fiscal offences, judgements inabsentia and offences for which amnesty
has been given.
B. Achievements of the European
Union
The practitioner knows that extradition
procedures are extremely slow andcumbersome. Also in cases whereextradition is consented to by the personsought, extradition may take up to one year

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RESOURCE MATERIAL SERIES No. 57
because of internal procedures in therequested State.
This state of affairs cannot be consideredsatisfactory. Justice delayed is justicedenied and in particular in the interest of
the victim it is of importance not to delay
extradition unnecessarily where thesuspect consents to his extradition.
It was in recognition to these types ofconsiderations that the European Union
decided to supplement the 1957
Convention by the drafting of two
Conventions; one dealing with simplified
extradition and the other of a more generalkind. It may be noted that according tosome estimations made by extradition
experts, within the European Union
extradition requests are consented to in
about 30 % of the cases and that the
average time for extradition in such cases
has been some 8 months for extradition.
The Convention on simplified
extradition, adopted in 1995 and ratified
to date by 6 Member States (moreratifications soon to follow), provides thatthe person sought may be returned without
a formal court hearing, subject to thefinding by a judicial authority that theconsent has been expressed voluntarily andin full understanding of the legal
consequences thereof.
The Convention has also addressed thequestion whether consent to extradition
and waiver of a court hearing implies awaiver of the protection by the speciality
principle. Since no agreement could bereached on this issue during the draftingof the Convention, the States which wantto preserve the right to submit theextradition to the guarantee that the
speciality principle shall be respected cando this through a declaration made at thetime of ratification of the Convention. In
principle, however, consent to be extradited

44

implies consent to the possibility to beprosecuted also on other charges than thosecontained in the extradition request, or in
the request for provisional arrest.
The second Convention, adopted in 1996
and currently ratified by 6 Member States(also here more ratifications will soon
follow) addresses a number of the
exceptions to extradition provided for in the1957 Convention and seeks to lift a numberof taboos in relations between the Member
States of the European Union. It has been
considered that between the Member
States, which seek to create an area of
freedom, security and justice by the entry
into force of the Treaty of Amsterdam,
traditional obstacles to extradition should
be reduced as much as possible.
It has therefore been provided in theConvention as general principles thatextradition should not be refused inrelation to certain of the exceptions
mentioned above under the 1957
Convention. These concern:(i) political offences,(ii) fiscal offences,(iii)the requirement of double criminality
for certain organized crime offences,(iv) extradition of own nationals,(v) speciality principle, and(vi) time limitations.
During the negotiations on thisConvention, it was not possible to reach fullconsensus even within such a closely
integrated area as the European Union.
Some of these issues, such as the nonextradition of own nationals, are dealt within the constitutions of the Member States,
and for that reason reservations have been
made possible but with the clearly
expressed intention that these reservations
be lifted in due time. In particular in
relation to the non-extradition of own
nationals, this is clear as a specific system

114TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERSof temporary reservations has been set up
which must be extended from time to time,
if they are not to lapse automatically.
The Convention states as a general rulethat the political offence exception shall not
apply between the Member States. It is,however, possible to enter a reservation tothis provision, but not with respect tooffences which are covered by the Councilof Europe Convention on the suppressionof terrorism from 1977. These include not
only offences defined in a number of UN
Conventions (on high-jacking, the safety ofcivil aviation and the taking of hostages)
but more generally serious offences ofviolence affecting the life, physical integrityor health of persons.
Similarly, the Convention provides as a
general rule that the fiscal offence
exception shall not apply between Member
States of the EU. Again, it is possible toenter a reservation, but not in respect ofoffences concerning customs duties,
turnover tax and other indirect taxes. It is
unlikely that more than one Member State
will make a reservation in this context.
On double criminality in relation tocertain serious offences, a new avenue has
been explored. In principle therequirement has been retained, even if theexisting thresholds of punishability havebeen lowered; it suffices that the offence
carries as a maximum one year
imprisonment in the requesting State andonly six months in the requested State.
However, with a view to be able to bettercounter various forms of organized crime,and more particularly the various forms ofparticipation in the activities of organizedgroups as they have been criminalized in
the Member States, the Convention
provides that with respect to these formsof participation a strict requirement of
double criminality shall not apply. This isirrespective of whether the offence has been
defined a conspiracy or an association ofwrongdoers, or as an affiliation to mafiatype organisations or as membership of
criminal organisations or as acts ofparticipation in offences committed or tobe committed by others.
Reservations are also in this caseallowed for, but only if the Member Statein question have criminal legislation inplace criminalizing forms of participationor preparatory acts as defined in theConvention with respect to a wide range ofserious offences, in particular those which
are commonly committed by way of crossborder organized crime. This provision
should reduce problems of double
criminality to a minimum.
This solution to extradition in relation
to certain serious crimes took quite sometime to develop but may be seen as aninteresting development in the field ofextradition law. It is a way of reconcilingthe necessity of co-operation in relation inparticular to serious crime with a drive
towards greater harmonisation of thecriminal laws of the Member States;
something which was also debated in themeeting of the Heads of State andGovermment at Tampere referred to below.
The non-extradition of own nationals iscommonly recognized as a principle ofextradition law by States belonging to thecivil law tradition whereas countries
belonging to the common law tradition
often extradite their own nationals.
Coupled with these differences is the policy
relating to the establishment of
extraterritorial criminal jurisdiction overoffences committed by nationals wherecommon law countries usually take a more
restrictive approach.
In view of the constitutional obstacles
in some Member States such as Germany,

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RESOURCE MATERIAL SERIES No. 57
it was felt necessary during the drafting of
the Convention to allow for a system of
temporary reservations to be able to besubmitted. The temporary reservations
will have to be prolonged and if they are
not they will lapse. Through the creationof this system, it became clear that thepolitical will of the Member States is tomake no distinctions, within the Union,
between citizens of the Union somethingwhich can be seen as a rupture withconcepts which have been taken for granted
for centuries.
On the speciality principle theConvention has in the first place clarified
which actions by the requesting Member
State are not considered as falling under
the actions which can only be performed
subject to the consent of the requested
State. In the second place the Convention
has given the right to the person concerned
to waive his claims to protection under the
speciality principle, irrespective of theviews held on this by the requested State.
On time limitations, finally, theConvention provides as a rule thatprovisions on time limitations in the lawof the requested State should in principle
be ignored, unless that State has, according
to its laws, also jurisdiction over the offence
for which extradition is requested.
C. Schengen Developments
The Schengen Convention of 1990
contains also provisions on extradition,some of which have been taken over in thepreviously mentioned two EU Conventions.
These provisions relate, for instance, toamnesty, time limitation, certain simplified
extradition, certain fiscal offences andchannels for sending requests. One
important consequence of the adoption of
the Schengen regime is that an “alert”
entered into the Schengen Information
System, a computerized system which isavailable in all 13 Schengen Member

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States, has the automatic effect of a request
for provisional arrest under article 16 of
the European Convention on Extradition.
This means in practice that if a bordercontrol officer finds out, when he controls
a person in the SIS computers that an“alert” has been introduced in the system,he shall immediately arrest the person or
ensure that the competent police
authorities proceed to his arrest. It was insuch a way that the Italian authorities
arrested Mr Öçalan, the Kurdish leader forwhom Germany had entered an “alert” on
the basis of arrest warrants made byGerman judicial authorities. It is anothermatter that the German authorities
thereafter did not proceed to a formal
extradition request.
D. Current Work on Legally Binding
Instruments on Extradition
within the European Union
There is at present no work relating to
extradition ongoing within the European
Union. However, the Treaty of Amsterdam
specifies expressly that work should bestarted to further facilitate extradition andthe conclusions of Tampere also indicatethat more work should be undertaken.
Therefore, it is to be expected that new
avenues will continue to be explored.
Moreover it is possible that within theframework of the system set up for mutual
evaluation of international undertakings,
a new topic on extradition might be selected
within the next 1-2 years. This would seemto be a logical consequence of theevaluations which have been carried out
on mutual assistance in criminal mattersand urgent requests for seizure of assets
referred to above.
E. Final Remarks on Extradition
Extradition is still seen as a matter
which is very close to the sovereignty of theMember States. However, it is clear thatwithin the European Union there is a drive
towards simplifying and speeding up

114TH INTERNATIONAL TRAINING COURSE
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extradition, although we are probably still
far away from the creation of an area of
extradition law where the formalised
extradition procedures are replaced by asimple system of return of fugitive
offenders, based on simple mutual
recognition and enforcement of arrest
warrants, with only very limited cases left
in which refusals to co-operate in this fieldwould be justified.

This special meeting of the European
Council was held at Tampere (Finland)
under the Chairmanship of the Finnish
Prime Minister who then held thePresidency of the Council. It debated threemain themes: A common EU Asylum andMigration Policy, A Genuine European Areaof Justice and A Unionwide Fight Against
Crime and adopted the so-called 10“Tampere Milestones”.

Every time when calls have been madefor more simple and rapid procedures,
human rights lawyers have protested andclaimed that the rights under the Geneva
Convention would be violated if a simple
system of rendition would be adopted andthat not even within the European Union
one can forego court procedures in spite of
the fact that all Member States havesubscribed to the European Convention on
Human Rights and should have procedural
legislation which is in conformity with thatconvention. The debate on this issue is by
no means closed and will continue inparticular in the light of the results of theTampere Summit referred to below.

These milestones contain specificdecisions which are relevant to MLA andto extradition. Paragraphs 33, 35 and 36
of the conclusions provide:

IV. THE EUROPEAN COUNCIL AT
TAMPEREThe entry into force of the Treaty of
Amsterdam on 1 May 1999 has by many
been seen as a qualitative leap for theEuropean Union in the area of Justice andHome Affairs. For the first time, theobjective of creation of “An area ofFreedom, Security and Justice” was spelled
out in the Treaty and specific actions to thatend were provided for in the Treaty which
is a kind of Constitution for the European
Union. It was therefore not surprising that
the European Council, consisting of the
Heads of State and Government of all
Member States decided to convene, only forthe second time in the history of the EU, aspecial meeting to discuss the realisationof the new objectives.

“Enhanced mutual recognition of
judicial decisions and judgements and thenecessary Approximation of legislation
would facilitate co-operation between
authorities and the judicial protection ofindividual rights. The European Council
therefore endorses the principle of mutual
recognition which, in its view, should
become the cornerstone of judicial cooperation in both civil and criminal matters
between the Union. The principle should
apply both to judgements and to otherdecisions of judicial authorities.... It
considers that the formal extradition
procedure should be abolished among theMember States as far as persons areconcerned who are fleeing from justice after
having been finally sentenced, and replaced
by a simple transfer of such persons...
Consideration should also be given to fast
track extradition procedures, without
prejudice to the principle of fair trial.... The
principle of mutual recognition should also
apply to pre-trial orders, in particular to
those which would enable competentauthorities quickly to secure evidence andto seize assets which are easily movable....”In the background to these decisions wasa proposal in particular by the United
Kingdom to intensify work on mutual
recognition in relation to MLA and to47

RESOURCE MATERIAL SERIES No. 57
extradition. As a result of the Tampere
decision, it is probable that we will see adevelopment whereby it is explored if
extradition could be made more automatic,
at least where a person has been finallyconvicted of an offence and then seeks toevade the consequences of his conviction.
Work will also begin on the very difficult
issue of freezing of assets in anothercountry where there is a risk that the asset
may be transferred out of the jurisdiction(for instance funds on bank accounts which
may be quickly dissipated). It is probablethat such work needs to be coupled with
the question of certain minimum standards
which must be adhered to and thus beextremely sensitive and difficult.
The discussion on the principle of mutual
recognition should also be seen in
conjunction with another decision of theEuropean Council, namely the setting up
of a unit called EUROJUST, composed ofnational prosecutors, magistrates, or police
officers of equivalent competence, detachedfrom each Member State according to its
legal system. This unit would have the taskof facilitating the proper co-ordination ofnational prosecuting authorities and of
supporting criminal investigations inorganized crime cases. A legal instrumenton the setting up of this unit will have tobe adopted before the end of 2001. One of
the ideas which will be discussed in thecontext of EUROJUST is whether thesenational magistrates, which will probably
be detached to The Hague as Europol also
has its seat there, will be able to takeprovisional measures and freeze for
instance bank accounts in their own
countries in accordance with their national
legislation.
V. CONCLUDING REMARKSAs will be understood from this brief
exposé, which by necessity must be madein a cursory manner, the legal situation

48

concerning both mutual assistance incriminal matters and extradition within
the European Union is extremely complex.
It has in fact become so complex so that
also specialists have difficulties in fully
understanding the law and grasping all thedetails. The practitioner will have to know
a number of multilateral treaties (Councilof Europe, EU, UN, Schengen, Benelux...),
various Joint Actions of the EU and alsointernal legislation, guidelines,
instructions and directives in order to beable to use efficiently all possibilities.
Moreover, since the tendency, inparticular in mutual assistance, is to havemore and more direct contacts between
judicial authorities, it is clear that for
instance a prosecutor who only deals witha few letters rogatory per year will havedifficulties in carrying out his tasks
efficiently. This has in turn led to measuresin some countries whereby specifictraining, in particular in languages, hasbeen given to certain prosecutors andclustering of prosecutors made so that only
those specialised in mutual assistanceactually send and receive requests.
Computerised systems are also under way,whereby police and prosecutors are
assisted in the drafting of mutual
assistance requests, so that nothing isforgotten in the processing of the request
and all translations of necessary legislation
can be provided immediately by the system.
An example of such a system is the socalled KRIS system developed in the
Netherlands. At the same time, efforts
undertaken by the European Union not
only to set standards for norms but also
actually to deal in practice with judicial cooperation are bearing fruit (setting up of
the European Judicial Network, providing
access to telecommunications, productionof CD-Roms and creation of websites,
standards of good practice, mutual
evaluations...).

114TH INTERNATIONAL TRAINING COURSE
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Although one can be reasonably
optimistic about the future and about thefact that much finally is being done to bringjudicial co-operation at least up to the same
standards as police co-operation, one canstill question whether the measures which
are being taken are enough to ensure an
efficient fight in particular againstorganized crime which has extremely
powerful resources at its disposal. In any
case, efforts at multilateral level, be it theEuropean Union, Council of Europe or UN,
are encouraging and should be intensified.

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