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Report | Doc. 12905 | 24 April 2012
Draft fourth additional protocol to the European Convention on Extradition
Committee on Legal Affairs and Human Rights
Summary
The Parliamentary Assembly was invited by the Committee of Ministers to give its opinion on the draft fourth additional protocol to the European Convention on Extradition (ETS No. 24). The Committee on Legal Affairs and Human Rights finds that the draft protocol serves the purpose of streamlining and modernising the 1957 convention and thus welcomes it entirely.
A. Draft opinion
(open)The Parliamentary Assembly fully supports the draft fourth additional protocol to the European Convention on Extradition (ETS No. 24) and sees no need to propose any changes.
B. Explanatory memorandum by Mr Panţiru, rapporteur
(open)1. On 20 December 2011, the Committee
of Ministers invited the Parliamentary Assembly to present an opinion
on the draft fourth additional protocol to the European Convention
on Extradition (ETS No. 24).
2. The Assembly is aware of the sensitive nature of extradition
cases and fully recognises the problems which may be encountered
in dealing with these cases that involve the eventual removal of
individuals to a foreign jurisdiction. Extradition cases may therefore
raise human rights issues.
3. The Assembly has already dealt with extradition issues, in
particular in cases where a possible political motivation of the
underlying criminal prosecution was alleged. It called on States
to “refuse extradition whenever there are reasons to believe that
the person concerned is unlikely, for political reasons, to be given a
fair trial in the requesting State”. In
its recent Resolution
1840 (2011) on human rights and the fight against terrorism, it
also stressed the importance of the non-refoulement principle,
in particular in the context of interim measures under Rule 39 of
the Rules of the European Court of Human Rights, and expressed its
concern about reliance on diplomatic assurances.
4. Moreover, the European Court of Human Rights has confirmed
that, under the European Convention on Human Rights (ETS No. 5,
“the Convention”), aliens admitted to a State have no right not
to be extradited. The Court
has held that, in general, extradition proceedings do not fall under
the ambit of Article 6 of the Convention: “… decisions regarding
the entry, stay and deportation of aliens do not concern the determination of
an applicant's civil rights or obligations or of a criminal charge
against him, within the meaning of Article 6 § 1 of the Convention.” However, the Court
has also recognised that “an issue might exceptionally be raised under
Article 6 by an extradition decision in circumstances where the
fugitive has suffered or risks suffering a flagrant denial of a
fair trial in the requesting country.” The
recent judgment of the European Court of Human Rights in the Abu
Qatada case concerns such a situation and, once again, highlights
the intrinsic link between human rights and extradition.
5. Otherwise, it is the detention of persons with a view to extradition
which is of particular relevance. Under Article 5.1.f of the European Convention on
Human Rights, the lawful arrest or detention of a person against whom
action is being taken with a view to extradition is permitted. This
sub-paragraph does not impose an obligation on member States to
establish a specific time limit for detention pending extradition.
However, detention under Article 5.1.f should
not be arbitrary, and in this respect the length of detention “should
not exceed that reasonably required for the purpose pursued”. The Court has held that the
principle of proportionality applies to detention under Article
5.1.f to the extent that the
detention should not continue for an unreasonable length of time
and, thus, “any deprivation of liberty under Article 5.1.f will be justified only for as
long as deportation proceedings are in progress”. Otherwise,
the duration of the detention will be considered excessive.
6. The European Convention on Extradition dates from 1957 and
is one of the oldest European conventions in the field of criminal
law. It was recently supplemented by a third additional protocol,
providing a treaty basis for simplified extradition procedures.
This protocol was received favourably by the Assembly.
7. The underlying rationale to extradition procedures is that
extradition relations between States having comparable legal systems
and sharing the same values should be closer and more flexible,
with less need for exceptions and safeguards. To this effect, within the European
Union, the European arrest warrant, adopted in 2002 in the form
of a Framework Decision which had to be transposed by European Union
member States by 31 December 2003, replaced, within its area of
application, the traditional extradition system by requiring the
executing national judicial authorities to recognise, ipso facto and with a minimum of
formalities, requests for the surrender of a person made by the
issuing judicial authority of another European Union member State. The draft fourth protocol takes
these developments into account.
8. The principal aim of the draft fourth protocol is to modernise
a number of provisions of the European Convention on Extradition,
taking into account the evolution of international co-operation
in criminal matters since the entry into force of the convention
and its earlier additional protocols. To this end, it replaces the current
provisions on lapse of time (Article 10), on request and supporting
documents (Article 12), on the rule of speciality (Article 14) and
on transit (Article 21). It adds supplementary rules to the provisions
on re- extradition to a third State (Article 15), on channels and
means of communication and on friendly settlement. Finally, it defines
the protocol’s relationship with the convention and other international
instruments.
9. Overall, the proposed changes have been carefully drafted
by the European Committee on Crime Problems under the authority
of the Committee of Ministers and are well reasoned. They should
indeed serve the purpose of streamlining and modernising the 1957
convention and thus be welcomed entirely.