The Perils of the ‘Europeanisation’ of Extradition Procedures in the EU Mutuality, Fundamental Rights and Constitutional Guarantees
| Date | 01 June 2007 |
| Author | Theodore Konstadinides |
| DOI | 10.1177/1023263X0701400204 |
| Published date | 01 June 2007 |
| Subject Matter | Article |
14 MJ 2 (2007) 179
THE PERILS OF THE ‘EUROPEANISATION’ OF
EXTRADITION PROCEDURES IN THE EU
MUTUALITY, FUNDAMENTAL RIGHTS
AND CONSTITUTIONAL GUARANTEES
T K *
ABSTRACT
is article focuse s on the main problems regarding the current application of EU
extradition procedures in relation to the area of judicial cooperation in criminal matters.
It introduces the ‘Europeanisation’ of extradition procedures through a disc ussion based
on the continuity of the principle of mutua l recognition from the EC Treaties to the EU
Constitutional Treaty. e latest manifestation of this continuity is the introduction of
the European Arrest Warrant (adopted on 13 June 2002) that is aimed at simplifying
the extradition procedures for sus pected criminals within the te rritory of the European
Union by creating a positive list of criminal areas. e author discusses the innovations
introduced by the Framework Decision on the European Ar rest Warrant (abolition of the
test of dual criminality) and then focuse s on two main problem areas based on the reaction
of certain Member States: i) the compatibility with cons titutional guarantees, where the
author focuses on the eagerne ss of the national courts to contest th e constitutionality
of the EU Arrest Warrant implementation laws for authorising the e xtradition of their
own nationals; ii) the compatibility with Human Rights , where the author argues that
the principle of mutual recognition i s not adequate for adjudicating interstate c riminal
cases when it operates in isolation. e article then focuses upon the ba lance between
procedural e c iency and civil liberties and propos es certain procedural and institutional
checks that would assi st in moving from the current embr yonic stage of EU criminal law
to its adolescence.
* Lecturer i n Law at the University of Surrey. e author would l ike to thank Mr. Leslie Bla ke for his
valuable comment s on an earlier dra and Tim Si nnamon for the thought ful discuss ions.
eodore Konstadinides
180 14 MJ 2 (2007)
Keywords: European criminal law; ird Pillar; Freedom, securit y and justice;
Extradition procedures; Mutual recognition; Const itutional guarantees; Fundamental
rights
§1. THE EUROPEANISATION OF EXTRADITION: THE
CONTINUITY OF MUTUAL RECOGNITION
Extradition procedures between Member States had for a long time been based on
intergovernmental arra ngements controlled by the European Convention on Extradit ion
(1957), its Protocols2 and the Council of Europe’s European Convention on the
Suppression of Terrorism (1977).3 e 1957 Convention was ultimately complimented
by the ‘Convention on Simpli ed Extradition Procedure bet ween the Member States of
the EU’ (1996) and the ‘Convention on Extradition bet ween Member States of the EU’
(199 6). 4 e former Convention not only provided for the agreement of the requested
state to the surrender but also emphasise d the right of consent of the arrested person. e
latter Convention contemplated the standard extradition procedure in compliance with
Article 6 TEU, but precluded the arrested indiv idual from consenting to t he surrender.
In terms of the Communit y Pillar, the Schengen Implementing C onvention – itself an
intergovernmental arrangement – was i ntegrated into EC law by the Treaty of Amsterdam.
e Schengen Convention sets a com mon visa regime, improving coordination bet ween
the police, the cus tom authorities and the judiciary and ta rgets terrorism and organised
crime. It includes, inter alia, extradition provisions shared between t he participant states
by lodging a request in t he Schengen Information System. e Schengen Information
System contains information about persons wanted for arrest for extradition and since
2004 for transfer in the context of the European A rrest Warrant (Article 95, Schengen
Convention).5
e trend among Member States to establ ish a simpli ed and e cient procedure,
founded on the mutual con dence and respec t of the integrity of each ot her’s constitutions
and judicial systems, was manifested in Ar ticles 31(a), (b) and 34(2)(b) TEU. ese
Treaty provisions set out the rst series of targets providing for judicial cooperation in
criminal mat ters, the facilitation of extr adition and the adoption of framework decisions
for the purpose of approximating the laws and regulat ions of Member States. e
Tampere European Council (1999) endorsed the principle of mutual recog nition, which,
2 Protocol 1 of European Convent ion on Extradition (1975) and Protocol 2 of Eu ropean Convention on
Extradit ion (1978).
3 Available at http://conventions.coe. int/Treaty/en/Treaties/Htm l/090.htm (las t browsed 24th April 2007).
4 Available at http://europa.eu/scadplu s/leg/en/lvb/l14015b.htm (las t browsed 24th April 2007).
5 e Schengen Acquis – Convention Implement ing the Schengen Agreement of 14 June 1985 on the
Gradual Abolit ion of Checks at their C ommon Borders. Availa ble at: http://eurlex.europa .eu/smartapi/
cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=EN&numdoc=42000A0922(02)&model=gui
chett (last brow sed 24th April 2007).
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