EU: "Involuntary" extradition
01 January 1996
At its meeting on 23 November 1995 the Council of Justice and Home Affairs Ministers adopted a Declaration on Extradition which set out the progress made on the draft "Convention on the improvement of extradition between Member States of the European Union". This draft Convention is known as the "involuntary" one as it is intended to complement the "Convention on Simplified Extradition Procedures" signed on 10 March 1995 (known as the "voluntary" extradition Convention where the individual consents).
The Declaration says that "most delegations agree on the principles which are to govern the extradition of nationals.." This is intended to override Article 6.1.a of the 1957 Council of Europe Convention on Extradition which states that: "A Contracting Party shall have the right to refuse extradition of its nationals". A report from the K4 Committee shows that there was a major divide between the governments over this issue. "Detailed discussion of this question has shown it to be a particularly difficult issue". The German, Austrian, Finnish, Greek, Portuguese and Swedish delegations said the extradition of nationals was forbidden under their constitutional laws. The Danish delegation said that "while its constitution did not provide for such prohibition, extradition of nationals was a very delicate political matter in Denmark". The Netherlands delegation entered a reservation.
A connected issue is that of re-extradition between member states. The draft Convention says that the "requested state" (ie: where the person is being held in custody) does not have to consent to the "re-extradition" of the person by the "requesting state" to another Member State (Article 8; overturning Article 15 of the Council of Europe Convention)). This idea produced another major division of opinion. The Finnish, Portuguese, French, Irish, Danish, Swedish and Greek delegations opposed this proposal. The Netherlands, German, Spanish, Italian and UK delegations were in favour.
The most contentious issue, and the main motivation for seeking to bypass the Council of Europe Convention on Extradition, is that of "political offences" (Article 6 of the CoE Convention). The Declaration agreed on 23 November, and drafted by the Spanish Presidency, says:
"a solution should be sought to the question of refusal to extradite on the grounds of the political nature of the offence, in consideration of Member States' confidence in each other's legal orders and judicial systems."
Or as Mr Belloch told a press conference: "political crimes are unjustified in the EU... terrorists crimes are never political... we deny the very category of political crimes".
The Council of Europe Convention on Extradition 1957 says in Article 3:
"Extradition shall not be granted if an offence in respect of which it is requested is regarded by the requested Party as a political offence or an offence connected with a political offence."
The draft EU Convention says in Article 3.1:
"For the purpose of extradition between Member States no offence shall be regarded by the requested State as a political offence, as an offence connected with a political offence or an offence inspired by political motives."
Only the Finnish delegation indicated its opposition to this Article. The Danish, Luxembourg and Swedish delegations entered "scrutiny reservations" (ie: the government was not opposed but their parliaments might have to consulted). The Irish government wanted it as a general rule with the possibility of entering reservations on its application. The draft Article 3 would allow a requested State to refuse extradition where it has "substantial grounds for believing" the request was based on a person's race, religion, nationality or political opinion (reflecting Article 3.2 of the CoE Convention).
Finally, the Council of Ministers at last produced an "explanatory report" on the Convention on Simplified Extradition they had signed eight months previously on 1