Extradition
Extradition refers to the transfer of an accused or convicted person from one country to another. Extradition reflects a fundamental agreement between nations that sufficiently serious crimes must not go unpunished. Extradition is based on legal reciprocity or a treaty signed by both nations. However sometimes extradition is used for political purposes, not just legal ones. An immediate legal response will be required when a person is targeted for extradition to another country on charges of crimes that may or may not be credible. Our lawyers offer guidance in the early stage of the proceedings, for example we may challenge Interpol Red Notices or an European Arrest Warrant before our client has been arrested.
European Arrest Warrant
The European Arrest Warrant (EAW) is an arrest warrant valid throughout all member states of the European Union (EU). Once issued, it requires another member state to arrest and transfer the accused or sentenced person to the issuing state for the purpose of:
- conducting a criminal prosecution
- executing a custodial sentence
- executing a detention order
The EAW applies in the following cases:
- where a final sentence of imprisonment or a detention order has been imposed for a period of at least four months
- for offences punishable by imprisonment or a detention order for the a maximum period of at least one year
Double criminality?
Double criminality is a concept of international extradition law by which countries may refuse to extradite persons if the conduct which is alleged to have constituted a criminal offence in the state requesting extradition would not have resulted in the commission of a criminal offence in the country being asked to execute the extradition. Under the EAW Framework Decision, the requirements for double criminality is removed for a wide range of categories of crimes. If the crimes are punishable in the issuing state by a custodial sentence of at least three years, the following offences, among others, may give rise to surrender without verification of the double criminality of the act:
- cybercrime
- corruption
- counterfeiting currency
- crimes within the jurisdiction of the International Criminal Court
- fraud
- trafficking in human beings
- trafficking in stolen vehicles
- participation in a criminal organization
- murder
- rape
- racism and xenophobia
- sabotage
- terrorism
For other criminal acts in the EU surrender may be subject to the condition that the act for which extradition is requested constitutes an offence under the law of the executing member state (double criminality law).
Extradition defense
Defending extradition is not the same as regular criminal defense. An experienced extradition defense attorney may be able to prevent the extradition. To fight the extradition our lawyers may examine international treaties, attack the foreign extradition package including the foreign indictment or other accusatory documents, and invoke a defense under the rule of double criminality. Think of the following possible defences:
- double jeopardy or ''ne bis in idem'' - nobody may face proceedings for the same offence twice
- passage of time - where so much time has passed since the original offence or conviction that is unfair or oppressive to proceed against a defendant
- the age of the person - a member state can refuse when the person is a minor and has not reached the age of criminal responsibility under its national law
- convicted in absence - when convicted in absence involuntary the requesting country must guarantee the possibility of a retrial
- extraneous issues - the warrant has in fact been issued to persecute a person, or the suspect faces prejudice on return as a result of his/her race, gender, religion, sexuality or political beliefs
- forum - the offence should be prosecuted in The Netherlands rather than the requesting country
- abuse of process
- failing to comply with human rights - the extradition doesn't comply with the human rights under the European Convention on Human Rights
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