Abstract. The article provides a holistic evaluation of the recent development in extradition law post 9/11 in order to argue that that organised transnational crime has developed ahead of the changes whilst meantime States are caught up in constitutional controversies. A subtext is the potential for enhanced extradition procedures to be misused with justification sought by reference to the essentials of combating transnational crime. What is apparent is that the developments show how extradition law is at the critical interface of national and international law and that Extradition is intrinsically a powerful tool but cannot stand alone in the fight against transnational crime.
Extradition is the official process by which one nation or state surrenders a suspected or convicted criminal to another state and it is regarded as an essential tool of international law enforcement in relation to transnational crime. The legality and ethics of extradition procedures regulated by treaties are currently in the spotlight. Not only does this distract us from the question of its effectiveness as a tool to combat transnational crime, but it also triggers questions related to the effectiveness of the procedure in the legitimate fight against transnational organised crime and the possibility of the abuse of the procedure at an international level for political purposes. This article considers the extent to which extradition law has developed post 9/11. In order to provide a holistic evaluation of recent developments in extradition law the article considers the following regional areas: Europe, UK/USA, Africa and Asia/Pacific. This is largely an artificial division imposed on this article because extradition by its nature can take place across those divisions. Whilst extradition and transnational crime takes place across these divisions this paper is designed to emphasise that one cannot talk of a linear and coherent development in extradition law as there are significant variations in terms of applicable procedures. Therefore it is questionable whether extradition procedures can effectively tackle the threat imposed by transnational organised crime.
The multiple definitions of transnational crime supported by different states have been the subject of much academic analysis. However, the analysis on the subject matter has not yet resulted in the development of a comprehensive definition of transnational crime. According to Martin and Romano, 'transnational crime may be defined as the behavior of ongoing organizations that involves two or more nations, with such behavior being defined as criminal by at least one of these nations.' [1] On the other hand Bossard defines transnational crime as the crime occuring where part of the offence involves 'crossing at least one border before, during or after the fact'.[2] According to his definition transnational crime is not limited to people physically crossing borders but it also includes the movement of materials (e.g. arms smuggling) and electronic transactions (e.g. computer fraud).[3] Therefore transnational crime comprised two key elements: the crossing of a national border and the international recognition of the activity as an offence.[4] Following from the above definition a crime cannot be considered as transnational until more than one state recognises the activity to amount to a criminal offence, and that recognition can be derived from an extradition treaty or international convention for example.[5] The fact that the elements are clearly interlinked with the question of jurisdiction is an important issue as it is further shown in the United Nations Convention against Transnational Organized Crime. Article 3 (2) of the United Nations Convention against Transnational Organized Crime defines transnational to include crime groups operating in more than one State, organisation or control taking place in more than one State or committed in one State with 'substantial effects' in another. Therefore transnational crime involves either individuals or coordinated groups, and defining offences is problematic as shown in the drafting history of the UN Convention. It is also clear that agreeing on what the offence is, its scope, and identifying where and how the acts took place are all live legal issues and as will be argued later this militates against a universally agreed extradition procedure in the fight against transnational crime. Indeed McClean in his commentary shows that in the negotiating history to UN Convention there was disagreement between
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states over how to define transnational organized crime and disagreement as to what offences to include in this (terrorism being cited as one example) and whether to list categories of offences or leave this open to interpretation by states.[6]
Extradition has become recognised as a major element of international cooperation in combating crime, particularly transnational crimes such as drug trafficking and terrorism. Extradition is the legal act of returning a fugitive from the State in which he/she is (the requested State) to the State seeking extradition (the requesting State), under a mutual provision for doing so.[7] In reviewing recent developments it is useful to think of a model for extradition and typical problems involved, and against this assess where the law now stands. It has been suggested that the ideal extradition model would be one that adopts the common principles identified by Gilbert: timely and quick transfer of a fugitive from one state to another by a 'streamlined and coherent procedure' legally acceptable to both states.[8]
Bilateral treaties are the most common form of extradition arrangement but are least suited to changing circumstances by their prescriptive nature with different approaches taken to each treaty and differences in practice.[9] Thus, in recognition of the need for a coherent approach multilateral agreements have evolved.[10]
Formulating effective extradition procedure for transnational crime involves a number of connected issues.[11] A challenge for extradition in the context of transnational crime is the principle of double criminality where an offence specified in the extradition request has to be recognised as a criminal offence by both parties to the request. The suggested solution has been to take a subjective approach of finding corresponding offences[12] as opposed to finding the precise equivalence.[13] However, when combined with the question of jurisdiction, this solution poses a problem when the elements of the offence or its results occur outside the territory of the requesting State.[14] The problem of the double criminality principle and jurisdiction is exacerbated when inchoate elements take place in the requesting State and the intention is for the result to take place elsewhere,[15] since approaches vary between States.[16]
There are currently opposing views on the effectiveness of extradition in the fight against transnational crime. One view is that extradition enables the international community to respond effectively to transnational crime on the grounds that it removes the 'barriers of sovereignty' exploited by criminal organisations.[17] An opposing view is that extradition cannot counter sophisticated international crime networks. In the context of money laundering extradition is considered redundant where crime network bosses cannot be identified.[18] Instead, civil confiscation powers are considered more effective to fight international crime networks.[19] Therefore extradition is not a panacea for tackling transnational crime and its Achilles heel is identifying individuals and the locus of criminal acts. Given the ease with which criminals can move from State to State, extradition procedure cannot be severed from effective mutual legal assistance.[20]
One of the most recent developments in the post 9/11 era is the European Arrest Warrant (the EAW). Under the third pillar (Justice and Home Affairs) created by the 1992 Maastricht treaty the idea for the EAW of 'simple transfer' in place of formal extradition was created as part of the 1999 Tampere summit proposals.[21] A measure of the efficacy of the EAW is a reduction in extradition times from nine months to 43 days on average.[22] Superficially this suggests extradition is a more responsive against transnational crime. However, whilst the 2001 events renewed cooperation between States, other mechanisms for cooperation such as mutual legal assistance have failed to keep pace with the development of extradition law.[23] For example, Brady refers to protracted negotiation of the European Evidence Warrant and following the 2004 Madrid bombings the failure to ratify legislation connected with anti-terrorism measures.[24] Brady considers a lack of harmonisation undermines the effectiveness of the EU in fighting transnational crime.[25] This shows that for international cooperation to work there needs to be an effective national infrastructure. According to Brady 'it is at the national level and below where the fight against transnational crime takes place'.[26]
The reality that transnational crime originates outside the EU with an extensive international network [27] suggests that extradition procedures have to be effective on an international scale. Problems of international cooperation can be identified with transatlantic links for international crime.[28] In 2005/6 the US negotiated in excess of 20 separate instruments on cooperation and extradition with EU member states.[29] This illustrates that outside of networked States the system for mutual recognition of extradition does not transport across so third party States
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have to deal with each State on individual terms. Consequently extradition is an admixture of bilateral and multilateral treaties creating uneven response in tackling crime which has scaled up internationally. Brady demonstrates how criminal networks have evolved beyond the scope of cooperation at EU level and exploits weaknesses beyond the EU to trade crime over great distances, such as drug trafficking entering the EU from Afghanistan via the Balkans and the innovative use of drug trafficking networks as a gateway for human trafficking.[30]
How the EAW differs procedurally from traditional extradition is in the concept of mutual recognition of judicial decisions[31] which provides requests are recognised and approved by the requested state with minimal enquiry without executive interference.[32] This constitutes a 'paradigm shift' in cooperation.[33] The core principle of extradition of dual criminality has been removed for 32 listed offences[34] and the principle of non-surrender of nationals is no longer a bar to extradition.[35] Evaluation of the implementation and operation of the EAW shows however that despite its success there are problems with consistency. Surrender of nationals has presented the biggest constitutional challenge followed by problems identified with the list of 32 offences being not generic to all States.[36] Deen-Racsmány identifies nationality has been reasserted in the implementing statutes of some States (e.g. Germany) interpreting the Article 5 provisions of the Framework Decision to mean surrender subject to a condition of return to serve sentence requires guarantee from the requesting State.[37] For Germany this created an obligation because the amended Article 16 (2) of the German constitution made it conditional to the surrender of nationals that constitutional principles are observed. [38] On 18 July 2005 the German Federal Constitutional Court annulled the implementing legislation for the EAW on the grounds it was incompatible with inter alia Article 16 (2).[39] This breach of obligation to interpret national law according to EU law illustrates tension between this obligation and State sovereignty.[40] The back door reintroduction of dual criminality is demonstrated for example with Spain where problems arose in the Spanish Criminal Code with interpreting the 32 offences listed, examples being given that 'corruption' has different legal meaning, 'laundering the proceeds of crime' is not atypical, and 'computer-related crime' had yet to enter the Spanish Criminal Code.[41] These problems with terminology[42] mean paradoxically that the application of extradition procedures to transnational crime is weakened. In France one of the grounds for refusal of a Spanish request to extradite Basque terrorists was that the Spanish criminal offence of membership of a terrorist organisation was on the facts not an offence under French Law despite this is a listed offence in Article 2 of the Framework Decision.[43] Therefore dual criminality and nationality is still operative and to this extent the EAW is far from homogenous.
Where a States' constitution bans extradition of nationals, international obligations do not permit derogation from this and this cannot be resolved by circumvention of the constitution via indirect effect not at least without violating the rule of law.[44] Extradition requests continue to be challenged on constitutional grounds and as a result extradition procedure is undermined.[45] For example following the German annulment Spain renounced recognition of German EAW requests[46] invoking the reciprocity clause in the Spanish constitution.[47] An examination of the practical operation of the EAW shows that there still remains inconsistencies in execution amongst member States. A 2008 EU survey shows Germany's refusal of a great number of requests (190) citing reasons such as formal requirements not met (24), prosecution time-barred (42), no reciprocity (1) and no guarantee a German national would be returned (1).[48] Therefore the available evidence suggests that the application of the EAW is not without tensions.
However there is regional cooperation beyond the EAW. For example, Deen-Racsmány cites the Nordic Arrest Warrant treaty concluded between Denmark, Finland, Iceland, Norway and Sweden 15 December 2005 as a radical replacement of existing Nordic extradition laws with greater limitation on non-extradition of nationals.[49] This willingness to seek new solutions demonstrates the continued importance of effective extradition. Another development is the EU-US Extradition Agreement signed 25 June 2003[50] and approved by the EU 23 October 2009.[51] The recent Council of Europe press release explained that this improves cooperation between EU member States and the US.[52] Its application to transnational crime can be determined from the 'EU-US Joint Statement on "Enhancing transatlantic cooperation in the area of Justice, Freedom and Security" which stresses the common goal of inter alia combating the threat of transnational crime with both extradition and mutual legal assistance providing 'new tools for cooperation' together with updated bilateral treaties between EU States and the US. [53] States retain autonomy to conclude bilateral extradition treaties on their own terms as demonstrated by
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the UK- US Extradition Treaty.[54] Irrefutably the UK-US Extradition Treaty[55] is asymmetrical despite the government's rejection of such an assertion.[56] Article 8(2) of the treaty lowers the evidential standard for the US from a prima facie standard to an information standard, whereas the UK by Article 8(3)( c) is still bound to show a prima facie case. The difference in standards shows reciprocity is no longer necessary for international cooperation.[57] In addition, compared to the list approach to dual criminality under the Extradition Act 2003 all offences whose conduct is punishable by one year or more imprisonment in both States become extraditable by Article 1, and the treaty by Article 21 has retrospective effect applying to offences committed before the treaty entered into force. The significant result of this asymmetrical tool with differing evidentiary standards and retrospective effect combined with a non-list approach to dual criminality is that the scope and application of the treaty to extradition from the UK to US is enlarged. In the context of transnational white collar crime this enables US prosecutors to request extradition ahead of evidence gathering.[58] This radical change enables transfer of persons on a reasonable suspicion of having committed transnational crime with a threshold test applied to the evidence in the UK. Therefore compared to the EU/US Extradition Agreement the UK/US treaty goes further.[59]
As the law now stands there is a presumption in favour of extradition as shown in the McKinnon case[60] where the Article 3 ECHR argument was rejected on the grounds that given the assurances 'of a friendly state' the medical evidence did not 'approach' the high threshold.[61] Nor are technicalities a bar to extradition requests.[62] This permissive approach has due process implications where the requesting State holds the totality of the evidence. For example in McKinnon the Court endorsed the DPP's decision not to prosecute him in the UK based on an inability on the evidence to issue charges reflecting the totality of his alleged offending, deciding the US was the appropriate forum.[63] This confronts due process because the requesting State is trusted as an extradition partner to have a meritorious case.
Whether the new extradition laws are used for the intended purpose as an effective tool against transnational crime is questioned. The Court's view in the case of Lotfi Raissi[64] was that extradition proceedings were used as a 'device' for the ulterior purpose of investigating 9/11.[65] This subversion of extradition proceedings as a 'device' leads to the view that extradition will be granted in future cases under the UK-US treaty even when limited evidence is available. The District Judge in the Riassi case giving evidence before the Home Affairs Committee in effect confirmed this.[66] Further it was acknowledged in Bermingham & Others that the US does have a practice of using "superseding indictments" for trial of extradited defendants, and whilst the Court found it does not necessarily follow such indictments alleging crimes for which the defendant was not extradited breaches the speciality rule.[67] Such practice means implies that the prosecution of transnational crime is based not on procedural safeguards but trust.
Determining an extraditable offence has changed from finding constituent elements of an offence (the 'offence' test) to a more flexible approach (the 'conduct' test). For example in Norris[68] the Court in considering the definition of 'extradition offence' in section 137 of the Extradition Act 2003 rejected Norris' submission that the test was the conduct proving the essential elements of the foreign offence on the grounds this is inconsistent with the UK Parliament purpose of making extradition easier, and decided the correct approach was to find the conduct in the extradition documents taking into account allegations relevant to describing a corresponding UK offence.[69] In holding the ancillary charges of obstructing justice remained, despite the main price fixing charge failing because at the time this was an offence unknown to UK law. Section 137 has been criticised as 'badly drafted' and ill equipped to deal with modern day transnational crimes [70] in respect of distinguishing between territorial[71] and extra-territorial[72] offences. Whilst that criticism remains valid in terms of jurisdiction, the overall effect of the modernisation of procedural law combined with lower evidentiary standards and a broad conduct approach has been to make extradition for transnational crime a tool of far more extensive application.
It has been suggested that there is currently a need to update treaties by moving away from the old 'list' type of specific extraditable offences by using the UN Model Treaty and Model Law on Extradition.[73] The UN 2004 Model Law on Extradition[74] based on the UN Model Treaty[75] develops a working model for State legislation and aims to reflect new trends in extradition law and international treaties.[76] For example section 3 of the Model Law sets out the substantive conditions which whilst preserving the dual criminality principle reflects the modern trend of taking out a requirement for specific identifiable offences and replacing this with general recognition by broad analogous offences[77], and relaxation of the political offence exception particularly in cases of terrorism.[78]
The international approach therefore is to reform extradition procedure whilst respecting domestic laws.[79] The EAW is cited as an example in encouraging States to look towards 'the potential benefits
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of simplified surrender'.[80] This shows the trend towards a 'surrender' model embodying elements of traditional extradition but enhancing procedure via the relaxation of traditional constraints.
Southern African States development of extradition laws in the fight against transnational crime contrasts the EAW model. The Southern African Development Community (SADC) consisting of 13 member States is a region which has experienced a rapid growth of transnational crime with increasing sophistication of crime syndicate networks.[81] The SADC States concluded the SADC Protocol on Extradition 3[rd] October 2002[82] in response to this escalation with the objective to make cooperation more effective in this sub- region.[83] A unique feature of the SADC Protocol is Article 19 which sets out the relationship with other treaties. This upholds the primacy of the Protocol in the event of conflicting provisions in any treaty or bilateral extradition agreement between two States Parties by making these 'complementary' to the Protocol. Moreover, there is a reading in provision where any inconsistency between treaty or agreement is to 'be construed and applied in harmony' with the Protocol.[84] Article 19 is understood to function to resolve any conflict of extradition laws among SADC member States.[85] The Protocol also supersedes the London Scheme for extradition within the commonwealth (not itself a treaty)[86] because Article 3 of the Protocol redefines the qualifying penalty for an extradition offence from two years to one and widens the definition of extraditable offences[87] by removing the need for criminal conduct to fall within 'the same category of offence'[88] or for conduct to be within the jurisdiction of the requesting State.[89] The Protocol demonstrates that changes to extradition practice are achievable without changing domestic laws.
The SADC region therefore illustrates how States have forged extradition agreement at an international level and in tandem at national level have sought localised solutions through multilateral agreement as a response to specific problems of transnational crime with extradition not only a tool but a means of State cooperation regionally and internationally.[90] In contrast West Africa has been less effective in responding to transnational crime simply relying upon the updating of legislation in accordance with UN instruments.[91] This shows extradition needs a regional arrangement in addition to fulfilling international obligation.
The constitutional issue of whether an extradition treaty creates a binding international law obligation was addressed by the Constitutional Court of South Africa in the case of Quagliani.[92] Quagliani was accused of drugs trafficking and the United States
sought his extradition from South Africa under the US/South African extradition treaty. A ground for challenge was this treaty had not been enacted into domestic laws raising the issue of its enforceability. In holding the US/South African extradition treaty[93] was enforceable without further domestic enactment the court upheld the principle of reciprocity deciding that the 1962 Extradition Act was the means by which the treaty could be enforced.[94] The extent of extradition procedural law development in the context of transnational crime is highlighted in Quagliani. Speaking of transnational crime the Court said this:
[40] Yet, important though individual rights are, extradition proceedings cannot be looked at purely from the point of view of protecting individuals facing extradition. Transnational mobility of people, goods and services...have contributed to increased mobility of criminals...
[41] ...The need for effective extradition procedures becomes particularly acute as the mobility of those accused or convicted of national crimes increases...[95]
This shows domestic and international law is tightly bound in extradition law[96] and where transnational crime is concerned States regard criminal justice objectives take precedence over individual rights and freedom. Whilst in Geuking it was acknowledged that extradition invades fundamental rights[97] the rights are limited to procedural fairness in the proceedings.[98] In the context of a relaxation of procedural rules this development since 2001 of constitutional provisions not being narrowly construed is of questionable legality.[99]
A region challenged by transnational crime for which extradition law is still developing is Asia and the Pacific.[100] The bilateral treaty approach predominates across the region and in 2005 only 14 of 48 countries were party to UNTOC.[101] The 2005 review of Australia's extradition system considered the framework was outdated and needed overhaul to meet the demands of a global response to transnational crime, identifying need for a more streamlined system.[102] An identified strength was the 'no evidence' standard allowing relations with wide range of civil law countries, whilst the weaknesses were considered to include dual criminality, speciality in terms of waiver on case by case basis taking time, and restriction of the aut dedere aut judicare[103] principle to Australian citizens.[104] As a party to over 30 bilateral treaties and 12 multilateral treaties the renegotiation of treaties was seen the main priority.[105] This has been controversial. The Australian government rejected the Australian Law Reform Commission proposal for raising the evidentiary standard for extradition
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requests maintaining the 'no evidence' standard was a matter of policy in enabling Australia as a common law system to maintain extradition relations with civil law based countries and to abandon this standard was seen to put in jeopardy Australia's ability to effectively participate internationally in combating transnational crime.[106] The 'no evidence' standard was upheld in 2006 as constitutionally valid in the case of Vasiljkovic.[107] It has been commented that Australia therefore incongruously operates two evidential standards where old extradition treaties require a prima facie case and for States with whom Australia has no extradition treaty (e.g. Croatia in this case) a lower standard is permitted.[108] According to Morrell this abandons human rights law.[109] This piecemeal reform of extradition procedure demonstrates the conflict between extradition procedures and constitutional law with human rights subordinate to political interest in extraditing criminals.
Australia's revised approach to extradition is shown in the recent Australia-Malaysia Extradition treaty.[110] This is based on the UN Model treaty but differs in an important respect. The 'no evidence' standard is reinforced with the provision that neither party shall make it a condition of the other that a prima facie case is proved.[111] This goes further than the Model treaty. In particular the dual criminality principle is changed in determining an extraditable offence. Whereas Article 2 of the UN treaty provides 'it shall not matter' for both whether the laws of the parties describe the offence in the same terms and whether the 'constituent elements of the offence differ, it being understood that the totality of the acts or omissions' shall be taken into account, the Australia-Malaysia Extradition Treaty turns totality into a mandatory ground in every case irrespective of whether the constituent elements differ: the totality of the acts or omissions alleged against the person whose extradition is sought shall be taken into account and it shall not matter whether, under the laws of the Parties, the constituent elements of the offence differ.[112] This is a clear example of what Griffith and Harris had identified as a trend in Australian jurisprudence towards the 'dilution' of the dual criminality principle with the limited information requirement and equivalence based approach to determining extraditable offences creating wider and uncertain application.[113] Therefore such implications need to be considered further.
Schloenhardt in discussing China's approach to transnational crime for example, as expressed in its criminal law code,[114] noted that compared to the West, China's laws were a blend of general liability and specific offences for leaders and participants in organised crime that reflects the Chinese understanding of organised crime is different with more 'broad' interpretation than the West.[115] If cultural differences and different legal systems collide in an infrastructure for extradition which permits non-inquiry into the evidence for an extradition request and further permits a totality approach to determining what is extraditable, then extradition procedure now has broad application to transnational crime. For example the Australian Attorney-General's Press Release following the signing of the Australia China Extradition Treaty 6[th] September 2007 emphasised that this 'places both parties in a stronger position to combat transnational crime as it is through extradition treaties that the 'international crime cooperation relationship' with China is 'strengthened'.[116]
Whilst the Australia-China Extradition Treaty is still subject to ratification by Australia,[117] the same modern approach prevails of the dual criminality expressed generally and in totality[118] with a 'no evidence' provision.[119] This is a significant development in line with the objective of being adaptable to transnational crime (and by Article2 (3) (c) extends to fiscal offences). This treaty based approach to extradition has been considered to be inflexible in terms of creating obligation to extradite.[120]
In a post 2001 extradition world of international cooperation over transnational crime there is still a divergent approach. Since China's extradition objectives are driven by targeting corruption[121] the treaty system is capable of different uses within the spirit of cooperation. The American and Canadian approach proceeds on a 'case-by-case' basis[122] because of distrust of China over human rights and this is advocated as a flexible alternative to treaty obligations.[123] This demonstrates that there is not a single extradition solution to transnational crime. The way extradition is materialised depends to a large extent on the particular crime problem (e.g. corruption), domestic laws, and international trust.
Extradition procedures has in response to transnational crime changed considerably (modifying dual criminality, nationality and speciality), as evidenced by the EAW, UK/US Treaty, the SADC Protocol, the Australia/Malaysian treaty and latterly Western relations with China. There is however no universal approach with extradition laws an uneasy alliance of national and international law. Therefore transnational crime is a step ahead. So revised extradition procedures are a poor fit exacerbated by the complicated infrastructure which has arisen. A recognisable
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advance is greater cooperation to create a common judicial space amongst networked States. This is an extra dimension where multilateral and bilateral arrangements co-exist under the umbrella of a UN Convention Model. The price has been to sacrifice individual rights and due process as case law shows. As a tool extradition is powerful to networked States. As a legal procedure extradition is in danger of becoming a rubber stamp endorsement of requests, capable of misuse.
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United Nations Office on Drugs and Crime, 'Model Law on Extradition' (Oct 2004 Final Version) http://www.unodc.org/pdf/model_law_extradition.pdf
Wagner. W. 'Building An Internal Security Community: The Democratic Peace And The Politics Of Extradition In Western Europe' (2003) 40 Journal of Peace Research 695
Warbrick. C. 'Recent Developments In UK Extradition Law' (2007) 56 (1) International & Comparative Law Quarterly 199
Wouters. J. and Naert. F. 'Of Arrest Warrants, Terrorist Offences and Extradition Deals: An Appraisal Of The EU's Main Criminal Law Measures Against Terrorism After "11 September"' (2004) 41 Common Market Law Review 909
Zeman. P. 'The European Arrest Warrant - Practical Problems and Constitutional Challenges' in E Guild (ed), Constitutional Challenges to the European Arrest Warrant (Wolf Legal Publishers 2006) ■
NOTES
[1] Martin, J. M. and Romano, A. T. (1992). Multinational Crime-Terrorism, Espionage, Drug &Arms Trafficking. Sage Publications, p. 15.
[2] Bossard. A. (1990). Transnational Crime and Criminal Law. The University of Illinois at Chicago, p.3.
[3] Ibid, p. 5.
[4] Ibid.
[5] Ibid.
[6] McClean. D. (2007). Transnational Organized Crime: A Commentary on the UN Convention. Oxford University Press, p.p. 47-50
[7] Gilbert. G. (1991). Aspects of Extradition Law. Martinus Nijhoff Publishers, p 9.
[8] Ibid, p, 7.
[9] Ibid, p. 20.
[10] Ibid, p. 21.
[11] Ibid, p. 40.
[12] Ibid, p.p., 48-52.
[13] Ibid.
[14] Ibid 53.
[15] Ibid, p. 54.
[16] Ryngaert. C. (2009), Territorial Jurisdiction Over Cross-Frontier Offences: Revisiting A Classic Problem Of International Criminal Law. 9 International Criminal Law Review 187, p.p. 208-209.
[17] Prost. K. (2008). No Hiding Place: How Justice Need Not Be Blinded By Borders; in S Brown (ed), Combating International Crime. Routledge p. 124.
[18] Fisher. K. R. (2003). Alternatives To Extradition For Money Laundering. 25 Loyola of Los Angeles International and Comparative Law Review 409 at 410.
[19] Leong. A. V. M. (2007). The Disruption of International Organised Crime. Ashgate, p. 77.
[20] Betti. S. (2009). A Member Of Al-Qaida Shows Up At Your Border; Expulsion, Criminal Prosecution Or Something Else? 17 European Journal of Crime Law and Criminal Justice 23, p.p. 35-40.
[21] Tampere European Council (15-16 October 1999) Presidency Conclusions para's 33-35 http//www.europarl.eu.int/summits/tam_en.htm.
[22] Brady. H. (2007). The EU and the fight against organised crime'. Centre For European Reform.
[23] Wouters. J. and Naert. F. (2004). Of Arrest Warrants, Terrorist Offences And Extradition Deals: An Appraisal Of The EU's Main Criminal Law Measures Against Terrorism After 11 September. 41 Common Market Law Review 909, p. 922.
[24] Supra note 23, p.24.
[25] Ibid, p.p. 24-27.
[26] Ibid, p. 29.
[27] Ibid, p. 31.
[28] Ibid, p. 33.
[29] Ibid, p. 34.
[30] Ibid, p. p. 5-9.
[31] Wagner. W. (2003). Building An Internal Security Community: The Democratic Peace And The Politics Of Extradition In Western Europe. 40 Journal of Peace Research 695, p.p. 706-707.
[32] Plachta. M. (2003). European Arrest Warrant: Revolution In Extradition?. 11/2 European Journal of Crime, Criminal Law and Criminal Justice 178, p. 187.
[33] Supra note 24, p. 919.
[34] Supra note 33, p. 185.
[35] Ibid, p. 187.
[36] Zeman. P. (2006). The European Arrest Warrant - Practical Problems and Constitutional Challenge in Guild. E. (ed), Constitutional Challenges to the European Arrest Warrant. Wolf Legal Publishers, p. 199.
[37] Deen-Racsmány. Z. and Blekxtoon. R. (2005). The Decline Of The Nationality Exception In European Extradition? 13/3 European Journal of Crime, Criminal Law and Criminal Justice 317, p. 34 and citing Article 80 (1) of the German Law of 21 July 2004 implementing the Framework Decision.
[38] Tschentscher. A. (2002). The Basic Law (Grundgesetz): The Constitution of the Federal Republic of Germany Jurisprudentia Verlag, p. 24.
[39] Geyer. F. (2006). The European Arrest Warrant in Germany' in E Guild (ed), Constitutional Challenges to the European Arrest Warrant. Wolf Legal Publishers, p. 111; Mölders. S. (2005). European Arrest Warrant Act Is Void - The Decision Of The German Federal Constitutional Court Of 18 July 2005. 7/1 German Law Journal 45, p. 54.
[40] Parga. A. H. (2006). Bundesverfassungsgericht (German Constitutional Court) Decision Of 18 July 2005 (2 BvR 223604) On The German European Arrest Warrant Law . 43 Common Market Law Review 583, p. p 586-595.
[41] Jimeno-Bulnes. M. (2006). Spain and the European Arrest Warrant - The View of a 'Key User" in E Guild (ed), Constitutional Challenges to the European Arrest Warrant. Wolf Legal Publishers, p.p. 176-177.
[42] Supra note 33, p. 190.
[43] Errera,R. (2006). The Relationship of Extradition Law in International Treaties with the European Arrest Warrant and its Application in France' in E Guild (ed), Constitutional Chal-
- 178/179 -
lenges to the European Arrest Warrant. Wolf Legal Publishers, 158 citing Cass.crim July 8 2004 no 04-83-662, 663 and 664.
[44] Deen-Racsmány. Z. (2006). The European Arrest Warrant And The Surrender Of Nationals Revisited: The Lessons Of Constiutional Challenges. 14/3 European Journal of Crime, Criminal Law and Criminal Justice 271, p. 293.
[45] Ibid, p.p. 297-298.
[46] Supra note 42, p.p. 182-183.
[47] Combeaud. S. (2006). Implementation of the European Arrest Warrant and the Constitutional Impact in the Member States' in E Guild (ed), Constitutional Challenges to the European Arrest Warrant. Wolf Legal Publishers, p. 188 citing Ruling of Audiencia Nacional (the Spanish High Court) 20.09.2005; Mann. G. (2007). The European Arrest Warrant: A Short-Lived Mechanism For Extradition? 34 Syracuse Journal of International Law and Commerce 715, p. 730.
[48] Council of the European Union Brussels 22 July 09 "Replies to questionnaire on quantitative information on the practical operation of the European Arrest Warrant - Year 2008" 9734/1/09 REV 1 http://www.statewatch.org/news/2009/jul/eu-eaw-figures-9734-09.pdf accessed 2 November 2010.
[49] Supra note 45, p.p. 303-4.
[50] OJ 2003 L 181/27.
[51] OJ 2009 L 291/40 Council Decision 2009/820/CFSP Agreement to enter into force 1 February 2010.
[52] Council Of The European Union Luxembourg 23 October 2009 14826/09 (Press 303) http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/jha/110727.pdf accessed 2 November 2010.
[53] http://www.se2009.eu/polopoly-fs/L21271imenu/standard/file/EU-US%20Joint%20Statement%2028%20October%202009.pdf accessed 5 September 2010.
[54] Warbrick. C. (2007). Recent Developments In UK Extradition Law. 56 (1) International & Comparative Law Quarterly 199, p. 207.
[55] Treaty Series No 13 (2007) Cm 7146 in force 26 April 2007 http://www.fco.gov.uk/resources/en/pdf/pdf18/fco_cm7146_usaextraditiontreaty >accessed 3 September 2010.
[56] No 10 Downing Street Response to petition to Prime Minister 24 March 2009 http://www.number10.gov.uk/Page18675 accessed 6 September 2010.
[57] Jones. A. QC and Doobay. A. (2006). Extradition arrangements with the USA' in M Leaf (ed), Cross-Border Crime Defence rights in a new era of international judicial co-operation. JUSTICE, p. 21.
[58] Lardo. A. E. (2006). The 2003 Extradition Treaty Between The United States And United Kingdom: Towards A Solution To Transnational White Collar Crime Prosecution? 20 Emory International Law Review 867, p.p.882 - 883.
[59] Supra note 58, p. 23.
[60] R (on the application of McKinnon) v Secretary of State for Home Affairs; R (on the application of McKinnon) v DPP [2009] EWHC 2021.
[61] Ibid paragraphs 88 - 89.
[62] Dabas v Spain [2007] UKHL 6.
[63] R (on the application of McKinnon) v Secretary of State for Home Affairs; R (on the application of McKinnon) v DPP [2009] EWHC 2021 at paragraphs 46 - 49 and 57.
[64] R (on the application of Lotfi Raissi) v Secretary of State for the Home Department [2008] EWCA Civ 72.
[65] Ibid paragraph 144.
[66] Senior District Judge Workman in answer to question 33 Select Committee on Home Affairs Minutes on Evidence 22 November 2005
http://www.publications.parliament.uk/pa/cm/200506/cmselect/cmhaft/710/5112203.htm accessed 4 December 2009
[67] R (on the application of Bermingham & Others) v The Director of the Serious Fraud Office [2006] EWHC 200 (Admin) paragraphs 139-144.
[68] Norris v United States [2008] UKHL 16.
[69] Ibid paragraphs 63 to 91.
[70] Supra note 58, p. 26.
[71] Extradition Act 2003 s 137 (2).
[72] Extradition Act 2003 s 137 (4).
[73] Ibid, p. 9.
[74] United Nations Office on Drugs and Crime, 'Model Law on Extradition' (Oct 2004 Final Version) http://www. unodc.org/pdf/model_law_extradition.pdf accessed 27 September 2010.
[75] Adopted by UN General Assembly in 1990 by resolution 45/116 and amended 1997 by Resolution 52/88 http://www.unodc.org/pdf/model_treaty_extradition.pdf accessed 27 September 2010.
[76] United Nations Office on Drugs and Crime, 'Model Law on Extradition' (Oct 2004 Final Version) 6-7 http://www.unodc.org/pdf/model_law_extradition.pdf accessed 27 September 2010.
[77] Ibid, section 3.3.
[78] Ibid, section 4.4(d).
[79] United Nations Office on Drugs and Crime, 'Report of the Informal Expert Working Group on Effective Extradition Casework Practice' (2004 Vienna) 11-18
http://www.unodc.org/tldb//pdf/Practical_Guide_Extraditions_2004.pdf accessed 27 September 2010.
[80] Ibid, p. 14.
[81] Mukelabai. M. (2005). International Law Enforcement Co-operation, Including Extradition Measures: An Overview of Initiatives in Southern Africa in K Aromaa and T Viljanen (eds), Enhancing International Law Enforcement Co-operation, including Extradition Measures Proceedings of the workshop held at the Eleventh United Nations Congress on Crime Prevention and Criminal Justice. HEUNI Publications Series No 46 Helsinki,
p. 81.
[82] http://www.issafrica.org/AF/RegOrg/unity_to_union/pdfs/sadc/protextra.pdf accessed 26 September 2010.
[83] Supra note 82, p. 88.
[84] Supra note 83.
[85] Supra note 82.
[86] http://www.assetrecovery.org/kc/node/be7fd4ad4e88-11dd-b372-13a250e5a451.2 accessed 26 November 2009; Jones. A. (2001). Jones on Extradition and Mutual Assistance. 2[nd] edn Sweet and Maxwell, p. 523.
[87] Supra note 82, p. 89.
[88] Article 3 (1)(a) http://www.issafrica.org/AF/RegOrg/unity_to_union/pdfs/sadc/protextra.pdf accessed 26 October 2010.
[89] Article 3 (4) http://www.issafrica.org/AF/RegOrg/unity_to_union/pdfs/sadc/protextra.pdf accessed 26 November 2009.
[90] Supra note 82, p.p. 87 and 93.
[91] Mazzitelli. A. L. (2007). Transnational organized crime in West Africa: the additional challenge. 83:6 International Affairs 1071,p. 1088.
[92] President of the Republic of South Africa and Quagliani and others [2009] Case CCT 24/08 ZACC 1 http://www.saflii.org/cgi-bin/disp.pl?file=za/cases/ZACC/2009/1. html&query=%20extradition%20&%20transnational%20crime accessed 24 November 2009.
[93] Ratified 25 June 2001.
[94] President of the Republic of South Africa and Quagliani and others [2009] Case CCT 24/08 ZACC 1 paragraph 36, 40-41 and 47-48.
[95] President of the Republic of South Africa and Quagliani and others [2009] Case CCT 24/08 ZACC 1 paragraphs 40 - 41.
[96] Ibid, paragraph 36.
[97] Geuking v President of the Republic of South Africa and others CCT 35/02 [2002] ZACC 29; 2003 (3) SA34(CC)
http://www.saflii.org/za/cases/ZACC/2002/29.pdf accessed 29 October 2010.
- 179/180 -
[98] Ibid, paragraph 47.
[99] Katz. A. (2003). The Incorporation Of Extradition Agreements. 16 (3) South African Journal of Criminal Justice, p.p. 311-322.
[100] Sato. T. (2005). Extradition and Mutual Legal Assistance in the Asian and Pacific Region' in K Aromaa and T Viljanen (eds), Enhancing International Law Enforcement Co-operation, including Extradition Measures Proceedings of the workshop held at the Eleventh United Nations Congress on Crime Prevention and Criminal Justice. HEUNI Publications Series No 46 Helsinki, p. 61.
[101] Ibid, p. 73.
[102] Commonwealth of Australia, 'A new extradition system A review of Australia's extradition law and practice' (2005) 6 http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP(03995SEABC73F94816CZAF4AA265824B) ~ extraditionpaper.pdf/sfile/extraditionpaper.pdf accessed 4 october 2010.
[103] Extradite or punish principle.
[104] Supra note 103.
[105] Ibid, p. 49.
[106] Government Response To The Joint Standing Committee On Treaties Inquiry Into Australia's Extradition Law And Policy 2004
http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(03955EABC73F94816C2AF4AA2645824B) ~ Government+Response+to+JSCOT+Report+40[1].pdf accessed 29 November 2009.
[107] Vasiljkovic v Commonwealth [2006] HCA 40; 80 ALJR 1399; 228 ALR 447 (3 August 2006) http://www.haguejusticeportal.net/DOCS/NLP/Australia/Vasljkovic_HighCourtAustralia_15-6-2006.pdf accessed 29 November 2009.
[108] Morrell. S. (2007). Case And Comment Vasiljkovic v Commonwealth Of Australia. 29 Sydney Law Review 321, p. 323.
[109] Ibid, p. 336.
[110] Signed 15 November 2005 http://www.oecd.org/corruption/asiapacific/mia accessed 29 November 2009; in force 28 December 2006 [2006] ATS 20
http://www.info.dfat.gov.au/Info/Treaties/treaties.nsf/AliDocIDs/FA46B0459CCD69E6CA2570B300254681 accessed 30 November 2009.
[111] Article 4 (6).
[112] Australia-Malaysia Extradition Treaty Article 2 (4) (b).
[113] Griffith. G. QC and Harris. C. (2005). Recent Developments In The Law Of Extradition. 6 Melbourne Journal of International Law 33, p.p. 38 - 41.
[114] Schloenhardt, A. (2008). Taming The Triads: Organised Crime Offences In PR China, Hong Kong, and Macau. 38 Hong Kong Law Journal 645, p.p. 649 - 651 citing Article 26 Criminal Law 1997 (PRC) and Article 294 Criminal Law (China).
[115] Ibid, p. 657.
[116] Attorney-General The Hon Philip Ruddock MP, 'Australia-China International Crime Cooperation Strengthened' News Release 193/2007 6 September 2007
http://www.v.au/parlinfo/download/media/pressrel/TA706/upload_binary/tu706.2.pdf;fileType=applicati on%2Fpdf#search=%22China%20extradition%20treaty%22 accessed 30 November 2009.
[117] Ratified by China 24 April 2008 see press release Bejing Review 25 April 2008 http://www.bjreview.com.cn/headline/txt/2008-04/25/content_112818.htm accessed 30 November 2009.
[118] Treaty On Extradition Between Australia And The People's Republic Of China [2007] ATNIF 26 Article 2 (3) (b) http://www.austlii.edu.au/cgi-bin/sinodisp/au/other/dfat/treaties/notinforce/2007/26.htm? accessed 30 November 2009.
[119] Ibid, article 7.
[120] Bloom. M. (2008). A Comparative Analysis Of The United States's Response To Extradition Requests From China. 33 The Yale Journal Of International Law 177, p. 190.
[121] Ibid, p. 178.
[122] Ibid 181.
[123] Ibid, p.p. 199-200 and p. 208.
Lábjegyzetek:
[1] The Author is Senior Lecturer in Law London South Bank University.
Visszaugrás
