Extradition and the European Arrest Warrant

Extradition is a powerful and essential tool in todays law enforcement process. Especially the growing unification trend in Europe, the expansion of the European Union as well as the abolition of checks at its common borders not only allow the free movement of goods, capital and workers but also a free movement of crime. Todays worldwide modernization along with the growing mobility of the population simplifies trans-border crimes. More and more criminal acts contain international aspects. Therefore todays discussion concerning extradition law mostly aims to further international cooperation in criminal justice matters. It is dominated by the urge to simplify the procedure, decrease the requirements and eliminate bars to extradition. Whilst appreciating the importance and necessity of this instrument, one shouldnt forget its intrusive charakter: each successful extradition results in the arrest and rendition of a person to the requested state where she awaits trial and/or punishment. Various human rights issues may arise from such an extradition procedure, such as fair trial, inhuman and degrading punishment, death penalty etc. Thus the need to simplify and facilitate extradition should be accompanied by a desire to safeguard individual rights and due process. A fair balance between the two conflicting interests has to be found. This papers goal is to identify as well as asses the basic principles of (traditional) extradition law in civil law countries with an emphasis on Austria and Germany and to compare them to immanent in the common law system (especially in the United States). Subsequently the paper deals with the European Unions new extradition/surrender law formulated in the Framework Decision on the European arrest warrant and the surrender procedures between the Member States. It determines its basic principles and evaluates the difference to the traditional law. Special emphasis is put on the EU-JZG (Gesetz über die Justizielle Zusammenarbeit in Strafsachen mit den Mitgliederstaaten der EU), the act transforming the Framework decision into Austrian law. Some of the basic principles of extradition (in the traditional sense and within the EU) covered in this paper are jurisdiction, non bis in idem, speciality, double criminality as well as the special use of double criminality. Emphasis is put on a critical discussion of the ruel of non inquiry in todays extradition law. This paper advocates a rule of inquiry along with a human rights bar to extradition. Alternatives to extradition, such as deportation, kidnapping and luring are challenged. The paper also gives an overview over the procedural rules governing the extradition and surrender process.