Abstract
The book is a long theoretical study of the process of extradition, its essential objectives, and the grounds of refusal that are typically invoked to bar it. The author attempts to “re-write the grammar” of extradition and to reshape a number of concepts that are central to legal debates surrounding the evaluation of extradition procedures and their development in the future. Although the book makes a number of references to specific jurisdictions (such as Portugal and the UK) and instruments of simplified surrender (the European Arrest Warrant (EAW) scheme, the Mercosur warrant in Latin America and the Nordic Arrest Warrant), the book primarily seeks to make the reader think about the values and principles underpinning extradition in general. That in turn aims to allow the development of a new approach to the most frequently-invoked grounds of refusal irrespective of specific jurisdictions.
The book takes as a premise that progress of international cooperation in criminal matters should be achieved by improving and perfecting the practice of extradition, rather than shifting to other forms of advanced judicial cooperation. It follows that the stated intention of the author is to assess whether certain grounds of refusal in extradition proceeding should be simplified and possibly narrowed. Given this aim, the book focusses on situations where extradition bars would prevent the assessment of criminal liability (thereby generating impunity), and excludes, in particular, mere “conflicts of jurisdictions” in which two or more States “fight” to prosecute the same individual, as well as internal rendition (i.e. within a federation).
The book consists of four parts.
In Part 1, the author states the purpose of his work and outlines the concept of extradition. Early on, the author comes to the problematic conclusion that the main force driving extradition relations among States is an interest in upholding their own criminal systems and that all States have, in principle, an interest in extraditing. The author seems to look at each legal system as a whole and thus gives little, if any, attention to the fact that within each State there are multiple driving forces (courts, constitutional courts, Parliaments, governments) acting at the same time for or against extradition. The most innovative aspect of Part 1 is a new categorisation of grounds of refusal that separates grounds for refusal imposed upon States (mandatory) and grounds for refusal adopted by States without any constraints (voluntary).
Based on these assumptions, Parts 2 and 3 explore grounds of refusal that are “imposed upon States” (Part 2) and those that are “voluntarily enacted by States” (Part 3). In the author’s view, the former group express a broader consensus around the paramount value of certain interests, because of which they apply even if a specific State does not wish to apply them in a concrete case. The latter group, by contrast, refers to grounds for refusal which specific States consciously choose to include in order to protect specific interests. The author considers this distinction crucial for the overall research design of the book, although in some respect the categorisation appears artificial and suitable for academic debate rather than practical implementation.
As one would expect, human rights considerations are extensively analysed in Part 2. Human rights arguments are often invoked as a bar against extradition when the person sought claims that they would be subject to the death penalty, torture, ill-treatment, life imprisonment and/or an unfair trial in the requesting State. In this part of the book, the author reviews the case-law of the European Court of Human Rights. Perhaps the strongest and most detailed analysis of the book follows, namely that concerning the newly-born “EU citizenship bar” against “outward extradition”. This of course concerns the case-law of the European Court of Justice, starting with the Petruhhin case that essentially created a new area of EU law that now impacts (albeit still in a relatively limited manner) on the extradition of EU nationals from EU Member States to third States.
Part 3 attempts to determine which voluntary grounds of refusal remain necessary in the context of globalisation. Here the author acknowledges that it would be impossible to make a general assessment based on all treaties in force and thus narrows his analysis to the legislation of Portugal and the UK, with sporadic incursions into the EAW scheme. Traditional extradition topics such as the rule of speciality, political and military offences and dual criminality are covered in this part. Unfortunately, at this point the book somewhat abandons its “universal focus” and becomes mired in the technicalities and details of the relevant jurisdictions.
Part 4 sets out with the ambitious goal of reviewing grounds of refusal and offering proposals for an overall reform of extradition law. This reform would remove or narrow the grounds of refusal that the author views, based on certain assumptions, as “unnecessary”. The author accepts that the proposals submitted here are not the only conceivable concretisation of the theoretical framework developed earlier. Yet he embarks upon a long and – in my view – overly complex review of existing grounds of refusal, one founded in a further distinction between supposedly plausible and implausible candidates for reform. While the proposal aligns with the book’s theoretical assumptions, I am doubtful that it will lead to immediate reform of extradition law. The author wonders, for example, whether the nationality exception should be regarded as a “privilege” rather than a right. But I doubt that the States that protect own nationals have any intention to move away from that guarantee any time soon. The author also defines time-bar exceptions as clearly inadequate grounds for refusal. Yet he goes on to acknowledge that in several legal systems, time-bars do constitute an expression of core legal principles. Here more than elsewhere, the author is confronted with the reality of extradition: a process that remains essentially State-centric and in which those key players remain protective of their prerogatives and traditions.
Overall, however, the author has a point. As he argues, the key factual conditions underpinning extradition law have been transformed (distances are easier to travel, moving abroad is less intimidating, etc.) and yet the grounds for refusal – which are, ultimately, the central elements of extradition law – have not been subjected to a corresponding conceptual reform. The book’s main contribution is its attempt to bridge this substantial and growing lag between the reality and the law. As such, it is a valuable addition to academic literature and constitutes recommended reading for all academics and practitioners with an interest in extradition proceedings.