Extradition is a form of international mutual assistance. It can be defined as the procedure by which a state, called the requested state, agrees to hand over a person located on its territory to another state, called the requesting state, that wants them, in order to try them for the commission of a crime or offence, or to enforce a sentence rendered against them. It is therefore a state-to-state relationship. The term is so well known to the public that it is commonly used by everyone, even though it is governed by a complex legal regime that is ultimately little known to practitioners.
Before explaining this legal regime, that can be derived from international conventions or from the French Code of Criminal Procedure, it is important to consider what this procedure is not, so as not to confuse it with other procedures.
Firstly, extradition should not be confused with the concept of transfer, which allows foreigners deprived of their liberty to serve their sentence in their home society. The best-known convention on this subject is the Convention on the Transfer of Sentenced Persons signed in Strasbourg on 21 March 1983.
Secondly, expulsion and refoulement are not methods of surrendering a person from one State to another. Refoulement and expulsion do not have an end in view, unlike extradition. They are administrative procedures, refoulement being, in principle, the act of not letting a foreigner enter France.
Thirdly and more generally, the method used by the foreign authority must not constitute a disguised extradition which is nothing more than a misuse of procedure. This is the case when a state wants to avoid an extradition procedure by disguising it as an expulsion, as the extradition procedure is usually long and uncertain. A state may indeed be tempted to use a procedure with the same objective as extradition, for example when a previous extradition request has been refused.
The practical difficulty here is that in some cases the requested state, in this case France, shows little regard for procedural rules. French police officers seeing an expulsion order will sometimes take the person directly to the foreign authority and once across the border it will be difficult for the person concerned to access a judge and challenge this procedure. When the person has already been handed over to the requesting state, it is too late.
This is what happened to an Italian national, a man called Bozano, who had taken refuge in France because he had been sentenced in Italy to life imprisonment. After an unfavourable opinion from the Limoges Court of Appeal, he was arrested in France according to an expulsion order issued by the Minister of the Interior on the proposal of the Prefect of Haute-Vienne and, having been forced into a French police car, was taken to Switzerland. He was provisionally incarcerated in Switzerland, where Italy requested his extradition, and then handed over to the Italian authorities, which led to France being condemned by the ECHR.
Finally, a fourth notion should not be confused with extradition: the surrender of a person in execution of a European arrest warrant. The European arrest warrant was instituted by the framework decision of the Council of the European Union of 13 June 2002 and introduced into French law by Act No. 2004-204 of 9 March 2004. This procedure is not a simplified extradition procedure but a new form of cooperation that replaces extradition by a system of surrender between judicial authorities.
Extradition law is a complex law. It stems from the Act of 10 March 1927, which was repealed by Act No. 2004-204 of 9 March 2004, known as Perben II, adapting the justice system to developments in crime. It is now codified in Articles 696 et seq. of the Code of Criminal Procedure, which states: "In the absence of an international convention stipulating otherwise, the conditions, procedure and effects of extradition are determined by the provisions of this chapter. These provisions also apply to points that have not been regulated by international conventions.
This article is essential because it establishes the principle of the subsidiary and suppletive nature of the rules as laid down in the Code of Criminal Procedure. The articles of the Code of Criminal Procedure are subsidiary because, generally, there is a convention, a treaty or a bilateral agreement that applies to the case. In the hierarchy of norms, international texts are superior to domestic law.
There are many international conventions in this field, but the most important of them, the one that constitutes the core of international law in this area, is the European Convention on Extradition signed in Paris on 13 December 1957, within the framework of the Council of Europe, which entered into force in France on 11 May 1986. It should be noted in this respect that when France belatedly ratified the European Convention on Extradition, it expressed a number of reservations which are worth noting and to which we shall return.
To date, 50 countries have ratified this international convention, including three that are not members of the Council of Europe (South Africa, Israel and South Korea) . The provisions of the Code of Criminal Procedure are therefore subsidiary in the sense that they are intended to apply to the various points that have not been regulated by the international treaties.
From the point of view of the person who is the subject of the extradition request, the main idea that emerges from the study of the case law of the Criminal Division of the Court of Cassation is that the investigating chamber must systematically verify the legal grounds, most often enshrining fundamental rights and freedoms as well as fundamental procedural guarantees, which are invoked by the applicant, even if it means ordering additional information.
The purpose of this additional information is to obtain sufficiently clear and precise answers from the requesting state on a point of law, a factual element, or on guarantees relating to the fate of the person concerned in the event that the investigating chamber issues a favourable opinion on extradition. The Court of Cassation – supreme judicial court – is not the only one to exercise judicial control over the extradition procedure, as judicial control is also exercised by the Council of State – supreme administrative court.
Indeed , the final decision rests with the French government, extradition being authorised by a decree of the Prime Minister issued on a report of the Minister of Justice. This means that the extradition decree can be challenged on the grounds of abuse of power. This appeal will, in fact, have suspensive effect. Thus, while the examination of the extradition request is the responsibility of the judicial authority, the execution of the extradition request following the opinion of the investigating chamber is the responsibility of the administrative authority.
The accused or convicted person who is the subject of an extradition request from a foreign State may either consent or oppose it. In the latter case, the practitioner must urgently ascertain whether there are any legal grounds of preventing extradition, in addition to the need to verify the legality of the procedure, which is governed exclusively by the Code of Criminal Procedure.