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Do you think extradiction should be automatic?

*Lunatic*, n.
One whose delusions are out of fashion.
by DoDo on Thu Dec 3rd, 2009 at 05:20:18 PM EST
[ Parent ]
The Charter of Fundamental Rights of the European Union, Article 20 says "everyone is equal before the law."

Now this does not seem to be the case for certain privileged states, such as Germany, within the EU. A citizen of a privileged state can commit crimes in one state and then escape to their the safe haven.

Personally, I do not understand how a justice system can work in the EU if extraditions are blocked. I think either EU member states trust the justice systems in their fellow EU states, or they don't.

If some states protect their citizens from prosecution by other states, when other states do not, how is this equality?

 

This is how extradition is handled in the U.S., 18 U.S.C. § 3182:

Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State, District, or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, the executive authority of the State, District, or Territory to which such person has fled shall cause him to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within thirty days from the time of the arrest, the prisoner may be discharged.

So, if a person allegedly commits a crime in one state he or she cannot hide out in another state and expect to escape justice within the Union.

by Magnifico on Thu Dec 3rd, 2009 at 05:39:19 PM EST
[ Parent ]
In the EU, Police and Judicial Cooperation in Criminal Matters is a work in progress. The newly approved Lisbon Treaty is a huge step in advancing this agenda.

Regarding extradition, I'm sure a number of states are not allowed either by their constitutions or by their laws to extradite one of their own citizens. This should become a bone of contention at some point in the future.

En un viejo país ineficiente, algo así como España entre dos guerras civiles, poseer una casa y poca hacienda y memoria ninguna. -- Gil de Biedma

by Carrie (migeru at eurotrib dot com) on Thu Dec 3rd, 2009 at 05:46:55 PM EST
[ Parent ]
In Germany's case, there was a constitutional amendment relativising this prohibition.

This doesn't seem to apply her, but I note the EAW includes this:

EUR-Lex - 32002F0584 - EN

(12) This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union(7), in particular Chapter VI thereof. Nothing in this Framework Decision may be interpreted as prohibiting refusal to surrender a person for whom a European arrest warrant has been issued when there are reasons to believe, on the basis of objective elements, that the said arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person's position may be prejudiced for any of these reasons.

This Framework Decision does not prevent a Member State from applying its constitutional rules relating to due process, freedom of association, freedom of the press and freedom of expression in other media.



*Lunatic*, n.
One whose delusions are out of fashion.
by DoDo on Thu Dec 3rd, 2009 at 05:56:13 PM EST
[ Parent ]
These seem to be the relevant articles:

EUR-Lex - 32002F0584 - EN

Article 3

Grounds for mandatory non-execution of the European arrest warrant

The judicial authority of the Member State of execution (hereinafter "executing judicial authority") shall refuse to execute the European arrest warrant in the following cases:

...

2. if the executing judicial authority is informed that the requested person has been finally judged by a Member State in respect of the same acts provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing Member State

Article 4

Grounds for optional non-execution of the European arrest warrant

The executing judicial authority may refuse to execute the European arrest warrant:

1. if, in one of the cases referred to in Article 2(4), the act on which the European arrest warrant is based does not constitute an offence under the law of the executing Member State; however, in relation to taxes or duties, customs and exchange, execution of the European arrest warrant shall not be refused on the ground that the law of the executing Member State does not impose the same kind of tax or duty or does not contain the same type of rules as regards taxes, duties and customs and exchange regulations as the law of the issuing Member State;

2. where the person who is the subject of the European arrest warrant is being prosecuted in the executing Member State for the same act as that on which the European arrest warrant is based;

3. where the judicial authorities of the executing Member State have decided either not to prosecute for the offence on which the European arrest warrant is based or to halt proceedings, or where a final judgment has been passed upon the requested person in a Member State, in respect of the same acts, which prevents further proceedings;

...

5. if the executing judicial authority is informed that the requested person has been finally judged by a third State in respect of the same acts provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing country;

...

7. where the European arrest warrant relates to offences which:

(a) are regarded by the law of the executing Member State as having been committed in whole or in part in the territory of the executing Member State or in a place treated as such; or

(b) have been committed outside the territory of the issuing Member State and the law of the executing Member State does not allow prosecution for the same offences when committed outside its territory.



*Lunatic*, n.
One whose delusions are out of fashion.
by DoDo on Thu Dec 3rd, 2009 at 06:03:07 PM EST
[ Parent ]
I see this wasn't commented.

From the word choice of the German federal justice ministry ("zwingendes Bewilligungshindernis" = mandatory obstacle to approval), it seems Article 3, point 2 applied.

*Lunatic*, n.
One whose delusions are out of fashion.

by DoDo on Thu Dec 3rd, 2009 at 06:50:01 PM EST
[ Parent ]
I would be curious how the 2007 decision was commented in Spain. It appears at least that the case died in 2007.

*Lunatic*, n.
One whose delusions are out of fashion.
by DoDo on Thu Dec 3rd, 2009 at 06:51:37 PM EST
[ Parent ]
This strikes me as a large loophole. A person could commit crimes in another state with tacit approval by their own state.

3. where the judicial authorities of the executing Member State have decided either not to prosecute for the offence on which the European arrest warrant is based or to halt proceedings

However the no double jeopardy is good, but I hope "final judgment" aren't weasel words. I would expect a "final judgment" to be a court decision.

or where a final judgment has been passed upon the requested person in a Member State, in respect of the same acts, which prevents further proceedings;
by Magnifico on Thu Dec 3rd, 2009 at 06:53:50 PM EST
[ Parent ]
3. where the judicial authorities of the executing Member State have decided either not to prosecute for the offence on which the European arrest warrant is based or to halt proceedings

This is about dead laws and toleration, like blasphemy or use of light drugs. (I note that the EAW is controversial for over-use in drug cases, including light drugs.) No European judicial authorities have decided that the crime of joining a terrorist organisation shall be non-punishable.

*Lunatic*, n.
One whose delusions are out of fashion.

by DoDo on Thu Dec 3rd, 2009 at 06:58:37 PM EST
[ Parent ]
Darkazanli was no fugitive from justice, and I'm not sure he was accused of having done anything in Spain... (as opposed to having contacts with the leader of the Spanish terror cell.) Though the question of being a fugitive featured in another failed extradiction under the EAW, that of an Irish manager who ran over and killed two children with his car in Hungary. (That one led to a change in Irish law.)

*Lunatic*, n.
One whose delusions are out of fashion.
by DoDo on Thu Dec 3rd, 2009 at 05:53:03 PM EST
[ Parent ]
Another omission from last night: the USA? too, has double jeopardy in similar cases, even if with constraints.

Double jeopardy - Wikipedia

Non-final judgments

As double jeopardy applies only to charges that were the subject of an earlier final judgment, there are many situations in which it does not apply despite the appearance of a retrial. For example, a second trial held after a mistrial does not violate the double jeopardy clause because a mistrial ends a trial prematurely without a judgment of guilty or not guilty. Cases dismissed because of insufficient evidence may constitute a final judgment for these purposes though many state and federal laws allow for substantially limited prosecutorial appeals from these orders. Also a retrial after a conviction has been reversed on appeal does not violate double jeopardy because the judgment in the first trial has been invalidated. In both of these cases, however, the previous trials do not entirely vanish. Testimony from them may be used in later retrials such as to impeach contradictory testimony given at any subsequent proceeding.



*Lunatic*, n.
One whose delusions are out of fashion.
by DoDo on Fri Dec 4th, 2009 at 07:39:51 AM EST
[ Parent ]
Actually, the original comment ("person could commit crimes in another state with tacit approval by their own state") may apply precisely in the case of the U.S., as in the case of terrorists such as Orlando Bosch and Luis Posada Carrilles.
by gk (gk (gk quattro due due sette @gmail.com)) on Fri Dec 4th, 2009 at 07:47:40 AM EST
[ Parent ]

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