22 Oct 2016, 42 mins ago

Russia signs the Fourth Additional Protocol to the 1957 European Convention on Extradition

On 24 February 2015 the Russian Federation became the seventeenth country to sign the Fourth Additional Protocol to the European Convention on Extradition.

The 1957 European Convention on Extradition provides for extradition arrangements between its 50 signatories. The Convention is signed by all 47 members of the Council of Europe i.e. Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Republic of Moldova, Monaco, Montenegro, Netherlands, Norway, Poland, Portugal, Romania, Russian Federation, San Marino, Serbia, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, The former Yugoslav Republic of Macedonia, Turkey, Ukraine and the United Kingdom. In addition there are 3 Contracting Parties who are non-members of the Council of Europe; these are Israel, South Korea and South Africa.

Obviously many of the signatories to the Convention are also members of the EU and therefore members of the European Arrest Warrant scheme, which is governed by the 2002 European Union Council Framework Decision. Nevertheless, the Convention remains the underlying instrument governing the UK’s extradition arrangements with many states including, for example, Russia.

This Fourth Additional Protocol is the second additional protocol to the Convention in recent years and is part of the continuing trend of the simplification of extradition procedures and the adaption of the 1957 Convention to modern needs and to changes in international and EU law.

The key changes involve:

• How ‘lapse of time’ is dealt with under the Convention

 –  Article 1 of the Protocol is designed to replace the existing Article 10 of the Convention and provides for a mandatory ground of refusal of an extradition request where the prosecution or punishment in question is statute-barred in the requesting state for reason of ‘lapse of time’ e.g. where there is an applicable statute of limitations.

 –  In other circumstances, whilst the Protocol provides that ‘lapse of time’ is not a general ground for refusing a request in principle, it does permit a state to invoke lapse of time as an optional ground for refusal.

• How extradition requests are to be communicated

 –  Articles 2 and 6 make changes to the way in which extradition requests are communicated.

 –  The default position is that extradition requests should be sent from the Ministry of Justice of the requesting state to the Ministry of Justice of the requested state.

 –  States can designate an alternative authority to receive and send extradition requests.

 –  The new Protocol aims to create a common system for the transmission of requests. Article 6 of the Protocol permits the electronic communication of requests, this includes communicating request to Interpol as well as through diplomatic channels. States are still able to insist upon original or authenticated hardcopy documents but there is clearly a trend towards electronic transmission and receipt.

• The rule of Specialty

 –  In simple terms ‘specialty’ prevents a requesting country from charging or conducting a trial of an individual for any offences not covered by the original extradition request without the consent of the extraditing state.

 –  Article 3 of the Protocol replaces Article 14 of the Convention, which deals with ‘specialty’.

 –  In some states there has been confusion as to whether specialty prevents offences being investigated or evidence being gathered about other offences. The amendment permits a state to investigate and collect evidence in relation to other offences whilst retaining the protection against an individual being ‘arrested, prosecuted or tried’.

 –  Further proceedings against an individual that are protected by ‘specialty’ require the permission of the extraditing state. The

Protocol introduces a 90-day time limit for them to respond to a request for this consent.

 –  ‘Specialty’ protection is time limited. Once an individual is dealt with for the offence they have been extradited for they have traditionally had 45 days continuing specialty protection. This allows them to leave the country before a new prosecution can commence.

The new Protocol reduces this timeframe from 45 days to 30 days. As with the other reforms to specialty it can be seen that this change somewhat weakens the protection afforded to extradited individuals in favour of the state. However, the protection remains. Individuals who are extradited should still be given 30 days to leave the country before a fresh prosecution begins – assuming the extraditing state has not granted permission.

• The rules governing re-extradition to a third state

 –  A person who has been extradited to a state cannot then be re-extradited to a third state without the permission of the original extraditing state. The Protocol introduces a 90-day time limit for the original extraditing state to respond to this request.

• The rules governing the transit of individuals under the Convention

 –  The Protocol aims to simplify the rules governing the transit of individuals subject to extradition under the Convention.

 –  The Protocol states that in normal circumstances Contracting Parties should always grant permission for the transit of an extradited individual through their territory provided that state does not consider the offence in question to be of a political or military character.

 –  The Protocol details the information that a request must contain.

 –  It is no longer an obligation to notify a Party whose air space it is intended to use if there is no intention to land. There are procedures in the Protocol to govern where there is an unscheduled landing.

 –  The Protocol provides that an extradited person shall not be transported through any territory where their life or freedom may be threatened by reason of their race, religion, nationality or political opinion.

The Protocol is reflective of general trends in international extradition law aimed at speeding up extradition, sadly in many cases at the expense of the requested person’s rights. So far the Protocol has only been formally ratified by the UK, Albania, Latvia and San Marino but these numbers are likely to increase given the number of signatories to the Protocol.

Gherson has extensive experience dealing with extradition requests based upon the 1957 Convention on Extradition both here in the UK but also abroad and has a unique depth of experience in handling Russian cases. Should you wish to speak to one of our team please do not hesitate to contact us.

19 March 2015