Extradition Law, Miguel João Costa offers not only an exhaustive review of this legal area and of transnational criminal law more generally, but also innovative solutions for their reform.
The book critically analyses numerous themes – from international cooperation in criminal matters to substantive criminal law and procedure, from human rights to nationality and refugee law, from public to private international law – at the national, European and global levels. Moreover, while it is a fundamentally normative study, it does not disregard the political and diplomatic dimensions of extradition either.
The result is a new model based on mutual respect, enabling States to increase cooporation whilst preserving the integrity of their own criminal justice values and enhancing the respect for human rights.
Miguel João Costa, Ph.D. (2019), Maastricht University, Advisor to the Constitutional Court of Portugal, has published work on criminal law and international cooperation, including a monograph on the principle
aut dedere aut judicare (Instituto Jurídico da Universidade de Coimbra, 2014).
Table of contents
Acknowledgements List of Illustrations Abbreviations
Part 1 Introduction 1 Fundamental Concepts 1 The Purpose of This Study
2 The Concept of Extradition
Definition and Essential Attributes 2.2
Contrast with Substantive Criminal Law and Criminal Procedure 3 Why States Need to Obtain Extradition
Transfer of Proceedings 3.2
Vicarious Jurisdiction 3.3
Common Attributes 3.4
Enforcement of Foreign Sentences 3.5
The Perspective of the Custodial State 3.6
Standing Trial by Video-Link 3.7
Conclusion 4 Why States Need to Extradite
Avoiding the Settling of Criminals (the ‘safe haven’ Argument)? 4.2
Solidarity towards Other States (the ‘moral’ Argument)? 4.3
Reciprocity (the ‘self-interest’ Argument)v 4.4 Conclusion 5 The Concept of Ground for Refusal 5.1 Basic Definition 5.2 Grounds for Refusal Related to Mere Issues of Interstate Allocation of Jurisdiction 5.3 Grounds for Refusal that Generate Impunity 5.4 Other Concepts 2 Research Design 1 Research Question 2 Research Methods 2.1 Historical Analysis 2.2 Grounds for Refusal Imposed upon States – Deductive Analysis 2.3 Grounds for Refusal Voluntarily Enacted by States – Two-Tiered Approach 3 The Dialogue between Traditional Cooperation and Mutual Recognition 3.1 The European Arrest Warrant and Other Enhanced Versions of Extradition 3.2 The European Arrest Warrant and Classic Extradition – Trust Issues 4 Conclusion 5 Temporal Range of the Study Part 2 Grounds for Refusal Imposed upon States 3 Human Rights 1 The Evolution of Fundamental Individual Rights in Extradition 1.1 Individual Concerns in Extradition 1.2 The Advent of Individual and Human Rights in Extradition 2 Specifications on the Method 3 Criteria for Defining ‘grounds for refusal imposed by human rights’ 3.1 Declared v. Potential Grounds for Refusal 3.2 Stable v. Unstable Grounds for Refusal 3.3 Principled v. Pragmatic Approaches to Human Rights 3.4 Grounds for Refusal of Extradition v. Prohibitions to Deport 3.5 Conduct of the Requesting State v. Other Sources of Harmv 3.6 Human Rights Grounds for Refusal v. Treaty-Based Obligations to Extradite 3.7 Conclusion 4 Grounds for Refusal Imposed by Human Rights 4.1 Right to Life 4.2 Prohibition of Torture and Ill-Treatment 4.3 Discrimination 4.4 Fair Trial Rights 4.5 Rights that Admit Significant Compression with a View to Protecting Other Rights or Public Interests 4 EU Law 1 Introductory Considerations – a Trilogy of Cases 2 Petruhhin 2.1 Main Proceedings and Request for a Preliminary Ruling 2.2 The Opinion of the Advocate General 2.3 The Judgement of the Court 2.4 Analysis 3 Schotthöfer & Steiner 3.1 Main Proceedings and Request for a Preliminary Ruling 3.2 The Order of the Court 3.3 Analysis 4 Pisciotti 4.1 Main Proceedings and Request for a Preliminary Ruling 4.2 The Opinion of the Advocate General 4.3 The Judgement of the Court 4.4 Analysis 5 Raugevicius 6 The Emergence of a EU Extradition Law 7 Conclusion Part 3 Grounds for Refusal Voluntarily Enacted by States 5 Specifications and General Characterisation of the Normative Systems Analysed 1 Specifications on the Research Methods, Object and Structure of this Part 1.1 Scope 1.2 Structure 1.3 Main References 1.4 Approach 2 General Characterisation of the Normative Systems Assessed 2.1 United Nations 2.2 Portugal 2.3 United Kingdom 6 Analysis of Grounds for Refusal According to Their Scope and Rationale 1 Grounds for Refusal Related to the Conditions in the Requesting State 1.1 Torture or Ill-Treatment and Fair Trial Rights 1.2 Discrimination 1.3 Death Penalty and Other Penalties Carrying Irreversible Damage 1.4 Imprisonment for Life or for an Undetermined Period 1.5 Hostage-Taking Considerations 2 Grounds for Refusal Related to the Nature or Relevance of the Acts 2.1 Dual Criminality 2.2 Relevance 2.3 Political Offences 2.4 Military Offences 3 Grounds for Refusal Related to the Punitive Claim of the Requesting State 3.1 Evidentiary Requirement 3.2 Absence of a Prosecution Decision 3.3 Extinction of Criminal Liability 3.4 Extraterritorial and Invalid Jurisdiction 4 Grounds for Refusal Related to the Status or Condition of the Person 4.1 Nationality/Rehabilitation 4.2 Humanitarian Exception 4.3 International Immunities 5 Grounds for Refusal Related to the Misuse of Extradition Proceedings by the Requesting State 5.1 Specialty 5.2 Earlier Extradition (or Limitation on Re-Extradition) 5.3 Abuse of Process Jurisdiction 6 Grounds for Refusal Related to Mere Issues of Interstate Allocation of Jurisdiction 6.1 Territoriality 6.2 Pending Proceedings or Possibility or Duty to Initiate Proceedings 7 Grounds for Refusal Related to Political Concerns of the Requested State 7.1 National Security 7.2 Reciprocity Part 4 Reviewing Grounds for Refusal 7 Questioning Grounds for Refusal: Theoretical Framework 1 Recalibrating the Research Question 1.1 Specifications Required by the Concept of ‘ground for refusal’ Adopted 1.2 Specifications Regarding Grounds for Refusal Imposed upon States 1.3 Specifications Regarding International Crimes 1.4 Specifications Regarding the Theoretical Framework 2 Historical layer – the Problem 2.1 Dynamic Realities 2.2 Static Laws 3 Normative Layer – the Solution 3.1 The Rule: Furthering the Principle of Territoriality 3.2 The Exception: Preserving Core National Values 3.3 The Balance: Weighing the Interests of the Subjects Involved 4 General Conclusion: a Matter of Degree 8 Reforming Grounds for Refusal: Theoretical Framework Applied 1 Introductory Considerations and Specifications on the Method 2 Grounds for Refusal Related to Political Concerns of the Requesting State 2.1 The Inexorability of Political Interference in Extradition 2.2 Reciprocity 3 Grounds for Refusal Preserved in the eaw: Negative Candidates to Be Reformed 3.1 Grounds for Refusal Related to the Conditions in the Requesting State 3.2 Grounds for Refusal Related to the Nature or Relevance of the Acts 3.3 Grounds for Refusal Related to the Punitive Claim of the Requesting State 3.4 Grounds for Refusal Related to the Status or Condition of the Person 3.5 Grounds for Refusal Related to the Improper Use of the Extradition Process by the Requesting State 3.6 Grounds for Refusal Related to Mere Issues of Interstate Allocation of Jurisdiction 4 Grounds for Refusal Abolished or Mitigated in the eaw: Positive Candidates to Be Reformed 4.1 Grounds for Refusal Related to the Nature or Relevance of the Acts 4.2 Grounds for Refusal Related to the Punitive Claim of the Requesting State 4.3 Grounds for Refusal Related to the Status or Condition of the Person 5 Final Considerations 5.1 Connecting Some Dots 5.2 Enhancing the System 9 Conclusions: Reshaping the Extradition Triangle
Annex: Graphic Illustration of the Reform Defended References Indices
Anyone interested in transnational criminal law, particularly in extradition, from academics to practitioners and policy-makers, whether more interested in finding innovative approaches or in consulting a textbook on the subject.