‘Surrender’ vs. ‘Extradition’: A Comparison Focused on Innovations of the European Arrest Warrant

Faculty of Law, Pan-European University, Bratislava, Slovak Republic



This chapter deals with a comparison of the ‘surrender’ and the ‘extradition’ focusing on the innovations of the European arrest warrant. It is divided into eight sections and is summarised with concluding observations. First and the foremost, Sect. 13.1 examines the terminology and material act both of the ‘surrender’ and the ‘extradition’. Subsequently, Sect. 13.2 emphasises the difference between them as regards legal basis. Further sections are of a procedural matter. While Sect. 13.3 deals with the obligation to execute the requests/application, Sect. 13.4 deals with the nature of procedures. Further, Sect. 13.5 is focused on the requested person’s nationality as a milestone in the history of the extradition of nationals. Section 13.6 is focused on a revolutionary step taken by the Framework Decision 2002/584/JHA on the European arrest warrant—the softening of the double criminality requirement. Furthermore, Sect. 13.7 highlights the time limits and Sect. 13.8 highlights the limited scope of the grounds for non-execution the request.

A very large majority of the authorities involved in the operation of the European arrest warrant are of the view that it has significant advantages compared with the traditional extradition system […].1 (Council of the European Union)

At the outset of the chapter two notes should be mentioned. First, the chapter is based on previous chapters. It is a synthesis of knowledge already has been observed in this work. Second, as indicated in the headline, the chapter is focused on innovations of the EAW and therefore in-depth analysis of the extradition procedure is not included.

13.1 Terminology and Material Act: ‘Surrender’ vs. ‘Extradition’

In our opinion, as argued in the third chapter, the surrender replaced extradition as far as the territory of the EU is concerned. However, the material act is the same. This assumption is supported by both scholars and the practice.

As argues Lagodny, the Framework Decision on the EAW generally avoids the term ‘extradition’. Instead, it uses ‘surrender’. In his opinion, the major and relevant change is of a procedural nature, not a matter of substance or of concept.2 Further, as argues Klip, although the Framework Decision uses the term ‘surrender’ instead of ‘extradition’, the material act of the surrender is no different from that of extradition.3 In the opinion of Deen-Racsmány, the Framework Decision on the EAW deviates from classical extradition rules, procedures, and terminology […]. Surrender under the EAW is in essence the same legal institution as extradition or it is a sub-category thereof.4 Similarly, Zurek argues that the EAW is a kind of extradition.5

In the opinion of the Polish Constitutional Tribunal, ‘extradition’ and ‘surrender’ can only be considered as two separate procedures if they differ by nature. This is not the case—both involve the transfer of a person to another country for the purpose of criminal prosecution or the execution of a sentence. In the words of the Tribunal:

[…] the surrender of a person indicted on the basis of an EAW could only be regarded as an institution differing from extradition […] if its substance was essentially different. As the (core) sense of extradition consists of the surrender to a foreign State of an indicted or convicted person, in order to enable the conduct of criminal proceedings against this person, or the serving of punishment established by a sentence concerning this person, therefore the surrender of a person indicted by the EAW, for the purpose of conduct against that person on the territory of another EU Member State of criminal proceedings or of serving of a delivered sentence of imprisonment or some other custodial measure, must be recognised as its modality.6

As argues the Constitutional Court of the Czech Republic, it is essential to distinguish between traditional ‘extradition’ and the ‘surrender’ of persons between the EU Member States on the basis of the EAW. In its opinion the EAW replaced traditional extradition in relations between the EU Member States, and represents a procedure that is qualitatively entirely different […].7

13.2 Legal Basis: EU’s Framework Decision vs. International Convention(s)

Prior to the enactment of the EAW, the principal rules and practices of extradition constitute a significant body of international law. In certain important matters there is considerable uniformity in bilateral treaties and municipal extradition statutes. In many other respects, extradition treaties and legislation present a complex and varying picture throughout the world. Many States insist on reciprocity and require an international agreement for extradition. To achieve this international co-operation some form of arrangement is there necessary between involved States. The arrangement may be based on a treaty—bilateral or multilateral—or on the application with respect to the requesting State of the requested State’s domestic extradition legislation.

Apart from numerous bilateral agreements, the basic multilateral treaty in Europe is the European Convention on Extradition and its additional protocols, which represents a traditional scheme on extradition. It should be noted that it is the oldest of the conventions relating to penal matters prepared within the Council of Europe. In addition to that, at the EU level the extradition is stipulated in further conventions.

As observed in the third chapter, the EAW was introduced by a framework decision, not by a convention.

Pursuant to the Treaty on EU as amended both by the Treaty of Amsterdam and the Treaty of Nice, the framework decisions were adopted for the purpose of approximation of the laws and regulations of the EU Member States. They shall be binding upon the Member States as to the result to be achieved but shall leave to the national authorities the choice of form and methods. The Treaty on EU added—they shall not entail direct effect.8 It follows that the EU Member States were (and still are) obliged to introduce national legislation to bring ‘European legislation’ into force. However, the Treaty on EU did not give any rules on implementing framework decisions.

Framework decisions can best be compared with the legal instrument of a directive. The text of Article 34(2)(b) of the Treaty on EU is closely in line with the description of the First Pillar legal instrument of the directive in the third paragraph of Article 249 of the Treaty establishing the European Community.9 , 10 In both provisions, the binding force in relation to the result to be achieved and the right to choose the form and methods is stated.11 Thus, both instruments are binding upon Member States of the EU as to the result to be achieved but leave to the national authorities the choice of form and methods.

Again, a principal question which begs consideration is why the EAW was introduced by the framework decision?

As observed in the third chapter, the conventions drawn up under the Council of Europe as well as in European political co-operation or in the EU had limited success and slow progress in ratifications. Both the legal order flowing from the Treaty on EU and the advanced state of judicial co-operation between EU Member States justified the creation of the EAW by a framework decision.12 Framework decisions have quickly become useful and popular legal instruments among EU policymakers, because they made it possible to avoid the long procedures connected with the negotiation, signature and ratification of international conventions. For this reason, the EU has increasingly adopted framework decisions since the entry into force of the Treaty of Amsterdam amending the Treaty on EU.13

As observed in the third chapter, a Belgian non-profit-making association Advocaten voor de Wereld (eng. Lawyers for the World) brought an action before Belgian Court of Arbitration seeking the annulment of the Belgian law transposing the provisions of the Framework Decision on the EAW into national law. The Court of Arbitration referred for a preliminary ruling to the Court of Justice of the EU a question concerning the validity of the Framework Decision on the EAW, whether it was compatible with the Treaty on EU for purposes of EAW adoption. However, the Court of Justice in the case of Advocaten voor de Wereld 14 confirmed the framework decision as a valid legislative measure introducing the EAW and the surrender procedure.

13.3 The Obligation to Execute the Request: Mutual Recognition vs. Assistance

Extradition can be defined as a process whereby States provide to each other assistance in criminal matters. It does not exist as an obligation upon States in customary law.15

Contrary to the extradition, as far as the EAW is concerned, the EU Member States shall execute any EAW on the basis of the principle of mutual recognition […].16 When a judicial authority of a Member State requests the surrender of a person, its decision must be recognised and executed throughout the entire EU 17 (emphasis added). Tomuschat considers the duty of States to execute a foreign sovereign act, i.e., an arrest warrant, on the basis of the principle of mutual recognition as the most prominent characteristic of the EAW.18

Mutual recognition of judicial decisions has dominated the development of EU Criminal law (details see Chap. 5, Sect. 5.​1). In addition, it should be not overlooked that the mechanism of mutual recognition rests on a high level of mutual trust.19 If there is trust in another legal system and in their judges, there is in principle no problem in executing a foreign request in the same way as if it were a national decision or request (details see Chap. 5, Sect. 5.​2).

13.4 Nature of Procedure: Judicial vs. Political

In the previous extradition system the provisional arrest warrant and the extradition request were two separate phases of the procedure.

The procedure for executing the EAW is primarily judicial. Using surrender procedure it is no longer necessary to distinguish the two phases. The political phase inherent in the extradition procedure is abolished. Accordingly, the administrative redress phase following the political decision is also abolished. The removal of these two procedural levels improves the effectiveness and speed of the mechanism.

This acceleration of procedure has been achieved by requiring only one judicial decision for both arrest and surrender—i.e. the EAW issued by one judicial authority. As a result of this innovation, which excludes any political involvement of the ministers of justice and/or foreign affairs, it is possible to argue that the EAW procedure is ‘judicialised’.20

It should be noted that contrary to innovations of the Framework Decision on the EAW some EU Member States partially appointed central authorities in the guise of competent authorities, namely Estonia, Latvia, Lithuania, Finland and Sweden. On top of that, Denmark appointed a central authority in the guise of competent authority in all matters, namely the Ministry of Justice. It is the only designated judicial authority under the Framework Decision. It is thus the only authority in Denmark with a competence to receive and execute EAWs.21

13.5 The Requested Person’s Nationality: EU Citizens vs. EU Member States Nationals

More often than not, States resist extraditing their nationals. Reasons supporting the nationality exception relate to the sovereign authority of a State over its citizens. States have a constitutional provision granting their nationals the right not to be extradited to a foreign country for prosecution or punishment. Since the enactment of the European Convention on Extradition in 1957, efforts have been made to simplify extradition procedures in the EU. In the EU Extradition Convention of 1996, one of the most important innovations was the abolishment of the nationality exception between EU Member States. States were still able to avoid extraditing their own nationals, however, by making a reservation to the articles involving extradition of a State’s nationals.22

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