MODULE II: THE INSTRUMENTS OF JUDICIAL COOPERATION IN CRIMINAL MATTERS IN THE CONTEXT OF THE COUNCIL OF EUROPE.- TUTOR: JOSÉ MIGUEL GARCÍA MORENO Red Europea de Formación Judicial (REFJ) European Judicial Training Network (EJTN) Réseau Européen de Formation Judiciaire (REFJ)

EXTRADITION: THE COUNCIL OF EUROPE CONVENTION OF1957 European Convention on Extradition of 13 December 1957  Territorial Scope All Council of Europe countries (except Monaco and San Marino), Israel and the Republic of South Africa.  Protocols First Additional Protocol of 17 October 1975, in force since 20 August Second Additional Protocol of 17 March 1978, in force since 5 June1983.

EXTRADITION: THE COUNCIL OF EUROPE CONVENTION General Rules (I): General obligation to grant extradition of persons sought for an offence or for the carrying out of a sentence or detention order (Article 1). Extradition shall be granted in respect of offences punishable under the laws of the requesting Party and of the requested Party (principle of dual criminality) above a minimum limit set in the Convention: sentence or detention order involving deprivation of liberty for a maximum period, in general, of at least one year, or a sentence or detention order involving deprivation of liberty for at least four months in a specific case (Article 2).

EXTRADITION: THE COUNCIL OF EUROPE CONVENTION General Rules (II):  Extradition is ruled out in relation to: Offences regarded by the requested party as a political offence or as an offence connected with a political offence (Article 3.1). Requests made in order to prosecute or punish a person on account of his race, religion, nationality or political opinions (Article 3.2) Offences under military law which are not offences under ordinary criminal law (Article 4)  The requested state may refuse extradition of its nationals (Article 6), but At the request of the requesting party it will submit the case to its competent authorities in order that proceedings may be taken against a particular national (principle of aut dedere aut judicare).

EXTRADITION: THE COUNCIL OF EUROPE CONVENTION General Rules (III):  Other cases of optional exclusion or refusal of extradition (Articles 7 to 11): When the jurisdiction of the requested state and that of the requesting state coincide. When the person sought has been the object of a final judgment issued by the competent authorities of the requested party (principle of ne bis in idem). When the person claimed has become immune by reason of lapse of time from prosecution or punishment. If the offence for which extradition is requested is punishable by death.

EXTRADITION: THE COUNCIL OF EUROPE CONVENTION General Rules (IV):  Rule of speciality (Article 14): It prevents the extradited person from being proceeded against, sentenced, detained or otherwise restricted in his personal freedom in the requesting state for any offence committed prior to his surrender, other than that for which he was extradited, except in the following cases: - when the party which surrendered him consents - when that person, having had an opportunity to leave the territory of the Party to which he has been surrendered, has not done so within 45 days of his final discharge, or has returned to that territory after leaving it.

EXTRADITION: THE COUNCIL OF EUROPE CONVENTION  General Rules (V):  Re-extradition to a third state (Article 15) The consent of the requested party is necessary when the person is sought in respect of offences committed before his surrender to the requesting state. The consent of the requested party will not be necessary if the surrendered person, having had an opportunity to leave the territory of the Party to which he has been surrendered, has not done so within 45 days of his final discharge, or has returned to that territory after leaving it.

EXTRADITION: THE COUNCIL OF EUROPE CONVENTION General Rules (VI): The request shall be in writing and shall be supported by: conviction and sentence or detention order, statement of the offences for which extradition is requested, copy of the relevant enactments and description of the person claimed (Article 12) Communication via the corresponding Ministries of Justice, without excluding use of diplomatic channels, originally envisaged in Article 12.1 (Article 5 of the Second Additional Protocol to the Convention) The provisional arrest of the person sought may be requested in urgent cases (Article 16) The extradition and provisional arrest procedures are governed solely by the law of the requested state (Article 22)