The Decline of the Nationality Exception in European Extradition? The Impact of the Regulation of (Non-)Surrender of Nationals and Dual Criminality under the European Arrest Warrant

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The Decline of the Nationality Exception in European Extradition?

The Impact of the Regulation of (Non-)Surrender of Nationals and Dual Criminality under the European Arrest Warrant

Zsuzsanna Deen-Racsmány and Judge Rob Blekxtoon

Abstract: The European Arrest Warrant constitutes an ambitious attempt to curb what has now for centuries been accepted as the sovereign right of States to refuse extradition of their nationals. Its regulations clearly draw on previous developments in the field of extradition, recognition and enforcement of foreign judgments, transfer of proceedings and transfer of prisoners. However, the European Arrest Warrant goes further than other instruments in its restriction of the nationality exception. Moreover, it simultaneously attempts to remove the dual criminality requirement for a large group of crimes. The present article analyzes the potential effects of these novel features of the European Arrest Warrant. The authors conclude that whereas the intentions of the drafters are commendable, the relevant provisions of this instrument as well as of its faulty domestic implementing statutes may in fact increase rather than reduce controversies related to requests for the surrender of nationals in Europe.

  1. Introduction

Many States are traditionally strongly opposed to extraditing their own nationals.1 This attitude and practice are commonly based on or confirmed in national legislation (often of a constitutional rank) granting nationals the right to remain in the territory of the State, not to be extradited or expelled.2

The nationality exception to extradition has its origins in the sovereign authority of the ruler to control his subjects, the bond of allegiance between them, and the lack of trust in other legal systems. The traditionally voiced reasons in support of this exception are the following:

(1) the fugitive ought not be withdrawn from his natural judges; (2) the state owes its subjects the protection of its laws; (3) it is impossible to have complete confidence in the justice meted out by a foreign state, especially with regard to a foreigner; and (4) it is disadvantageous to be tried in a foreign language, separated from friends, resources and character witnesses.3

These justifications, as well as the nationality exception in general, have been criticized, inter alia, for being based on “a form of legal xenophobia that is not warranted, especially if the treaties contain the requisite safeguards”,4 arguing that “if justice as administered in other States is not to be trusted, then there should be not extradition at all”.5 A more pragmatic problem with the application of the rule is that “prosecuting [the accused] for a crime committed far away will cause enormous difficulties and may cost huge amounts of money, with a still higher risk than in national cases that the accused may be found not guilty because of a lack of evidence”.6

In fact, presumably few judges would have serious moral objections today to granting the extradition of fellow nationals for serious crimes committed abroad, which are obviously criminal wherever in the world they are committed if prosecution abroad had (procedural) advantages and due process safeguards were provided. Moreover, people doing – legal or illegal – business abroad may be expected to have acquired sufficient knowledge of the legal system of the State where they are active (“when in Rome, do as the Romans do”), raising little sympathy in extradition proceedings if they knowingly commit crimes at the seat of their business and flee home.

However, many lawyers and judges would defend the nationality exception even today based on a less controversial – or chauvinistic – argument, namely the considerable expansion of extraterritorial jurisdiction during the past decades. Due to the far-reaching powers assumed by certain States in this regard,7 situations are increasingly common in which an individual becomes criminally liable before the courts of a foreign State – even without leaving the territory of his State of nationality and without having the slightest idea that his act might render him criminally responsible in a foreign jurisdiction. In most cases, such individuals are not completely innocent under the domestic legal system either. Nevertheless, the inherent unfairness of such situations (arising out of the lack of knowledge, but often associated with an inequality in terms of sentences and different standards of legal protection) tends to invoke the sympathies of national judges. Accordingly, they often consider the nationality exception to provide reasonable and necessary safeguards at least in the context of foreign requests for extradition of nationals for overt acts committed within the national territory, especially if domestic courts have concurrent jurisdiction.8

While the status of the nationality exception is still unsettled in customary international law9 and its moral and practical utility remains debated, most extradition treaties at least permit the contracting parties to refuse handing over their own nationals.10

State practice is far from uniform. Civil law legal systems traditionally resort to this measure to protect their nationals. To compensate for any negative effects, these States commonly provide for jurisdiction over crimes committed by their nationals abroad. In contrast, in common law systems the primary basis of jurisdiction is territoriality. Hence, they generally do not establish jurisdiction over extraterritorial acts of their nationals, confine it to serious offenses or impose a dual criminality requirement. To facilitate justice, they usually permit the extradition of nationals.11 Due to these fundamental differences of approach, the non-extradition of nationals often leads to disputes between States.

It has, however, been shown that increased cooperation and trust between States in the field of the investigation and prosecution of crime can lead to decreased reliance on the nationality exception.12 Due the similarity of values and its long shared history, it was predicted by many that Europe would be one of the first regions where the nationality exception were to be abolished. Rightly so, it seems. In late 2001, European States agreed significantly to circumscribe their sovereign right to invoke the nationality of the accused or convicted person as a basis for refusing surrender under the Framework Decision on the European Arrest Warrant.13 Based on the restriction of the broad discretion of States under this traditional exception in the EAW, the EU was praised for having established a system in which nationality plays a very limited role. The Framework Decision was even heralded as a victory, signifying the decline of the nationality exception.14

Yet, States that traditionally do not extradite their nationals and are now expected to accommodate their obligations under the EAW may still face unexpected or unacknowledged constitutional problems, specifically in the context of surrender requests concerning their nationals. Moreover, a closer look reveals that the Framework Decision and domestic implementing acts provide a few opportunities for States wishing to do so to protect their nationals from foreign prosecution and/or imprisonment abroad.

The present study attempts to provide a balanced evaluation of the Framework Decision’s achievements relating to the nationality exception. While acknowledging its novelty and its positive contribution to ending the century-long reliance on the nationality exception, the authors draw attention to problems associated with the Framework Decision and implementing acts. They consequently warn against too much optimism and against too readily assuming that the adoption of the EAW signals a watershed in the history of the nationality exception.

The analysis of relevant EAW dynamics requires reference to the dual criminality requirement, another common exception to extradition recognized in treaties. Under this rule,

extradition is only granted in respect of a deed which is a crime according to the law of the state which is asked to extradite, as well as of the state which demands extradition – although not necessarily a crime of the same name in each, so long as there is a substantial similarity between the offences in each state.15

This rule is frequently applied also to transfer of prisoners or enforcement of foreign judgments, requiring criminality in both the prosecuting and the enforcing State. Its origins should be sought in the fact that many, if not all, States consider it as against their ordre public to extradite persons or carry out sentences passed abroad for acts that are not locally punishable.

We can distinguish two major forms of this requirement. The quotation describes what we might call simple dual criminality, requiring criminality but no minimum sentence.16 In the other type, the provision specifies beyond the mere criminality of the acts in both States the additional requirement that they should be punishable with a certain minimal maximum sentence in one or both States.17 This article will refer to such provisions as requiring qualified dual criminality.

As will be demonstrated, problems related to the limitation of the nationality exception may become elevated due to the EAW’s (partial) removal of this requirement.

  1. Recent Developments Relating to the Nationality Exception in European Extradition Law: Slow But Certain Erosion

    1. From European Convention on Extradition to Convention on Extradition between Member States of the European Union

The history of the non-extradition of nationals in Europe dates back to at least the 18-19th century.18 The dominance of civil law systems resulted in the nationality exception being a recognized rule, sanctified by constitutional provisions, national statutes and extradition agreements. Even treaties concluded with common law States – not opposed to extraditing their nationals – usually left the freedom of the parties not to extradite their citizens unaffected. The predominance of the nationality exception in the recent history of European extradition is well documented in multilateral European extradition agreements.

The European Convention on Extradition concluded within the Council of Europe in 1957 confirms the right of Contracting Parties to refuse extradition of their nationals.19 In addition, the parties to the Convention are given the freedom to attach a declaration defining the meaning of the term “nationals” for the purposes of the application of the convention.20 Of the present 25 members of the European Union, the following 18 have attached such declarations to the Convention: Austria, Cyprus, Germany, Denmark, Estonia, Finland, France, Greece, Hungary, Ireland, Lithuania, Luxembourg, Latvia, the Netherlands, Poland, Portugal, Spain, Sweden.21 While the exact definition contained in each instrument is not relevant for the purposes of this study, the number of declarations is indicative of the extensive reliance on the non-extradition of nationals in Europe.

To compensate for the negative effects of this rule, a subsequent provision imposes a requirement on the party that refuses extradition

at the request of the requesting Party [to] submit the case to its competent authorities in order that proceedings may be taken if they are considered appropriate. […]22

No solution is, however, suggested for the eventuality that the requested State does not have jurisdiction over the act concerned. Admittedly, however, the likelihood that such cases would occur is reduced by the requirement of qualified dual criminality, specifying that the convention applies only to offences “punishable under the laws of the requesting Party and of the requested Party by deprivation of liberty or under a detention order for a maximum period of at least one year or by a more sever penalty.”23

The Benelux Treaty on Extradition and Mutual Assistance in Criminal Matters24 signed in 1962 similarly prevents the extradition of nationals of the contracting parties. It is even more categorical than the Council of Europe convention: it lays down an obligation not to extradite.25 Moreover, it fails to provide for a corresponding obligation to prosecute domestically. Nonetheless, the Convention imposes a qualified dual criminality requirement.26

The willingness of EU members to do away with the nationality exception appears still to have been limited at the time of the conclusion of the Convention implementing the Schengen Agreement in 1990. This instrument does not explicitly refer to the non-extradition of nationals. However, Article 66 provides that

1. If the extradition of a wanted person is not obviously prohibited under the laws of the requested Contracting Party, that Contracting Party may authorize extradition without formal extradition proceedings, provided that the wanted person agrees thereto in a statement made before a member of the judiciary after being examined by the latter and informed of his right to formal extradition proceedings.[…]27

Due to the wide acceptance of the non-extradition of nationals, it is safe to assume that the prohibition under domestic laws referred to herein was intended to cover, inter alia, the nationality exception.

Conversely, this article, or any other rules contained in the Convention, do not oblige the Parties to extradite their nationals with or without formal proceedings and irrespective of the consent of the wanted person. Moreover, the it does not refer to a duty to prosecute if extradition is denied nor does it contain any general provisions on dual criminality.28 However, these may be implied from the reference to the European Convention on Extradition and the Benelux Treaty.29 Accordingly, whilst the Schengen Acquis encourages contracting parties to ease extradition requirements, it does not affect their relevant rights and obligations.30

In contrast, the Convention on Extradition between Member States of the European Union drafted in 1996 ambitiously attempted to reverse the traditional regime relating to the nationality exception. Article 7 declares that

  1. Extradition may not be refused on the ground that the person claimed is a national of the requested Member State within the meaning of Article 6 of the European Convention on Extradition.

  2. When giving the notification referred to in Article 18(2) [of having completed the ratification procedure], any Member State may declare that it will not grant extradition of its nationals or will authorize it only under certain specified conditions.


In other words, this EU Convention aimed at rendering the nationality exception an exception in European extradition. This intention is well illustrated in the explanatory report attached to the Council Act on the convention:

Paragraph 1 establishes the principle that extradition may not be refused on the ground that the person claimed is a national of the requested Member State within the meaning of Article 6 of the European Convention on Extradition. This is an important step towards removing one of the traditional bars to extradition among Member States. The reasons for this change, as already emphasized in the general part of the explanatory report, are to be found in the shared values, common legal traditions and the mutual confidence in the proper functioning of the criminal justice systems of the Member States of the European Union.[…]

Paragraph 2 provides for the possibility to derogate from the general principle laid down in paragraph 1. The reservation possibility in this regard was considered appropriate since the prohibition of extradition of nationals is established in constitutional law or in national laws which are based on long-standing legal traditions, the change of which appears to be a complex matter. However, paragraph 3 provides for a system which will encourage a review of the reservations made.32

Indeed, the Council envisaged the possibility of reservations as a temporary measure from the outset. The Convention even provides that such reservations are valid for a period of five years but are renewable for successive periods of five years.33

Fifteen of the twenty-five current EU Member States have ratified the Convention. Of these, thirteen attached declarations34 in accordance with Article 7(2). The following six States have submitted an unconditional declaration, categorically refusing the extradition of their nationals: Austria, Denmark,35 Germany, Greece, Latvia,36 Luxembourg. Others (Belgium, Finland, Ireland, Netherlands, Portugal, Spain, Sweden) declared that they would subject extradition of their nationals to certain conditions (e.g. guarantees of return to serve sentence, dual criminality, reciprocity, terrorist offences and organized crime, residence in the requesting State, etc.).

Ratification of this Convention took at least four years in most cases, providing ample time for even a constitutional change in most countries. However, no such amendments have taken place. It may thus be doubted whether the States in question had any intention at all upon ratifying the Convention to change their domestic legislation concerning non-extradition of nationals in accordance with Article 7. This fact together with the large number of declarations in force eight years after its adoption indicate the failure of the regime of the Convention in this respect.

Similarly to the above instruments, the Convention requires qualified dual criminality. In this case, the requirement is formulated in an asymmetrical form, requiring a maximum punishment of at least 12 months deprivation of liberty in the requesting State but only 6 months under the law of the requested State.37 In the absence of an obligation under the Convention to prosecute domestically if extradition (of nationals) is refused, this provision does not improve chances that the offender will be brought to justice. Yet, it at least reduces the potential under the Convention for extradition in cases related to attempts to exercise overly expansive extraterritorial jurisdiction over nationals of another contracting party.

In sum, a review of multilateral European extradition agreements demonstrates a hesitant move away from the nationality exception. Whereas some fail to provide for an obligation to prosecute if the requested State refuses to hand over its nationals, all require qualified dual criminality as a condition of extradition. This requirement improves chances for domestic prosecution and to some extent it eliminates perceptions of unfairness relating to extraterritorial jurisdiction.

    1. Indirect contribution through increased cooperation in related fields

These extradition conventions did not come into existence in a legal vacuum. Simultaneously with their conclusion, legal instruments in other – related – fields were drafted which had an indirect but all the more significant impact on the decline of the nationality exception. These instruments regulated and stimulated cooperation in the fight against (international) crime within the European Union, following up on previous work in the Council of Europe. They specifically address the mutual recognition of foreign judgments, transfer of proceedings and transfer of sentenced persons.38

In 1970, “[c]onsidering that the fight against crime, which [was] becoming increasingly an international problem, call[ed] for the use of modern and effective methods on an international scale”,39 the Council of Europe adopted the European Convention on the International Validity of Criminal Judgments. The Convention provides that

  1. A Contracting State shall be competent in the cases and under the conditions provided for in this Convention to enforce a sanction imposed in another Contracting State which is enforceable in the latter State.

  2. This competence can only be exercised following a request by the other Contracting State.40

One of the situations for which the enforcement of foreign sentences was envisaged is where the State requested to enforce the sentence “is the State of origin of the person sentenced and [it] has declared itself willing to accept responsibility for the enforcement of that sanction.”41 The nationality exception was thus indirectly bolstered. This is not surprising considering the amount of problems caused by the nationality exception, and keeping in mind that a main purpose of the Convention is to promote rehabilitation.42

On the other hand, the Convention required dual criminality43 (i.e. ability) beside mere willingness to enforce the sentence. Moreover, requests could be refused based, inter alia, on the related ground that enforcement would violate fundamental principles of one’s own legal system (ordre public), or that the State would be unable to enforce the sanction.44

Even though, or exactly because, only a limited number of EU members are parties to this Convention45 which entered into force in 1974, the EU adopted its own treaty on the subject in 1991: the Convention between the Member States of the European Communities on the Enforcement of Foreign Criminal Sentences.46 One of the eventualities in which the enforcement of the custodial sentence by another State may be requested under this instrument is where

the sentenced person is in the territory of the administering State and is a national of this State or is permanently resident in its territory.47

Here, too, enforcement is subject to (simple) dual criminality.48

The Convention is not yet in force and is temporarily applicable between the Netherlands and Germany only. It should be noted that Germany has declared upon notification of the completion of the ratification process that it “[would] accept the enforcement of a custodial sentence only on condition that a German court declared the sentence imposed in the sentencing State to be enforceable”.49 It thereby explicitly conditioned execution of a sentence in Germany on its ability to enforce it.

Almost simultaneously with this process, principles relating to transfer of proceedings in criminal matters were laid down in the Council of Europe and later in the European Communities. In 1972 the Council of Europe adopted the European Convention on the Transfer of Proceedings in Criminal Matters.50 In another attempt to ensure justice even in cases of conflicting competence and interests, this instrument provides that

[f]or the purpose of applying this Convention, any Contracting State shall have competence to prosecute under its own criminal law any offence to which the law of another Contracting State is applicable51

and that

[w]hen a person is suspected of having committed an offence under the law of a Contracting State, that State may request another Contracting State to take proceedings in the case and under the conditions provided for in this Convention.52

One of those conditions is simple dual criminality.53

One of the situations in which “[a] Contracting State may request another Contracting State to take proceedings” is “if the suspected person is a national of the requested State or if that State is his State of origin.”54 The Convention thus aims, inter alia, at reducing the impact of the non-extradition of nationals on criminal justice.

While the Convention has been in force since 1978, it has few parties which are members of the European Union.55 This fact may have prompted the European Communities to adopt their own Agreement between the Member States on the Transfer of Proceedings in Criminal Matters in 1990.56 This instrument has not proved to be much more successful than the Council of Europe Convention on the same subject or the previously discussed mutual recognition and enforcement treaties. It still has not entered into force. Yet, its provisions are relevant in the present context and were probably milestones for later EU initiatives for increased cooperation in criminal matters by encouraging flexibility in these areas:

For the purpose of applying this Agreement, the requested State shall have the competence to prosecute under its own law the offences mentioned in the preceding Articles in respect of which a request for proceedings has been made.57

Similarly to the above instruments, the Agreement can be seen as addressing, although indirectly and to a limited extent, the consequences of the nationality exception. It namely provides that

[a]ny Member State having competence under its laws to prosecute an offence may send a request for proceedings to the Member State of which the suspected person is a national, to the Member State where the suspected person currently is or to the Member State in which the suspected person is ordinarily resident.58

The transfer of proceedings is still subject to a simple dual criminality requirement.59 Unfortunately, this Agreement has not attracted general support within the EU.

A third attempt towards increased cooperation in criminal matters and to promote criminal justice was undertaken in the field of the transfer of sentenced persons. In 1983 the Council of Europe adopted the Convention on the Transfer of Sentenced Persons.60 The goals of the Convention are similar to those expressed in the preambles of the previously discussed instruments, namely to achieve greater unity and increased cooperation, as well as to “further the ends of justice and the social rehabilitation of sentenced persons”.61 The Parties to the Convention have agreed to cooperate fully in the transfer of sentenced persons, at the request of either the sentencing or administering State.62 While this particular instrument does not affect the negative consequences of the nationality exception in general,63 nationality plays a significant role: the Convention applies only to nationals of the administering State.64 Another relevant condition of transfer is dual criminality, arguably a qualified one.65 Two EU members (Germany and Portugal) have even attached declarations to the effect that enforcement in these States is subject to the condition that local courts declare the sentence enforceable.66

This particular agreement is widely ratified (by 57 States). States parties include all twenty-five members of the European Union.67

While, accordingly, no separate EC instrument was required in this field, the Communities adopted an Agreement on the Application Among the Member States of the European Communities of the Council of Europe Convention on the Transfer of Sentenced Persons68 in 1987, with the aim of broadening the application of the Convention and improving its operation.69 The Agreement aimed at extending the coverage of the Council of Europe Convention on the same subject to cases where at least one of the parties has not ratified that Convention70 – to this extent it lost significance with the last EU member’s ratification of the Council of Europe convention.

However, the EU Agreement also enlarges the range of persons to which it applies:

For the purpose of applying Article 3(1)(a) of the Convention on Transfer, Each Member State shall regard as its own nationals the nationals of another Member State whose transfer is deemed to be appropriate and in the interest of the persons concerned, taking into account their habitual and lawful residence in its territory.71

This Agreement has not yet been ratified by all States that were EC members at the time of its opening for signature and hence it has not entered into force. Nonetheless, its significance – especially in the context of the EAW – should not be underestimated.

The European Commission stated in its commentary to the 2001 proposal on the EAW Framework Decision that

If the European arrest warrant was issued pursuant to a final judgment, the judicial authority of the executing State may decide that it is preferable for the future social rehabilitation of the person in question to serve his sentence on the spot. […]

The principle must be that the warrant must be executed even if it concerns a national. However, it may be preferable for the requested person (national or permanent resident) to serve his sentence in the State where he was arrested. In that case, the executing State will be able, with the person’s consent, to decide to execute the sentence on its territory rather than executing the warrant.

Technically, for the implementation of this principle, Member States may look for inspiration to the 1983 Convention on the Transfer of Sentenced Persons and the Agreement on the Application, between the Member States of the European Communities, of the Convention of the Council of Europe on the Transfer of Sentenced Persons of 25 May 1987, where they have ratified these instruments.72

In sum, the effects of the nationality exception were – often indirectly – mitigated through the adoption of these Conventions. This was due, inter alia, to envisioning the prosecution or enforcement of offences in the State that refused extradition and to the possibility of transfer of sentenced persons. The impact of some of these developments is clearly observable on the relevant provisions of the Framework Decision.

    1. Final triggers

The European Arrest Warrant was originally drafted in 2001, a mere five years after the conclusion of the Convention on Extradition between Member States of the European Union. During those five years three major developments and events took place which signified or even induced a changed attitude on the nationality exception in Europe.

The first of these milestones was the adoption of the Rome Statute for the International Criminal Court73 in July 1998. During the travaux préparatoires, a considerable amount of attention was paid to civil law jurisdictions’ concern with extraditing their nationals.74 The final outcome was Article 102, which distinguishes surrender to international courts from State to State extradition, thereby establishing the inapplicability of the nationality exception. Admittedly, due to this distinction this provision did not have any direct beneficial effect on international law relating to the non-extradition of nationals. However, the adoption of the Statute induced debates in some States, which did not consider the distinct definitions in Article 102 of the Statute sufficient to ensure legal certainty, about amending (constitutional) provisions on the right of nationals not to be extradited. Once such amendments were decided upon, further exceptions could be added.75

The second major event was the 1999 Tampere European Council meeting. This summit made cooperation in criminal matters a clear priority within the European Union. It called for “enhanced mutual recognition of judicial decisions and judgments and the necessary approximation of legislation”, arguing that this

would facilitate co-operation between authorities and the judicial protection of individual rights. The European Council therefore endorse[d] the principle of mutual recognition which, in its view, should become the cornerstone of judicial co-operation in both civil and criminal matters within the Union.76

In addition, the conclusions add that the Council

considers that the formal extradition procedure should be abolished among the Member States as far as persons are concerned who are fleeing from justice after having been finally sentenced, and replaced by a simple transfer of such persons, in compliance with Article 6 TEU. Consideration should also be given to fast track extradition procedures, without prejudice to the principle of fair trial. The European Council invites the Commission to make proposals on this matter in the light of the Schengen Implementing Agreement.77

Arguably, the work that was initiated or at least intensified hereafter and the results reached in response to these conclusions contributed greatly to the adoption of the European Arrest Warrant in general and to the decline of the nationality exception in particular. Mutual recognition of judgments and transfer of prisoners namely provide valuable and increasingly popular alternatives to extradition. The recent emphasis on these forms of cooperation reduces the importance attributed to extradition, and to the non-extradition of nationals.

The final and most direct trigger of the Framework Decision was, however, added by the September 11, 2001 attacks on the World Trade Center. This tragic event made European leaders recognize the importance of cooperation in fighting international crime ever so clearly, and directly contributed to a speedy agreement on the Framework Decision. In the face of the severity of the crimes experienced by the world, negotiators may have been more prepared to compromise and give up their traditional strict insistence on issues previously held to be of major importance, such as the nationality exception and the dual criminality requirement. The outcome related to these issues is seen by many as a major achievement of the European Arrest Warrant.

    1. EAW: Considerable progress with remnants of the nationality exception

The results of the above processes and events are striking. The Framework Decision constitutes a significant step towards the abolition of the nationality exception. However, it still contains some remnants of this age-old privilege.

Articles 3 and 4 of the EAW deal with “Grounds for mandatory non-execution of the European Arrest Warrant” and “Grounds for optional non-execution of the European Arrest Warrant”, respectively. They are groundbreaking in the history of European multilateral extradition agreements, for these provisions do not recognize what has for centuries been considered the unconditional sovereign right to refuse extradition of one’s own subjects. Admittedly, the EAW still mentions nationality as an optional ground for refusal of execution but this may be invoked only under certain conditions. Article 4(6) specifies that the execution of the European arrest warrant may be refused where a national or resident of the executing State is wanted for the execution of a custodial sentence or detention order, subject to the condition that the executing State undertakes to enforce the sentence domestically.78

The special relation of a State to its nationals is, nonetheless, recognized in another provision relating to “guarantees to be given by the issuing Member State in particular cases”.79 If a request for the surrender of a national is made for the purposes of prosecution in the requesting State, the executing State (State of nationality) may make execution under this title conditional upon guarantees that if sentenced to a custodial sentence the national will be returned to it to serve his or her sentence there.

Enforcement of the sentence in the State of nationality may, however, be problematic. The Framework Decision namely denies the applicability of the dual criminality requirement in the case of the offences listed in Article 2(2). Nonetheless, it appears to allow at least simple (unqualified) dual criminality to be tested and required with regard to the listed crimes if they are not “punishable in the issuing Member State by a custodial sentence or a detention order for a maximum period of at least three years as they are defined by the law of the issuing Member State”.80 Moreover, Article 2(4) preserves the dual criminality requirement with regard to

offences other than those covered by paragraph 2, [in which case] surrender may be subject to the condition that the acts for which the European arrest warrant has been issued constitute an offence under the law of the executing Member State, whatever the constituent elements or however it is described.81

While this provision deals with criminality in the executing State, it is only logical that the acts must constitute an offence in the issuing Member State. Hence the dual criminality condition is established. In addition, the EAW specifies at the outset in Article 2(1) that

[a] European arrest warrant may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months.82

Significantly, however, Article 2(4) does not qualify the level of required criminality of the act in terms of a minimum sanction applicable in the executing State. Moreover, the provision speaks of “offences” rather than “criminal offences” and requires only that the act constitute “an offence under the law of the executing Member State”. Consequently, the EAW may arguably even apply to a traffic offence which is subject only to administrative or pecuniary sanctions in the executing State, provided that the requirement of Article 2(1) is fulfilled.

We can thus conclude that obvious loopholes exist in the EAW due to the inclusion of references to guarantees of return and undertakings of enforcement in the State of nationality in Articles 4(6) and 5(3). The problems created by those loopholes are elevated through the waiver of the dual criminality requirement in relation to most crimes, and the failure to qualify dual criminality by requiring a minimum sentence for the others. This oversight could lead to problems in the following situations:

Member State A receives a European arrest warrant from Member State B concerning X, a national of A. X is wanted for the prosecution of a crime listed in Article 2(2), punishable with a maximum of four years of imprisonment in State B. Hence dual criminality cannot be tested.

Assume that A’s domestic legislation provides guarantees against the extradition of nationals but permits surrender if any resulting sentence may be carried out in State A. Authorities from State B assure State A that if X is sentenced to a custodial sentence, it can be enforced in A. X is subsequently surrendered to B and is sentenced to two years imprisonment.

In accordance with its assurances, B intends to transfer the offender back to A. However, the transfer will not be effectuated if, reading the judgment A’s authorities eventually realize their lack of competence to enforce the sentence due to the fact that the acts which served as a basis of the conviction do not constitute an offence there. Moreover, the Convention on the Transfer of Sentenced Persons, under which such transfer would normally take place also requires dual criminality,83 making this particular transfer impossible. As a result, a dispute is likely to develop between X and States A and/or B or between the two States about transfer and the enforcement of the sentence in the light of their conflicting obligations under the two regimes and B’s assurances.84

In fact, A should have requested more information from State B to be able better to judge the fulfillment of the dual criminality requirement (as well as, e.g., the applicability of statutory limitations). However, B would not be obliged to provide any more details than a (limited) description of the circumstances of the offence(s) (including the time, place and degree of participation) as well as the categorization of the offence under its own legal system and according to the EAW list.85 If State B were unwilling or unable to provide such information, State A would face the choice of denying surrender in violation of the EAW or surrendering X at the potential risk of being unable to enforce the sentence. The latter option may result in the violation of X’s (constitutional) rights against extradition if he is subsequently not returned by B due to A’s inability to enforce the sentence.86

In the second hypothetical case, the same Member State A receives an arrest warrant from Member State B concerning Y, a national of A, for the purposes of the enforcement of a previously handed down custodial sentence of five years, for a crime listed in Article 2(2) of the EAW. Again, dual criminality is not required and its absence is no excuse. However, upon examination of the case the authorities of State A find that the acts do not constitute an offence under its laws. State A thus cannot enforce the sentence due to the lack of criminality of the acts in its jurisdiction. At the same time, it cannot execute the warrant concerning Y due, for instance, to its constitutional guarantees against the extradition/surrender of nationals (which may also cover extradition and surrender for the purposes of enforcing a sentence). Either way, it will be violating one of its obligations.

It appears that, while the intention may have been right, the ambitions of the drafters were too high and/or the drafting process too speedy. Consequently, the end result contains some loopholes which are created due to the wish to abolish two of the traditional exceptions in extradition (nationality and dual criminality) at the same time. The potential problems seem to be the result of a lack of concern given to realities in the existing domestic legislation and longstanding traditions of the Member States. They appear further aggravated by a lack of familiarity with the Convention on the Transfer of Sentenced Persons,87 the keystone of the regime of surrendering nationals without violating their constitutional rights. As Member States are obliged to implement the Framework Decision, the ball is thrown to domestic legislatures to find appropriate solutions, if any.88

Clearly, despite these potential problems, its treatment of the nationality exception still makes the EAW a unique document inasmuch as it applies even to civil law countries traditionally strictly opposed to extradition of their nationals. It eradicates this privilege in certain cases and considerably limits its scope in others. However, the above examples suggest that it may be too naive to assume that the Framework Decision will do away with all controversies concerning extradition of nationals.

  1. A Look Beyond the Surface
    1. The achievements of the EAW at the national level

In spite of the (limited) exceptions and loopholes, the Framework Decision is undeniably a milestone in the history of the extradition of nationals. Whereas it is probably better seen as a culmination of the above described legal developments and of political pressures than as constituting a single pioneering step, its practical significance should not be underestimated. The Framework Decision signals the changing attitude of European States to the admissibility of the nationality exception within Europe. In addition, it proves that the link between mutual trust and the decline of the nationality exception is more than a purely theoretical construction. Beside the adoption of the Framework Decision, the efforts in the European Union to increase mutual trust between the Member States through cooperation and harmonization of the domestic legal systems have in fact already resulted in constitutional and other legal amendments at the national level.

One of the most notable examples of constitutional change is that of Germany. Previously, the German constitution provided that

[n]o German may be extradited to a foreign country. Persons persecuted for political reasons enjoy the right of asylum.89

This provision was amended in 2000, primarily to accommodate Germany’s obligations under the ICC Statute.90 However, due to notable developments in the EU in the field of judicial cooperation,91 an opening was made for exceptions within Europe as well. As a result, the provision now reads as follows:

No German may be extradited to a foreign country. A different regulation to cover extradition to a Member State of the European Union or to an international court of law may be laid down by law, provided that constitutional principles are observed.92

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