The evolution of European Union criminal law (1957-2012)

arguments against extradition of nationals: a subject ought not to be withdrawn from his
natural judges; the state owed its citizens the protection of its laws; it is impossible to
place entire confidence in the justice of a foreign country; and it is a serious
disadvantage for a person to be tried in a foreign language and where he is separated
from his friend and resources and from those who bear witness of his previous life and
character. 716 The main European legal instrument regarding extradition was, until
recently, also along these lines. The European Convention on Extradition of 1957, for
example, conferred the right to the contracting parties to refuse extradition of their
nationals. 717 In fact, at least 18 of the EU Member States had attached such a declaration
to the Convention. 718 Other European arrangements also abided by the principle, such as
the Benelux Treaty on Extradition and Mutual Assistance in Criminal Matters signed in
1962 which laid down an obligation not to extradite. 719
A first sign that the use of this exception was beginning to subside in Europe was seen in
the Convention implementing the Schengen Agreement in 1990 which no longer
prohibited directly the extradition of nationals as long as the person concerned would
agree to it and the laws of the requested State did not prohibit it. 720 This shift was later
on confirmed by the 1996 Convention on Extradition between the Member States of the
European Union which attempted to make the principle of non extradition of nationals
the exception to the normal regime, whilst in fact still allowing it if a Member State
would declare a wish to continue not to extradite its own nationals. 721 Regardless of the
proposed flexible framework, six Member States still attached declarations firmly
tended to prefer personal jurisdiction over territorial one). For a detailed account of English and
Wales law see M. Hirst, Jurisdiction and the Ambit of the Criminal Law (Oxford: OUP, 2003).
716 Royal Commission on Extradition, Report of the Commissioners, C.2039, 1878, in M.
Plachta, “(Non) Extradition of Nationals”, supra note 713, 86-87. See also, for example, M.
Gavouneli, Functional Jurisdiction of the Law of the Sea (Leiden: Martinus Nijhoff Publishers,
2007)13-14; and R. Donner, The Regulation of nationality in international law, 2nd ed. (New
York: Transnational Publishers, 1994).
717 Article 6 (1) (c) of the Council of Europe European Convention on Extradition, ETS No24, 13
December 1957.
718 The 18 countries were: Austria, Cyprus, Germany, Denmark, Estonia, Finland, France,
Greece, Hungary, Ireland, Lithuania, Luxembourg, Latvia, The Netherlands, Poland, Portugal,
Spain and Sweden in Z. Deen-Racsmany and R. Blekxtoon, “The Decline of the Nationality
Exception”, supra note 714, 323.
719 Article 5(1), Benelux Treaty on Extradition and Mutual Assistance in Criminal Matters, 616
UNTS 120, 27 June 1067.
720 Article 66 of the Convention applying the Schengen Agreement of 14 June 1985, supra note
59.
721 Article 7, Council Act drawing up the Convention relating to extradition between the Member
States of the European Union, 27 September 1996, OJ C 313 [1996]. The Convention never
entered into force mostly due to French and Italian failures to ratify (although it was
provisionally applied between some Member States) and it was superseded by the Framework
Decision on the EAW, see Article 31(1)(d) of the Framework Decision 2002/584/JHA, note 383.
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