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

efusing the extradition of their own nationals (Austria, Denmark, Germany, Greece
Luxembourg and Latvia) whilst seven others (Belgium, Finland, Ireland, the
Netherlands, Portugal, Spain and Sweden) declared they would allow extradition of
nationals under certain conditions only (dual criminality, guarantees of return,
reciprocity, among others). 722
The abolition of the principle of non-extradition of nationals seem thus to break the
initial link between the national citizen and the State, embodying a new connection
between the national citizens and the EU. In fact, in an increasingly more volatile and
integrationist legal Europe - and world - the reasons for refusal to extradite nationals
became partially out-dated and the long lasting connection between the State and its own
nationals began to subside and be questioned by other notions such as residence or even
EU citizenship. The new paradigm ultimately assumes that an individual can stand trial
before any European court and not just before those of her State of nationality. The EU
space becomes an area of justice where EU nationals are no longer granted the
protection of the borders of their country of nationality or residence and are potentially
equally accountable to any European court regardless of their geographical location,
nationality or place of residence. 723 This reshaped relationship between citizens and the
State led to negative reactions in national legal orders and received strong criticisms
from national constitutional courts, as will be seen below.
Protection by the State, traditionally granted for individuals, was further shaken with the
non-inclusion in the Framework Decision of the possible violation of human rights in
the requesting State as an exception for non-surrender. Refusal on a human rights basis
was common even in countries with liberal traditions of extradition (for example States
which would extradite their nationals such as those with a common law tradition). 724
722 More details in Z. Deen-Racsmany and R. Blekxtoon, “The Decline of the Nationality
Exception”, note 714, 326.
723 Nonetheless, as it will be seen below, the Framework Decision leaves some options of retreat
relating to the exercise of territorial jurisdiction and to the serving of the sentence. Article 4(7)
allows a Member State to refuse surrender in case the offence was committed in whole or in part
in its own territory; whereas Article 5(3) allows Member States to surrender under the condition
of return of the person in order to serve a resulting custodial sentence or detention order in the
State of origin.
724 See, for example, M. Plachta, “(Non) Extradition of Nationals”, note 713, 86-87. It is argued
by some that human rights do not necessarily always operate as a barrier to refusal as different
human rights can have different importance or violations can vary in their severity. For a short
summary of different positions in the literature and of the EcHR decisions on the matter see M.
Mackarel, “Human Rights as a Barrier to Surrender”, in N. Keijzer and E. van Siiedregt (eds) The
European Arrest Warrant in Practice (The Netherlands: T.M.C. Asser Press, 2009) 140-143.
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