How extradition works: the basis, the deadlines and the grounds for refusal

Extradition is the surrender of a person by one state to another for prosecution or for the enforcement of a sentence already passed. It is a matter between two states, and the decision is taken by the state on whose territory the person is present.

The first thing to separate out: INTERPOL does not extradite anyone. It has no such power, no police force of its own and no authority to oblige a country to detain anybody. Its role here is a channel of communication, and that is written into the treaty text: Article 16(3) of the European Convention on Extradition names INTERPOL as one of the means by which a request for provisional arrest may be sent, alongside diplomatic channels, post and telegraph.

The second is to distinguish extradition from neighbouring procedures that everyday speech runs together. Deportation and removal are administrative measures taken by a state against a foreign national; they require no request from another country and carry none of the guarantees extradition proceedings provide. Transferring sentenced persons to serve their sentence at home is a separate mechanism again, and one that operates with the prisoner’s consent.

The difference is not terminological. Extradition proceedings involve a court, adversarial argument and a long list of grounds for refusal. Under deportation a person can be put on a plane to the same country faster and with fewer safeguards — which is why trying to resolve matters through immigration proceedings is sometimes more dangerous than defending the extradition case openly.

An obligation to surrender does not arise by itself. It arises from a treaty — bilateral or multilateral — or from reciprocity, where there is no treaty but the state is willing to oblige in the expectation of a return favour.

For Europe the principal instrument is the European Convention on Extradition, signed in Paris on 13 December 1957. Its Article 1 is framed as an undertaking: the Contracting Parties undertake to surrender to each other all persons against whom the competent authorities of the requesting Party are proceeding, or who are wanted for the carrying out of a sentence or detention order.

But the same sentence carries the qualification that everything else turns on: subject to the provisions and conditions laid down in this Convention. There are many such conditions, and in the right circumstances almost every one of them becomes a ground for refusal.

Hence a conclusion worth absorbing before panicking. The existence of a treaty between two countries does not mean surrender will happen. It means only that a request will be considered under an established procedure rather than ignored.

The first and most frequent obstacle. Article 2(1) of the Convention permits extradition only for offences punishable under the laws of both parties — requesting and requested — by deprivation of liberty for a maximum period of at least one year, or by a more severe penalty.

Where a sentence has already been passed, a different threshold applies: the punishment awarded must have been for at least four months.

The rationale is simple: a country does not surrender a person for conduct that is not an offence under its own law, or is punished markedly more lightly. Its courts will not apply force in the service of another state’s criminal policy.

The practical consequence often decides the case. A significant share of the charges faced by people from Russia and the CIS either has no counterpart in European law or has one with a different threshold: some currency and customs offences, registration and licensing offences, certain forms of tax claim, and situations where a commercial dispute between two parties has been dressed as a crime.

Article 2(2) adds flexibility in the other direction: if a request covers several offences and some fail the threshold, the requested party may extradite for those as well. One qualifying charge can therefore pull the rest along with it, so the whole package has to be examined, not only the most serious count.

Article 3(1) of the Convention: extradition shall not be granted if the offence for which it is requested is regarded by the requested party as a political offence or as an offence connected with a political offence. It is the receiving country that decides this, not the one that sent the request.

But the provision that matters most in modern cases is Article 3(2), and it is the one most often overlooked. The same rule applies if the requested party has substantial grounds for believing that a request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing a person on account of race, religion, nationality or political opinion — or that the person’s position may be prejudiced for any of those reasons.

Read that again, because it describes the typical case. The charge may be entirely economic — fraud, embezzlement, tax evasion — and still fall under Article 3(2) if a political motive behind it is established. The formal classification of the offence does not save the request.

It is proved with the same material as before INTERPOL’s Commission: a chronology tied to dates; decisions of other states’ courts; asylum granted; documents linking the case to the person’s public position or to a commercial conflict.

The exception has a limit. Article 3(3) provides expressly that the taking or attempted taking of the life of a Head of State or a member of their family is not to be deemed a political offence for the purposes of the Convention. Article 3(4) preserves obligations under other multilateral treaties — above all the counter-terrorism instruments, where the political exception does not apply.

Article 4 is short and, in current circumstances, very important: extradition for offences under military law which are not offences under ordinary criminal law is excluded from the application of the Convention. Not may be refused — excluded.

This is where the answer about draft evasion and failure to report for mobilisation lies. Such conduct is military in character, has no ordinary-law counterpart in most legal systems, and therefore falls outside the Convention. That is not a guarantee against detention, but it is the absence of any legal basis for surrender.

Tax, customs and currency offences were nearly closed off in the original text: Article 5 allowed extradition only where the parties had specifically so decided in respect of a given offence or category.

The Second Additional Protocol replaced that article with a milder rule: extradition for fiscal offences takes place if the offence, under the law of the requested party, corresponds to an offence of the same nature. And refusal is not permitted merely because the requested country does not levy the same tax or duty or has no equivalent currency regulation.

The difference between the two versions matters when building a position, and what has to be checked is not only the Convention text but which protocols a particular country has ratified and with what reservations. Reservations here are not a formality: they frequently decide the outcome.

Article 6(1)(a) gives a contracting party the right to refuse extradition of its nationals. Note the wording: a right, not a duty. Some states have written an absolute ban into their constitutions; others surrender their nationals under certain conditions.

The moment at which nationality is assessed is set out separately: it is determined as at the time of the decision concerning extradition (Article 6(1)(c)). And if the person is recognised as a national of the requested country between that decision and the date set for surrender, that country may still invoke its right to refuse.

The refusal has a flip side that is usually left unsaid. Article 6(2): if the requested party does not extradite its national, it shall at the requesting party’s request submit the case to its own competent authorities so that proceedings may be taken if considered appropriate. The files, information and exhibits are transmitted free of charge.

In other words, nationality does not end the prosecution; it relocates it. Instead of a trial in the requesting state there may be a trial where the person lives — under local rules, with a local lawyer and local standards of proof. For many that is an incomparably better outcome, but it is not the outcome case closed.

The Convention contains several further grounds, each of which stands on its own in a suitable case.

Place of commission. The requested party may refuse if, under its law, the offence was committed wholly or partly on its territory (Article 7(1)). Where the offence was committed outside the requesting party’s territory, refusal is possible only if the requested party’s law does not allow prosecution for the same category of offence committed abroad (Article 7(2)).

Its own proceedings. If the requested party’s authorities are themselves proceeding against the person for the same offences, it may refuse (Article 8).

Ne bis in idem. If final judgment has already been passed by the requested party’s competent authorities on the same offences, extradition shall not be granted — refusal is mandatory. If those authorities decided not to institute or to terminate proceedings, refusal is possible but not required (Article 9).

Lapse of time. Extradition shall not be granted where the person has become immune from prosecution or punishment by lapse of time according to the law of either the requesting or the requested party (Article 10). The word either is decisive: it is enough for the period to have expired under one of the two legal systems.

Capital punishment. If the offence is punishable by death under the requesting party’s law, and the death penalty is not provided for or not normally carried out in the requested country, extradition may be refused unless the requesting party gives assurances the requested party considers sufficient that the penalty will not be carried out (Article 11).

Conflicting requests. Where several states request extradition at once, the decision is made having regard to all the circumstances, especially the relative seriousness and place of commission of the offences, the dates of the requests, the person’s nationality and the possibility of subsequent extradition to another state (Article 17).

The strongest ground is not in the 1957 Convention at all. It came from another body of law and in modern cases is often decisive.

Article 3 of the European Convention on Human Rights is stated in a single line: no one shall be subjected to torture or to inhuman or degrading treatment or punishment. In Soering v the United Kingdom (1989) the European Court of Human Rights held for the first time that extradition itself may engage the responsibility of the surrendering state under that article — where substantial grounds have been shown for believing that the person would face a real risk of treatment contrary to Article 3 in the receiving country.

The burden is allocated as follows: the applicant must adduce evidence capable of proving that there are substantial grounds for believing that, if the measure were implemented, they would face a real risk; once such evidence is adduced, it falls to the government to dispel the doubts raised.

The UN Convention against Torture goes further and states the prohibition outright. Article 3(1): no State Party shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. Article 3(2) requires the competent authorities to take into account all relevant considerations including, where applicable, the existence in that State of a consistent pattern of gross, flagrant or mass violations of human rights.

The 1951 Refugee Convention adds a bar of its own. Article 33(1) prohibits expelling or returning a refugee in any manner whatsoever to the frontiers of territories where their life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion. Article 33(2) creates an exception for those whom there are reasonable grounds to regard as a danger to the security of the host country, or who, having been convicted by final judgment of a particularly serious crime, constitute a danger to the community.

From this comes a practice worth knowing in advance: a proven risk of torture or of a manifestly unfair trial outweighs both the existence of a treaty and the formal impeccability of the request.

The request is made in writing and communicated through the diplomatic channel unless the countries have agreed on another route (Article 12(1)).

It must be supported by a strictly defined set of documents (Article 12(2)): the original or an authenticated copy of the conviction and sentence, or of an immediately enforceable detention order, or of a warrant of arrest issued under the procedure laid down in the requesting party’s law; a statement of the offences for which extradition is sought, setting out as accurately as possible the time and place of commission, their legal description and the relevant legal provisions; and copies of those provisions, together with as accurate a description of the person as possible and any information helping to establish identity and nationality.

If the information provided is insufficient to decide, the requested party asks for supplementary information and may set a time limit for receiving it (Article 13). Months are lost at this stage in practice, and this is where poorly prepared requests fall apart.

From there the procedure follows the national law of the country of residence, and the details differ. The general shape is almost everywhere the same: arrest, judicial review of lawfulness and merits, a decision on admissibility of surrender, then a decision by the executive — typically the minister of justice or the prosecutor general — and a route of appeal.

A refusal must be reasoned: Article 18(2) requires reasons to be given for any complete or partial rejection. That is not a formality — a reasoned refusal becomes a document that then works in other proceedings, including a challenge to the data held by INTERPOL.

This is the fastest part of the procedure and the most dangerous for anyone unprepared for it.

In cases of urgency the requesting party’s competent authorities may request the provisional arrest of the person sought; the requested party decides the matter under its own law (Article 16(1)). The request must state that one of the documents mentioned in Article 12 exists and that an extradition request will follow, and must say for what offence extradition will be sought, when and where it was committed, with a description of the person (Article 16(2)).

Paragraph 3 of the same article lists the channels: the diplomatic channel, direct by post or telegraph, through the International Criminal Police Organisation — INTERPOL — or by any other means affording evidence in writing. This is the precise point at which a Red Notice turns into an actual detention: not because INTERPOL holds any power, but because the Convention recognises it as a channel for transmitting the request.

And the key figures. Provisional arrest may be terminated if, within 18 days of the arrest, the requested party has not received the extradition request and the Article 12 documents. In any event it shall not exceed 40 days from the date of arrest (Article 16(4)). Provisional release at any time is not excluded, but the requested party takes such measures as it considers necessary to prevent escape.

Release does not prejudice re-arrest and extradition if a request arrives later (Article 16(5)). Walking free when the period expires does not mean the matter is closed.

There is a mirror-image deadline at the end of the procedure. If extradition is granted but the person is not taken over on the appointed date, they may be released after 15 days and must in any case be released after 30; the requested party may then refuse to extradite for the same offence (Article 18(4)).

The practical conclusion: the first hours and days after arrest weigh more than the months that follow. Everything fits inside those 18 and 40 days — choosing a lawyer, raising the Article 3 risk, applying for release.

One of the most underestimated rules, because it operates after surrender and is rarely thought about in advance.

Article 14(1): a person who has been extradited shall not be proceeded against, sentenced or detained with a view to carrying out a sentence for any offence committed before surrender other than that for which they were extradited, nor otherwise restricted in their personal freedom.

There are two exceptions. First, the consent of the surrendering party — and that consent is given where the offence in question would itself be extraditable under the Convention. Second, where the person had an opportunity to leave the territory to which they were surrendered and did not do so within 45 days of final discharge, or returned there after leaving.

Re-characterisation is dealt with separately. If the description of the offence charged is altered during the proceedings, the person may be proceeded against or sentenced only in so far as the offence under its new description is shown by its constituent elements to be one that would allow extradition (Article 14(3)).

The prohibition extends to onward surrender: an extradited person may not be handed to a third state for offences committed before surrender without the consent of the party that surrendered them (Article 15).

Why this matters before surrender. The rule of speciality turns the scope of the request into a legal ceiling: the more narrowly the offences are framed in the request, the less room the requesting state has afterwards. So the argument is not only about whether to surrender at all, but about precisely what for.

Extradition is not the automatic execution of another country’s request but an adversarial procedure with a long list of grounds for refusal, half of which are tested against the law of the country of residence rather than the requesting state.

It makes sense to work along two lines at once. First, the national defence against surrender: dual criminality, limitation periods, political motive, Article 3 risk, nationality, place of commission. Second, challenging the data in INTERPOL’s system, because a notice keeps generating a risk of detention in third countries whatever happens in the particular extradition case.

The two reinforce each other. A reasoned refusal of extradition — and under Article 18(2) it must be reasoned — becomes independent confirmation for INTERPOL’s Commission that something about the prosecution does not hold. Conversely, a Commission decision deleting the data removes the channel the requesting country had been using.

And the most practical point of all. What happens in the first 18 and 40 days after an arrest shapes the outcome far more than anything done six months later. It is worth preparing in advance — knowing which country you are in, what its law says, whom to call and what exactly to state in the first twenty-four hours.

INTERPOL extradites people. It does not and cannot: it is not a state, has no police force and no power to oblige any country to detain anyone. The Convention gives it the role of a communication channel (Article 16(3)) — nothing more.

A Red Notice means you will be extradited. A notice is neither an arrest warrant nor an extradition request. The request is a separate document with a mandatory set of annexes under Article 12, and without it provisional arrest cannot last beyond 40 days.

There is no treaty between the countries, so nothing can happen. Not quite. Extradition on the basis of reciprocity is possible, and beyond it there are deportation, refusal of entry and removal — mechanisms with fewer safeguards than extradition proceedings.

I am a citizen, they cannot surrender me. Article 6(1)(a) confers a right to refuse, not a duty, and the same state may under Article 6(2) submit the case to its own authorities for prosecution where the person lives.

The limitation period has expired at home, so it is over. Article 10 requires the law of both countries to be checked, and abroad the period may not have run out.

The main thing is to prove my innocence. Extradition proceedings generally do not examine guilt on the merits: the court reviews whether surrender is permissible, not whether the charge is well founded. The position is built on grounds for refusal, not on a review of the evidence.