Français

Extradition is the procedure by which one State, the requested State, agrees to surrender a person who is on its territory to another State, the requesting State, which seeks him in order to prosecute him for the commission of an offence or in order to carry out a sentence already pronounced for the commission of an offence.

Under French law, the procedure and the conditions for an extradition are governed by articles 696 et seq. of the Code of Criminal Procedure. However, when an international convention has been signed between France and another State, this convention applies first. These international conventions are more and more numerous. Their purpose is to limit the discretionary power of States to consent or not to an extradition request: the execution of the extradition request becomes an obligation when the conditions set by the convention are met.

In addition, within the European Union, States have introduced a simplified extradition procedure: the European arrest warrant (articles 695-11 et seq. of the Code of Criminal Procedure).

The procedure and conditions detailed below constitute French common law and must therefore be respected when international conventions or the European arrest warrant are not applicable or incomplete.

I. Matters for which an extradition request may be issued
II. Extradition procedure when France is the requested State
III. Means to oppose the extradition request
IV. Extradition procedure when France is the requesting State

I. Matters for which an extradition request may be issued

Extradition may concern any person suspected or convicted of being the author, co-perpetrator or accomplice of an offence or its attempt.

The matters which may give rise to the issuing of an extradition request are:

• Matters considered as crimes under the law of the requesting State
• Matters punishable, under the law of the requesting State, by a prison sentence of two years or more, or, in the case of a convicted person, when the sentence imposed by the court is of two months’ imprisonment or more

These matters must also be punishable, under French law, by a similar sentence: this is the “double incrimination” requirement. Extradition can only be granted by the French government on condition that French law also punishes the acts for which the request is based by an imprisonment sentence.

Furthermore, extradition can only be granted if the offence giving rise to the request has been committed:

• On the territory of the requesting State
• Outside the territory of the requesting State by a national of that State
• Outside the territory of the requesting State by a foreigner, when the offence is one of those for which French law authorises prosecution in France, even though it was committed by a foreigner abroad

II. Extradition procedure when France is the requested State

1. The request for provisional arrest by the requesting State

The submission and execution of an extradition request can be a lengthy process, due to:

• The time required to gather the necessary documents needed for the request
• The use of diplomatic channels, which inevitably takes time

Nevertheless, it is important to prevent the wanted person from taking advantage of these delays to flee.

Consequently, French law provides that in urgent cases, and upon the direct request of the requesting State, the Public Prosecutor with territorial jurisdiction can order the provisional arrest of the person sought for the purpose of extradition.

The person under provisional arrest is released if, within thirty days of his arrest, the French government has not received the documents required for the extradition. If the documents are subsequently received by the French government, the procedure can resume.

2. Formulation of the extradition request through diplomatic channels

All requests for extradition must be addressed to the French government through diplomatic channels, and must contain the necessary documents, namely:

• A decision recording a conviction
• An act of criminal procedure formally ordering the referral of the accused person before the criminal Court
• an arrest warrant or an act of the same force

After verification of the documents, the extradition request is forwarded along with the case file by the Minister of Foreign Affairs to the Minister of Justice. Once the latter has checked that the request is in order, it is sent to the Public Prosecutor with territorial jurisdiction.

3. The person’s appearance before the Public Prosecutor

Any person arrested following an extradition request must be brought before the Public Prosecutor with territorial jurisdiction within 48 hours.

The Public Prosecutor verifies the person’s identity and informs him of:

• The existence and content of the extradition request
• His right to be assisted by a lawyer
• His faculty to consent to his extradition, and the legal consequences resulting from this consent
• His faculty waive the “speciality rule”, i.e. the rule according to which the person surrendered to the requesting State cannot be prosecuted, sentenced or detained for a matter that happened prior to the surrender and other than that which motivated the extradition

The person concerned by the extradition request can be placed under judicial supervision, under house arrest or detained if his representation at all stages of the proceedings is not sufficiently guaranteed. He can request his release at any time, before the Investigating Chamber.

4. The person’s appearance before the Investigating Chamber

The requested person must then appear before the Investigating Chamber within:

• Five working days from the date of his presentation to the Public Prosecutor when he declared to the latter that he consents to his extradition
• Ten working days if he declared that he does not consent to his extradition

The hearing is usually public.

After being informed of the legal consequences of his choice, the person must again declare whether he consents to his extradition or not. This consent is not required for the execution of the extradition, but once again it helps to expedite the process.

If the person consents to his extradition and the legal conditions for such extradition are met, the Investigating Chamber will allow it within seven days of hearing, unless additional information has been requested. This decision is not subject to appeal.

On the other hand, if the requested person does not consent to his extradition, the Investigating Chamber must pronounce its decision regarding the extradition within one month of the hearing, unless additional information has been requested. The decision is necessarily unfavourable if the Court considers that the legal conditions for an extradition are not met or that there is an obvious error. The decision can be appealed, on the basis of an error of form only.

5. The government’s execution of the extradition request

If the Investigating Chamber’s decision is unfavourable to the extradition and is definitive, extradition cannot be granted. The person, if not detained for another cause, must be released.

In other cases, the decision of the Investigating Chamber in favour of the extradition is not binding on the government, which remains free not to grant the extradition: the execution of the extradition remains a faculty for the government, not an obligation.

If the government decides to grant the extradition, the extradition is authorised by a decree issued by the Prime Minister on the basis of a report from the Minister of Justice. There is no statutory time limit for this decree to be issued once the Investigating Chamber has given its favourable opinion.

The requested person must be delivered to the agents of the requesting State within one month of the notification of the Prime Minister’s decree to said State. Should this timeframe not be respected, the person claimed is automatically released, except in cases of “force majeure”, and can no longer be claimed for the same reason.

Appeals against the Prime Minister’s decree can be lodged within one month.

6. Competing extradition requests

If extradition is requested concurrently by several States for a single offence, it is preferably granted to the State against whose interests the offence was directed, or to the State on whose territory it was committed.

If the competing requests are for different offences, the request that must take priority is chosen with regards to all factual circumstances and, in particular, the gravity and the place of the offence, the date of the requests, and the undertaking which one of the requesting States has made to carry out a re-extradition.

Moreover, if the person claimed from the French government is already being prosecuted or has already been convicted in France for a different offence, his surrender will only take place after the end of the proceedings and, in the event of conviction, after the sentence has been served. However, the person claimed can be sent temporarily to appear before the Courts of the requesting state, on condition that he will be returned to France as soon as the foreign Courts has made its decision.

7. The effects of extradition

Extradition is granted only on condition that the person being extradited is neither prosecuted nor convicted for an offence other than the one for which extradition was requested.

This rule of speciality does not apply when the requested person waives it or when the French government gives its consent.

III- Means to oppose the extradition request

Extradition is not automatically granted: the requested person can oppose it.

The means to oppose the extradition request are set out in article 696-4 of the French Code of Criminal Procedure.

1. The person claimed has French nationality

Article 696-4, 1° of the Code of Criminal Procedure and article 696-2 of the same Code lay down the principle according to which only foreign nationals may be extradited.

This principle is also reflected in all the extradition conventions signed by France (beware, that this is not the case for the European Arrest Warrant).

The French nationality of the requested person is an obstacle to extradition only if this nationality was held by the person concerned at the time of the acts for which extradition is requested. Subsequent acquisition of French nationality has no effect on the extradition request.

However, this does not mean that the French national whose extradition is requested will benefit from immunity: the French courts will be able to prosecute him, even if the acts took place abroad, under their active personal jurisdiction, provided for in article 113-6 of the French Criminal Code.

2. The offence is political in nature

Extradition is not granted when the crime or offence is of a political nature, or when it is clear from circumstances that extradition is requested for a political purpose.

This exclusion is mainly justified by the desire of States not to interfere in the political affairs of other States. Nevertheless, the French Conseil d’Etat considers that beyond a certain level of seriousness, the offence ceases to be political, which explains why terrorism-related offences are not in principle considered political offences.

It is up to the requested State to appreciate the political nature of an offence, or the political purpose of an extradition request, and it is not bound by the definition of the offence given by the law of the requesting State.

Example of a political offence: the disclosure of information classified as a national defence secret.

3. The offence was committed on French territory

Extradition is not granted when the offense has been committed on French territory.

This notion is broadly defined. If an offense has been committed abroad by a foreigner, extradition can be granted, but if the act is indivisible from an offence legally punishable in France, extradition will be refused. This is the case, for example, when the offence of receiving stolen goods is indivisible from the offence of fraudulent embezzlement.

4. The offence, although committed outside the country, was prosecuted and judged in France

Extradition may not be granted when the person claimed has been convicted in France for the same offence, or when the French authorities have decided not to prosecute or to terminate proceedings in respect of those acts.

5. The limitation period for the prosecution or for the penalty has expired

Extradition is not granted if the limitation period for the prosecution or for the penalty has expired according to the law of either the requesting or the requested State.

The limitation period of the prosecution is assessed at the date of the extradition request, while the limitation period of the penalty is assessed at the date of the arrest of the person claimed.

It is up to the Investigating Chamber to check, if necessary ex officio, i.e. without this being raised by a party, whether the limitation period is expired according to the legislation of the requesting State and of the requested State. In order to do so, it must determine whether acts performed by the judicial authorities of the requesting State constitute acts interrupting the limitation period under French law.

Furthermore, it is not possible to grant the extradition of an individual prosecuted for acts that have been amnestied in the requesting State.

6. The act is punishable under the law of the requesting State by a penalty or security measure incompatible with French public order

Extradition will be refused when there is a risk of punishment that is contrary to French public order.

For example, extradition to a requesting State which applies the death penalty is subject to the condition that France receives guarantees that this penalty will not be sought or enforced.

Therefore, the decree granting extradition to an individual facing the death penalty in the United States, under the applicable criminal law, does not infringe the provisions of the European Convention on Human Rights, since the French government has obtained guarantees from the American government that the death penalty will not be sought or enforced.

In addition to the risk of the death penalty, other sanctions considered to be against public order are likely to prevent extradition. This is the case for the amputation penalty, or more generally the risk of mistreatment. Nevertheless, the requested State can decide to extradite despite this risk, when the guarantees offered by the requesting State seem sufficient.

7. The requested person would be tried, in the requesting State, by a Court that does not provide fundamental procedural guarantees and protection for the rights of the defence

Extradition can be refused if the requested person would be tried, in the requesting State, by a Court that does not provide fundamental procedural guarantees and protection for the rights of the defence

However, the French Supreme Court has ruled that the Investigating Chamber cannot refuse on this basis without having previously ordered additional information from the requesting State to ascertain whether, in this particular case, the requested person would benefit from fundamental procedural guarantees and protection of the rights of defence (relying solely on reports from the Council of Europe concerning Albania is therefore insufficient).

8. The offence constitutes a military offence

If the offence constitutes a military offence, i.e. an act that does not constitute an offence under ordinary law, extradition will be refused by France.

However, extradition remains possible for offences committed by military personnel, such as rape.

Therefore, extradition can be refused for one or more of the reasons listed in article 696-4 of the Code of Criminal Procedure.

However, to avoid impunity, French law is applicable to any offence punishable by at least five years’ imprisonment committed outside of the French territory by a foreigner whose extradition has been refused because the act for which extradition was requested is punishable by a penalty or a security measure incompatible with French public order or because the person claimed would have been prosecuted in the requesting State by a court which does not provide fundamental procedural guarantees and protection of the rights of defence, or because the act in question is a political offence (article 113-8-2 of the French Penal Code).

IV- Extradition procedure when France is the requesting State

The Code of Criminal Procedure does not regulate extradition requests by France: as the procedure is to be carried out mainly abroad, France has no jurisdiction to regulate it. Nevertheless, the procedure is i) preceded by a French phase of preparation and presentation of the request, and ii) followed by another French phase after the surrender of the person claimed.

1. Formulation of the extradition request

The Public Prosecutor with jurisdiction must collect the documents required to submit the extradition request. These documents are identified by the law of the requested State. The file thus constituted is transmitted to the Prosecutor General and then to the Ministry of Justice.

The Minister of Justice forwards the request to the Ministry of Foreign Affairs. It is then the responsibility of the Minister of Foreign Affairs to transmit the request to the French Embassy in the requested State, in order for it to be communicated to the Minister of Foreign Affairs of the requested State by the French official accredited to that State.

2. The invalidity of the extradition in the event of non-compliance with the law

The extradition obtained by the French government is void if it does not comply with the conditions set by the French Code of Criminal Procedure. In particular, extradition must be carried out in compliance with the conditions relating to the nature of the offence or its punishment, and with the rules prohibiting extradition when, for example, the offence is of a political nature.

Immediately after the imprisonment of the extradited person, the Public Prosecutor informs him that he has the right:

• To request that the extradition be declared void
• To be assisted by a lawyer

The request presented by the extradited person must be justified and addressed, within ten days of the discussion with the Prosecutor general:

• To the registry of the trial court or the Investigating Chamber
• The head of the prison when the applicant is detained

If extradition is cancelled, the extradited person, if not claimed by the requested State, is released.

Your criminal defense with Me Lois Pamela LESOT

Are you (or someone close to you) the subject of an extradition request?
Consult a lawyer: Maître Lois Pamela LESOT – 06.52.02.54.42 – lesot@loispamelalesot.com

The firm regularly provides assistance and defense for individuals sought in the context of an extradition request, as well as in the context of a European Arrest Warrant.

Date de l’article : 2 juillet 2025 | Par Lois Pamela LESOT