English

Extradition is the procedure by which one State, the requested State, agrees to surrender a person located on its territory to another State, the requesting State, which is seeking that person in order to prosecute them for the commission of a crime or an offense, or to enforce a sentence already imposed for such a crime or offense.

Under French law, the procedure and conditions for 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 a third State, it takes precedence. Such conventions are increasingly numerous. Their purpose is to limit the discretionary power of States to grant or refuse an extradition request: extradition becomes mandatory once the conditions set out in the applicable convention are met.

Moreover, within the European Union, Member States have established an accelerated extradition procedure: the European Arrest Warrant (Articles 695-11 et seq. of the Code of Criminal Procedure).

The procedure and conditions detailed below constitute the general French law and must therefore be complied with when international conventions or the European Arrest Warrant are not applicable or are incomplete.

I. Acts that may give rise to the issuance of an extradition request
II. The extradition procedure when France is the requested State
III. The legal grounds for opposing the extradition of a requested person
IV. The extradition procedure when France is the requesting State

I. Acts that may give rise to the issuance of an extradition request

Extradition may concern any person suspected or convicted as a principal offender, co-perpetrator, or accomplice to an offense, or to an attempted offense.

The acts that may give rise to extradition are:

• Acts punishable by criminal penalties under the law of the requesting State
• Acts punishable by correctional penalties under the law of the requesting State, where the maximum term of imprisonment incurred is equal to or greater than two years, or, in the case of a convicted person, where the sentence imposed by the court of the requesting State is equal to or greater than two months’ imprisonment

These acts must also be punishable under French law by a criminal or correctional penalty: this is the requirement of dual criminality. Extradition may only be granted by the French government on the condition that French law also punishes the acts forming the basis of the request by a criminal or correctional penalty.

 Moreover, extradition may only be granted if the offense giving rise to the request was committed:

• On the territory of the requesting State by a national of that State or by a foreign national; or
• Outside the territory of the requesting State by a national of that State; or
• Outside the territory of the requesting State and by a person who is not a national of that State, when the offense is among those for which French law allows prosecution in France, even when they have been committed abroad by a foreign national

II. The 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 may be lengthy, particularly due to:

• The time required to gather the documents necessary for the request;
• The formulation of the request through diplomatic channels, an inevitable source of delay.

However, it is necessary to prevent the sought person from taking advantage of these delays to abscond.

Accordingly, French law provides that in cases of urgency, and upon a direct request from the requesting State, the territorially competent Prosecutor General may order the provisional arrest of a person sought for the purposes of extradition.

A person who has been provisionally arrested is released if, within thirty days from the date of their arrest, the French government does not receive the documents required for extradition. If the documents are subsequently received by the French government, the procedure is resumed.

2. The submission of the extradition request through diplomatic channels

Any extradition request is addressed to the French government through diplomatic channels and must be accompanied by the necessary documents, namely:

• A judgment or a conviction decision; or
• A procedural act formally ordering, or automatically effecting, the referral of the person prosecuted to the criminal court; or
• An arrest warrant or a document having the same legal effect

After verification of the documents, the extradition request is transmitted, together with the file, by the Ministry of Foreign Affairs to the Minister of Justice. The latter, after ensuring that the request is in proper form, forwards it to the territorially competent Prosecutor General.

3. Appearance of the person before the Prosecutor General

Any person apprehended following an extradition request must be brought within 48 hours before the territorially competent Prosecutor General.

The Prosecutor General verifies the person’s identity and informs them:

• Of the existence and content of the extradition request
• Of their right to be assisted by a lawyer
• Of their option to consent to or oppose their extradition, and of the legal consequences resulting from such consent
• Of their option to waive the rule of specialty, that is, the rule according to which a person surrendered to the requesting State following an extradition request may not be prosecuted, convicted, or detained for the purpose of enforcing a custodial sentence for any act committed prior to the surrender other than the one that formed the basis of the extradition request

The requested person may be placed under judicial supervision, under house arrest, or—if their appearance at all stages of the proceedings is not sufficiently guaranteed—under extradition detention. They may then request release at any time before the Investigating Chamber.

4. Appearance of the person before the Investigating Chamber

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

• Five working days from the date of their appearance before the Prosecutor General, when they have declared to the latter that they consent to their extradition
• Ten working days when they have declared that they do not consent to their extradition

The hearing is, in principle, public.

After being informed of the legal consequences of their choice, the requested person must again state whether they consent to their extradition or not. Such consent is not required for the execution of extradition, but it once again helps to speed up the procedure.

If the requested person declares that they consent to being extradited and if the legal conditions for extradition are met, the Investigating Chamber records this within seven days from the date of their appearance, unless additional information has been ordered. The decision of the Investigating Chamber is not subject to appeal.

However, if the requested person declares that they do not consent to being extradited, the Investigating Chamber issues a reasoned opinion on the extradition request. It delivers its opinion—unless additional information has been ordered—within one month from the date of the person’s appearance before it. This opinion is unfavorable if the Court considers that the legal conditions are not met or that there is a manifest error. An appeal on points of law to the Court of Cassation is possible against this opinion, but it may only be based on procedural defects.

5. Execution of the extradition request by the government

If the reasoned opinion of the Investigating Chamber is unfavorable to extradition and has become final, extradition cannot be granted. The requested person, if not detained on another ground, is then released.

In other cases, a favorable opinion from the Investigating Chamber is not binding on the government, which remains free not to act upon it: the execution of extradition remains at the government’s discretion.

If the government decides to grant extradition, it is authorized by a decree of the Prime Minister issued upon a report from the Minister of Justice. No time limit is set by law for issuing this decree after the favorable opinion of the Investigating Chamber has been delivered.

The requested person must then be taken into custody by the agents of the requesting State within one month from the notification of the Prime Minister’s decree to that State. Failing this, the requested person is, except in cases of force majeure, automatically released and may no longer be sought for the same grounds.

Appeals against the Prime Minister’s decree may be filed within one month.

6. Competing extradition requests

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

However, if the concurrent requests concern different offenses, all factual circumstances are taken into account in determining priority, in particular the seriousness and location of the offenses, the date of the requests, and any undertaking by one of the requesting States to proceed with re-extradition.

Moreover, if the person sought by the French government is already being prosecuted or has already been convicted in France for a different offense, surrender is carried out only after the proceedings have been completed and, in the event of a conviction, after the sentence has been served. However, the requested person may be temporarily transferred to appear before the courts of the requesting State, on the condition that they will be returned to France as soon as the foreign court has delivered its decision.

7. Effects of extradition

Extradition is granted only on the condition that the extradited person will neither be prosecuted nor convicted for an offense other than the one that gave rise to the extradition and that was committed prior to the surrender.

However, this rule of specialty does not apply when the requested person waives it or when the French government gives its consent.

III. Legal grounds for opposing the extradition of a requested person

Extradition is not automatic: a person sought through an extradition request may oppose it.

The legal grounds for opposing extradition are set out in Article 696-4 of the Code of Criminal Procedure.

1. The requested person is a French national

The principle that only foreign nationals may be subject to extradition is established both by Article 696-4(1) of the Code of Criminal Procedure and by Article 696-2 of the same Code.

This principle is also reflected in all extradition conventions signed by France (note that this is not the case within the framework of the European Arrest Warrant).

The French nationality of the requested person only prevents extradition if it was held by the individual at the time of the acts referred to in the request of the foreign State. Subsequent acquisition of French nationality has no effect on the extradition request.

However, this does not mean that a requested person of French nationality benefits from immunity: French courts may prosecute them, even if the acts were committed abroad, on the basis of their active personal jurisdiction provided for in Article 113-6 of the Criminal Code.

2. The offense is of a political nature

Extradition is not granted when the crime or offense is of a political nature or when the circumstances show that the extradition request is made for a political purpose.

This exclusion is justified in particular by the intention of States not to interfere in the political affairs of another State. However, the Conseil d'État considers that beyond a certain level of seriousness, an offense ceases to be political, which also explains why offenses related to terrorism are, in principle, not regarded as political offenses.

It is for the requested State to assess the political nature of a crime or offense, or the political purpose of an extradition request, and it is not bound in this regard by the classification of the offense under the law of the requesting State.

Example of a political offense: the disclosure of information classified as a national defense secret.

3. The crime or offense was committed on French territory

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

This notion is broadly defined. Thus, if a crime or offense has been committed abroad by a foreign national, extradition may be granted; however, if that act forms an indivisible whole with an offense over which the French courts have lawful jurisdiction, extradition will be refused. This is, for example, the case where acts of handling stolen goods attributed to the individual form an indivisible whole with acts of fraudulent misappropriation.

4. The crime or offense, although committed outside the territory of the Republic, has been prosecuted and finally adjudicated in France

Extradition cannot be granted when the requested person has been finally judged in France for the same acts, or when, in respect of those acts, the French authorities have decided not to initiate proceedings or to discontinue proceedings they had already initiated.

5. The statute of limitations for the prosecution or the sentence has expired

Extradition is not granted if the statute of limitations for the offense or the sentence has expired under the law of either the requesting State or the requested State.

The statute of limitations for prosecution is assessed as of the date of the extradition request, while the statute of limitations for the sentence is assessed as of the date of the arrest of the requested person.

Accordingly, it is for the Investigating Chamber to verify, if necessary of its own motion—that is, even if the issue is not raised by any party—whether the statute of limitations for prosecution or for the sentence has expired under the laws of both the requesting State and the requested State. To do so, it must, among other things, determine whether acts carried out by the judicial authorities of the requesting State constitute acts interrupting the limitation period under French law.

Moreover, extradition cannot be granted for 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 contrary to French public policy

Extradition will be refused when there is a risk of a sanction contrary to French public policy.

With regard to the specific case of the death penalty, French case law provides that extradition to a requesting State that applies the death penalty is subject to the condition that France receives assurances that the sentence will not be carried out.

Thus, a decree granting the extradition of an individual who faces the death penalty in the United States, under the applicable criminal law, does not violate the provisions of the European Convention on Human Rights, provided that the French government has obtained assurances from the U.S. government that the death penalty will neither be imposed nor carried out, and from the local prosecutor that it will not be sought.

Beyond the risk of the death penalty, other sanctions considered contrary to French public policy may also prevent extradition. This is the case, for example, where there is a risk of amputation as a punishment, or more generally a risk of ill-treatment. However, it may happen that the requested State decides to proceed with extradition despite this risk, in light of the guarantees provided by the requesting State.

7. The requested person would be tried in the requesting State by a court that does not ensure fundamental procedural guarantees and the protection of the rights of the defense

By way of example, the Criminal Chamber of the Court of Cassation held that an Investigating Chamber could not refuse extradition on this ground, relying in particular on reports from the Council of Europe concerning Albania, the requesting State, without first ordering additional inquiries to determine whether, in the specific case, the requested person would benefit from fundamental procedural guarantees and the protection of the rights of the defense.

8. The crime or offense constitutes a military offense

If the crime or offense constitutes a military offense, that is, an offense that does not constitute an ordinary law offense, extradition will be refused by France.

However, extradition remains possible for offenses committed by members of the military, such as rape.

Thus, extradition may be refused for one or more of the reasons listed in Article 696-4 of the Code of Criminal Procedure.

However, to prevent this from leading to impunity, French law applies to any crime or offense punishable by at least five years’ imprisonment committed outside the territory of the Republic by a foreign national whose extradition has been refused by the French authorities to the requesting State on the grounds that either the act for which extradition was requested is punishable by a penalty or a security measure contrary to French public policy, or that the requested person would have been tried in that State by a court not ensuring fundamental procedural guarantees and the protection of the rights of the defense, or that the act in question constitutes a political offense (Article 113-8-2 of the Criminal Code).

IV. The extradition procedure when France is the requesting State

The Code of Criminal Procedure does not govern extradition requests made by France: since the procedure is primarily intended to be carried out abroad, France has no jurisdiction to regulate it. However, the process is (i) preceded by a French phase of preparation and submission of the request, and (ii) followed by another French phase after the surrender of the requested person.

1. Drafting of the extradition request

The Public Prosecutor of the territorially competent court, or of the court that issued the conviction, must gather the documents necessary for the submission of the extradition request. These documents are determined by the law of the requested State. The file thus compiled is then transmitted to the Prosecutor General and subsequently to the International Criminal Cooperation Office of the Ministry of Justice.

The Minister of Justice forwards the request to the Ministry of Foreign Affairs. It is then for the Ministry of Foreign Affairs to transmit the request to the French embassy in the requested State so that it may be communicated to the Ministry of Foreign Affairs of the requested State by the French agent accredited to that State.

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

Extradition obtained by the French government is null and void if it has taken place outside the conditions provided for by the French Code of Criminal Procedure. In particular, extradition must be carried out in accordance with the conditions relating to the nature of the offense or its prosecution, as well as the rules that prohibit extradition when, for example, the offense is of a political nature.

Immediately after the incarceration of the extradited person, the Public Prosecutor informs them that they have the right to:

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

The application for annulment filed by the extradited person must be reasoned and must take the form of a declaration, within ten days from the notification by the Public Prosecutor:

• With the registry of the competent court, that is to say either the trial court or the Investigating Chamber
• To the head of the correctional facility when the applicant is detained

In the event that extradition is annulled, the extradited person, if not sought by the requested State, is released.

Your Criminal Defense with Maître Lois Pamela LESOT

Are you (or one of your relatives) subject to an extradition request?
Consult a lawyer: Loïs Pamela Lesot – 06.52.02.54.42 – lesot@loispamelalesot.com

The firm regularly assists and defends individuals sought under extradition requests, as well as in the context of a European Arrest Warrant.

Article date: June 29, 2023 | By Lois Pamela Lesot