1/1/1900
Extradition is a form of international judicial cooperation in criminal matters, consisting in the procedure by which a sovereign state )state) agrees to surrender to another State (the requesting state) a person within its territory and who is being prosecuted or sent to court for a criminal offence or is wanted for execution of a sentence in the requesting State. Extradition has the purpose to avoid circumvention of the criminal liability of persons who have committed a crime in one state and refuge on the territory of another state.
Extradition procedure, as a form of international cooperation, is based on the rule of international law. In the absence of international conventions, the judicial cooperation can be done by virtue of international comittee , at the request sent through diplomatic channels by the requesting State and the written assurance of reciprocity from the competent authority of that State. Lack of reciprocity does not preclude the act on a request for international judicial assistance in criminal matters in specific situations provided by law.
In Romania, extradition is regulated by the Constitution, the Criminal Code and the Law no. 302/2004 regarding international judicial cooperation, as amended and supplemented.
CONDITIONS FOR EXTRADITION FROM ROMANIA
1. Conditions referring to the persons subject to extradition
Regarding the persons who may be extradited from Romania, the Law 302/2004 provides that persons who are prosecuted or sent to trial for a criminal offense, or are wanted for the execution of a sentence or a detention in the respective state can be extradited from Romania, according to this law, at the request of a foreign state,
The Law 3201/2004 provides the categories of persons who are exempt from extradition. In this sense, the law expressely stipulates that the following persons cannot be extradited from Romania:
a) Romanian citizens, unless there are fulfilled all the conditions provided by law;
b) the persons granted asylum in Romania;
c) foreign persons who have immunity of jurisdiction in Romania, under the conditions and limits set by international conventions or through other international agreements;
d) foreign persons summoned abroad for hearing as parties, witnesses or experts before the requesting Romanian judicial authority, within the immunities conferred by international convention.
Extradition of any other foreign person may be refused or delayed, if its granting is likely to have particularly serious consequences for the respective person, especially because of his age or health status.
Regarding the extradition of the Romanian citizens, the law stipulates that they can be extradited from Romania acording to the international conventions to which Romania is a party and on the basis of reciprocity, only if it is fulfilled at least one of the following conditions:
a) in order to be carried out the criminal prosecution and trial, if the requesting State gives an assurance considered sufficient that when sentencing to a custodial sentence by a final court decision, the extradited person will be transferred in Romania in order to execute the penalty;
b) the person subject to extradition has his domicile on the territory of the requesting state, on the date of the request for extradition;
c) the person subject to extradition has the citizenship of the requesting state;
d) the person subject to extradition committed the criminal offence on the territory of or against a national of a state which is a Member of the European Union, if the requesting state is a member of the European Union.
2. Conditions referring to the offence
Extradition shall be granted only if it is fulfilled the condition of double incrimination of the offence committed by the person whose extradition is requested.
Extradition may be granted only if the offence for which the person whose extradition is requested was convicted or sentenced is provided as a criminal offence according to the law of the requesting state and also according to the Romanian law.
Notwithstanding the above legal provisions, extradition may be granted even if the offence is not provided by the Romanian law, if the offense is excluded for the requirement of double incrimination by an international convention to which Romania is a party.
The differences between legal qualification and the name given to the same offeces by the laws of both states is irrelevant, if by an international convention or failing that, through a mutual declaration, it is not provided otherwise.
With respect to tax offenses, the law states that in terms of taxes, duties, customs and exchange, extradition shall be granted under the provisions of applicable international agreement, which correspond to the facts which represent criminal offences of similar nature, according to the Romanian state law,. Extradition cannot be refused on the grounds that Romanian law did not impose the same kind of tax or duties or does not provide the same type of regulations with respect to taxes, duties, customs or exchange, as the law of the requesting state.
3 .Conditions referring to the penalty
Regarding the severity of the penalty, extradition is granted by Romania to prosecution or trial, only for offences which under both the laws of the requesting State and the Romanian law, are subject to a custodial sentence of more than two years, and for the execution of a criminal sanction only if it is of more than one year.
Regarding the capital punishment, the law states that if the offense for which extradition is requested is subject to capital punishment by the law of the requesting State, extradition may be granted unless the respective State gives such assurance that the capital punishment will not be executed.
4. Conditions relating to competence
In the case of criminal offenses committed within a State other than the applicant state, the extradition may be granted when the Romanian law provides competence for the criminal proceedings to the Romanian judicial authorities for the same offences, committed outside the Romanian territory, or when the requesting state proves that the third State on whose territory the crime was committed, shall not request the extradition for the respective offence.
Extradition shall not be granted if, according to both Romanian law and the law of the requesting State, the criminal proceedings may be initiated only on complaint of the injured person and that person opposes to the extradition.
5. Conditions relating to procedure
The extradition request, made in writing by the competent authority of the Requesting State, and accompanied by the supporting documents as provided by the law, shall be addressesd to the Romanian Ministry of Justice. If the request is addressed through diplomatic channels, it shall immediately be forwarded to the Ministry of Justice. Another way might be agreed by direct agreement between the requesting state and the Romanian state.
In the Romanian legal system, taking into consideration the imperative provisions of Art. 19 paragraph 4 of the Constitution, that the extradition is decided upon by the court, the role of Ministry of Justice is subject to the constitutional framework and it consists of:
- Regular international examination (verification of the compliance of the request with applicable treaty) performed prior to referral to judicial authorities, for extradition from Romania (passive extradition, when Romania is the requesting state);
-Enforcement, together with the Ministry of Interior, of the final decision of extradition, the approval for the transit.
In all cases, however, the mechanism provided by Law. 302/2004, to comply with the Constitution, is constructed such that the final decision is the decision of the court, not only for passive extradition (from Romania), but also for active extradition (respectively if extradition requests are made by Romania).
Romania will not grant extradition in cases where the person subject to extradition could be tried in the requesting State by a court that does not provide the fundamental guarantees of procedure and protection of the rights of defense or by a national tribunal set up specifically for that case, or if extradition is requested for the execution of a sentence pronounced by that court.
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