Extradition Between European and African Countries: Overcoming the Challenges

Although EU states use the European Arrest Warrant (EAW) for the purpose of surrendering a person who is accused of committing an offence or who has been convicted of an offence, they use extradition when dealing with countries outside the EU. However, they use surrender when dealing with the International Criminal Court (ICC). Thus, extradition is one of the ways in which African and European countries (especially EU members) are cooperating in the fight against crime. Case law from courts in some African and European countries and from the European Court of Human Rights, the Human Rights Committee and the Committee against Torture, shows that extraditions between African and European countries have been delayed or hampered by allegations of human rights violations in the requesting state. These allegations have focused on mainly two rights: the right to a fair trial and the right to freedom from torture. The European Court of Human Rights has held that the extradition of a person should not go ahead if his or her trial was or will amount to a flagrant denial of justice or where there is a real risk of being subjected to torture. Although African courts and international human rights bodies have also held that extradition should not go ahead where there is a real risk that the person will be subjected to torture or where his/her trial will be unfair, they have not adopted the ‘flagrant denial of justice’ test. The case law also shows that some people have challenged the legal basis for their extradition. This article highlights this case law and suggests ways in which some of the challenges associated with extradition could be overcome. The article demonstrates that courts in some African and European countries have considered the nature of extradition enquiries. In some countries, such as Kenya, courts have held that extradition enquiries are criminal proceedings. However, in the United Kingdom, courts have held that extradition enquiries are criminal proceedings of a special type. There is consensus that extradition enquiries are not civil proceedings.

European Arrest Warrants and Minimum Standards for Trials in absentia – Blind Trust vs. Transnational Direct Effect?

The right of the accused person to be present at the trial and defend himself in person forms an essential part of the right to a fair trial. In this regard, the minimum standard enshrined in Art. 6 ECHR has been further developed by the minimum rules on procedural rights established by the EU legislator. According to a recent judgment of the Union’s Court of Justice, the Framework Decision on the European Arrest Warrant still allows the executing state to surrender a person convicted in absentia even if the EU minimum standard is not met. This paper will argue that common minimum standards have repercussions on cross-border cooperation based on mutual recognition and may emerge as a ground for refusal.

The Accountability of Multinational Companies for Human Rights Violations, Regulatory Trends and New Punitive Approaches Across Europe

This article investigates the emergence of new regulatory trends in the context of human rights accountability - traditionally characterised by soft law and non-binding guidelines -, where in recent times mandatory non-financial disclosure laws have started to impose on multinational companies new legal obligations complemented by sanctions of a different nature and intensity. By comparing three relevant pieces of legislation in the European panorama, this contribution addresses the reasons why also criminal law scholars should pay attention to the evolution of such regulatory framework, as the prospect of punitive mechanisms aimed at holding large companies accountable for human rights violations in their global operations could become, to some extent, less remote.

The Victim – a Great Actor in a Minor Role? – A Comparative Perspective

Recently, the role of the victim in criminal proceedings became more significant. An observation was made that the legal interests of the victim are much more severely affected by the crime than the collective legal interests in the form of public or social order. However, the differences in the rights the victim is vested with differ substantively between particular countries. The authors present the position of the victim in American, English and French law. The solutions provided for in these systems are confronted with legal regulations adopted in Poland, i.e. the home country of the authors. It shows, surprisingly, that the role of the victim in criminal proceedings has evolved somehow independently of the implementation of the concept of restitution. On the one hand, there are legal systems in which the criminal court may order the offender to pay compensation for the damage caused, but the role of the victim still remains marginal. On the other hand, there are systems in which the victim is not only entitled to receive restitution, but he or she also has significant powers which enable him or her to play an active role in the criminal proceedings.

Business and Human Rights – Recent Trends in Germany

There is an undeniable, growing trend in the current Corporate Social Responsibility (CSR) discussions: the responsibility of corporations to abide by and to protect human rights. This discussion includes potential criminal liability for corporations as well as their management for human rights violations. This article will survey the legal status quo of corporate responsibility in the context of human rights protection in Germany. It will then outline two drafts of legislation: a first draft leaked to the press in February 2019 that did not result in further legislative action, and a second draft recently leaked to the public that included key points for such a legislation to become the new German Human Rights Supply Chain Due Diligence Law.

The “Years of Lead” in Italy and Reward Models as Counterterrorism Measures in Europe

The subject is addressed by focusing on two aspects: i) the identification of constant political-criminal models in emergency legislation, with particular reference to the fight against terrorism; ii) diachronic and synchronic dissemination of such constants in other legal experiences, both of the past and contemporary with Italian legislation of the 1970s/1980s. The concluding paragraph will offer some brief remarks regarding the relevance of such tools today in the fight against international terrorism in Europe, taking into special consideration one of the aforesaid constants, namely, reward-based legislation aimed at so-called pentiti.

Book Review: “The Right to Counsel and the Protection of Attorney-Client Privilege in Criminal Proceedings. A Comparative View”

To sum up briefly, the book entitled “The Right to Counsel and the Protection of Attorney-Client Privilege in Criminal Proceedings. A Comparative View” should be a must-read for both researchers interested in the current issues relating to the right of counsel in criminal proceedings and practitioners of the judiciary. The research is elaborated on in an interesting and transparent manner. Also inspiring are the conclusions concerning the need for further action on the attorney-client privilege, especially in the sphere of “protection of work-product and electronic files and communications” (p. 71). It would be of scientific value to continue research in this area because of the need to create appropriate foundations for further approximation of the legal orders of EU Member States. From the perspective of the transfer of evidence between Member States, it would be helpful to work out common minimum standards for safeguarding the attorney-client privilege.