The Extradition Procedure between Romania and the U.S.A Critical Remarks

• Author: Ion Rusu
• Position: Jurist. IPJ Vrancea
• Pages: 1-13

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1. Introductive considerations

The positive effects mentioned in the international cooperation plan in all the fields at an international level have inevitably led to increased transnational criminality. The growing danger towards public order, state security, determined by the unprecedented growth of transnational crime, the necessity to prevent and combat this scourge more efficiently at a better organized international level, has determined the adoption of regional and global international instruments, meant to unify the states' efforts in this direction. In this context, the international judicial cooperation in criminal matters has a mandatory character, as it represents the only solution that can fully contribute to the diminution of criminality at an international level.

In literature it has been stated that at a general level, the international judicial cooperation in criminal matter represents the form of cooperation that aims at complex activities through which the world states' governments act together, with the purpose of reducing criminality and increasing the citizens' safety, offering mutual help for specific activities such as: extradition, delivery based on an European arrest warrant, procedure transfer, recognition and execution of judicialPage 2decisions, transfer of convicted persons, judicial assistance or other similar forms or norms established through internal laws, agreements, conventions or reciprocity.¹

The extradition is the most important form of international judicial cooperation in criminal matters, known and applied in different ways since ancient times. In the past century's doctrine it is mentioned that "the oldest extradition law is the Belgian law in 1833. The Belgian model inspired successive extradition laws in the United States, in 1848, England in 1870, Holland in 1875, Luxemburg in 1875, Argentina in 1885, Congo in 1886, Japan in 1887, Switzerland in 1892, Peru 1906, Norway in 1907, Canada in 1907, Brazil in 1911, Sweden in 1913, Finland in 1927, Germany in 1929".²

Consequent to its European aspirations and according to the model of the above mentioned states, Romania has ratified the first extradition conventions in the second part of the 19^th century and the beginning of the last century with the following states: Serbia in 1863, Belgium and Italy in 1880, England in 1893, Luxemburg in 1910, United States, Hungary and Bulgaria in 1924, Czechoslovakia in 1925, Austria in 1926, Poland in 1930, Yugoslavia in 1933 and numerous reciprocity agreements with France. Now Romania has signed numerous extradition conventions with several states from all the continents, ratifying other specific international instruments as well, for international judicial cooperation in criminal matters.

Along the years, specialists have stated that the extradition "as a form of international judicial assistance, is the act through which on the territory of a state there is a refugee represented by a prosecuted or convicted person, and that state resends that specific person to be trialed or to execute the conviction at the request of the interested state"³ or it is "one of the international judicial cooperation in criminal matter that can be defined as the procedure through which a sovereign state (the solicited state) accepts to deliver to another state (the solicitor state) a person located on its territory, who is prosecuted or convicted for a certain crime or is being searched for the execution of a conviction in the solicitor state".⁴

Considering the points of view comprised in the doctrine, as well as the provisions stated in the international instruments and internal normative acts, we can asses that the extradition is the most important form of international judicial cooperation in criminal matter and consists in the procedure through which a state accepts to deliver to another state (at its request) a person located in its territory, who is prosecuted for committing a crime or execution of a punishment, by the solicitor state.

2. The extradition Convention between Romania and the United States of America⁵

The first bilateral documents through which Romania and the United States have established judicial cooperation relation in extradition matters is the Extradition Convention between Romania and the United States of America signed in Bucharest on July 23 1924.

According to the provision in article 1, the Romanian government and the U.S government "commit themselves to mutually resend the persons who, accused or that have been proven guilty of one of the crimes mentioned in article II of the present treaty, committed in the jurisdiction of one of the High Contracting Parties, will search for asylum or will be found on the territory of the other Party".Page 3

The same article states that "the extradition will be possible only when if the crime, according to the laws of the state in which the person will be found, would be justified in case the deed would have been committed there". We state that this condition actually aims at the need for a double incrimination for a crime committed by the person for whom the extradition is solicited.

In article 2 of the convention the crimes and groups of crimes for which the extradition is solicited are stated, among which we mention: crime, attempted crime, rape, kidnapping or detention of women of minors, for immoral purposes, destruction or illegal blocking of railways, endangering the life of a person, sea crimes, defalcation or fraudulent evasion, public documents forgery, minor kidnapping etc.

Extradition procedure

According to the convention's provisions, the extradition request will be prepared by the diplomatic agents of the two countries. The diplomatic agents can mention in the request the release of a preliminary arrest warrant or a preventive one against the solicited person. The prosecuted person will be facing a magistrate or a judge who will examine the evidence and they will be able to issue an arrest warrant. If the evidence that have been examined is considered to be sufficient to be a basis for a conviction, the magistrate or the judge will communicate to the competent executive authority that the necessary warrant for the extradition of the person can be issued. In case of emergency, the arrest and detention request can be directed straight to the competent magistrate. If in two month time after the arrest the solicitor state will not issue the extradition forms, as well as the guilt evidence, the arrested person will be set free.

Extremely important in the bilateral relations between the two states is the Related Note of the United States of America, no.78 of July 23^rd 1924, in which is stated the assurance that the death penalty "will not be applied to criminals delivered by Romania to the United States, based on none of the crimes listed in the mentioned document and that this assurance has effectively be part and be mentioned in the documents ratifications".⁶

Conclusions

The extradition convention between Romania and the United States of America represents a normative international bilateral act of great importance and it summarizes, on one hand the evolution in time of Romanian criminal law, and on the other side, the recognition by the United States of America of the entire Romanian judicial system from the beginning of the last century.

The conventions provisions are similar to the ones signed by Romania with different European states at the end of the 19^thcentury and the beginning of the last century. At a closer examination of the norms comprised in the convention we can see that they present some similar elements with the provisions of other conventions of this kind, signed in the past years. We can also see that, similar to the general line adopted by the bilateral convention from that time, the extradition of its own citizens is not allowed, regardless of the nature or the gravity of the crime for which it is solicited.

Death penalty is stated in the United States' legislation in that period of time, and the convention states that it will not be applied to citizens handed over by Romania to the contractor part. It is very important to remember the great number of crimes that can act as an object for extradition between the two states, being the most serious as well.Page 4

3. Extradition based on the Extradition Treaty signed in 2007

Currently, the extradition between Romania and the United States is completed based on the Extradition Treaty between Romania and the United States, signed in Bucharest on September 10, 2007, ratified through law no.111/2008.⁷

We have to mention the fact that until the ratification of this international instrument between the two states was made based on the extradition convention completed and signed in Bucharest on July 23^rd 1924 and the additional Convention signed in Bucharest on November 10^th 1936.

3.1.1. Crimes that cause the extradition

Extradition between the two states will be made only if the crime for which the delivery of the person is solicited is stated in the legislation of both states, with a freedom privative penalty bigger than one year. In case the extradition request has as its object the execution by the convicted person of a liberty privative punishment applied for a crime that offers room for the extradition, the remained punishment has...