-5- CDL-AD(2006)009 12. Extradition is a formal procedure whereby an individual who is suspected to have committed a criminal offence and is held by one State is transferred to another State for trial or, if the suspect has already been tried and found guilty, to serve his or her sentence. 13. Extradition is a process to which both international and national law apply. While extradition treaties may provide for the transfer of criminal suspects or sentenced persons between States, domestic law determines under what conditions and according to which procedure the person concerned is to be surrendered in accordance with such treaties. Extradition legislation varies significantly among the different European countries, notably as concerns the incorporation of treaties into national law, procedural guarantees, especially the respective role of the executive and the judiciary in the extradition process, and the proof (and assurances) required for extradition. 14. In Council of Europe member States, extradition laws must take into consideration, or be interpreted in conformity with constitutional provisions guaranteeing human rights and international human rights treaties and humanitarian law. 15. The 1957 European Convention on Extradition3 requires, like most bilateral extradition treaties nowadays, respect for the principles of ne bis in idem and speciality. It also forbids extradition to a country where the death penalty would be carried out. The same is true if the extraditing State has “substantial grounds for believing that a request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion, or that that person’s position may be prejudiced for any of these reasons”. In addition, the nulla poena principle has to be respected.4 16. The 1977 European Convention on the Suppression of Terrorism5 was adopted with a view to eliminating or restricting the possibility for the requested State of invoking the political nature of an offence in order to oppose an extradition request in respect of terrorist acts. Under this Convention, for extradition purposes, certain specified offences shall never be regarded as “political” (Article 1) and other specified offences may not be regarded as such (Article 2), notwithstanding their political content or motivation. There is no obligation, and even a prohibition to extradite, however, if the requested State has substantial grounds for believing that the request for extradition has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion or that the position of the person whose extradition is requested may be prejudiced for any of these reasons. 3 ETS no. 24. The European Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States simplifies and speeds up the procedure of extradition between EU member States, by requiring each national judicial authority (the executing judicial authority) to recognise, ipso facto, and with a minimum of formalities, requests for the surrender of a person made by the judicial authority of another Member State (the issuing judicial authority). As of 1 July 2004, it has replaced for the EU member States the 1957 European Extradition Convention and the 1978 European Convention on the suppression of terrorism as regards extradition; the agreement of 26 May 1989 between 12 Member States on simplifying the transmission of extradition requests; the 1995 Convention on the simplified extradition procedure ; the 1996 Convention on extradition and the relevant provisions of the Schengen agreement. 4 Article 7 ECHR. 5 ETS no. 90.