Austria's Extradition Law: Complexities And Complications

Austria has extradition treaties with several countries, including the United States, Australia, Canada, and the European Union. The Austrian Supreme Court has upheld decisions to extradite individuals to the US, such as Ukrainian tycoon Dmytro Firtash, who was indicted by a US grand jury on bribery charges. Austria's extradition regime with other EU member states is governed by the federal law on judicial cooperation in criminal matters, and the country has also entered into bilateral extradition treaties with non-EU countries.

Austria's extradition treaties with other countries

Austria has extradition treaties with several countries, including the United States, Canada, and Australia. The extradition treaty between Austria and the United States, signed in 1998, outlines the obligations and procedures for extraditing individuals between the two countries. It specifies the conditions under which extradition may be granted, such as the requirement for dual criminality and the exclusion of political and military offenses.

Austria, as a member of the European Union, also adheres to the European Arrest Warrant (EAW) system, which facilitates the extradition of criminal suspects among EU member states. The EAW simplifies the extradition process by eliminating the need for diplomatic channels and harmonizing legal tests for extradition.

Additionally, Austria is a signatory to the European Convention on Extradition, which governs extradition requests from and to other members of the Council of Europe. This multilateral treaty includes countries like Russia, Israel, South Africa, and South Korea. The Convention requires double criminality for extradition, generally excluding political, fiscal, or military offenses.

Austria has also established bilateral extradition treaties with non-EU countries, such as Australia, Canada, and the United States. These treaties either establish specific extradition regimes or elaborate on the rights and obligations outlined in multilateral agreements.

For extradition requests from countries that are not party to a multilateral convention or bilateral treaty with Austria, the Austrian Act on Extradition and Judicial Assistance (ARHG) applies. The ARHG sets out key principles, including the protection of Austrian nationals from extradition and the assurance of a fair trial for the individual being extradited.

Austria's extradition of its own citizens

Austria has laws against extraditing its citizens. However, this has not always been the case.

In 1856, an extradition convention was agreed between the United States and Austria-Hungary. This convention stated that neither country was bound to deliver up its own citizens or subjects. However, this convention was only in force until January 1, 1858, and could be terminated with six months' notice.

Austria's current extradition laws are governed by the federal law on judicial cooperation in criminal matters with the member states of the European Union (EU-JZG). Under this law, Austrian citizens must be extradited if their crime is not subject to Austrian jurisdiction. However, Austria also has a number of bilateral extradition treaties with other countries, such as Australia, Canada, and the US.

Austria's Act on Extradition and Judicial Assistance (ARHG) applies to extradition requests from countries that are not party to a multilateral convention or that have not concluded a bilateral treaty. Under the ARHG, Austrian citizens may not be extradited, and it must be ensured that the person receives a fair trial.

Austria's refusal to extradite its own citizens is based on the idea that individuals have a fundamental right to be tried by the judge of their own country. This principle is considered a constitutional principle in some civil law jurisdictions and a legislative principle in others.

However, it is important to note that Austria's extradition laws have evolved over time and may continue to change in the future.

Austria's extradition of EU citizens

Austria's extradition regime with other EU member states is governed by the federal law on judicial cooperation in criminal matters with the member states of the European Union (EU-JZG). This law is based on the European Arrest Warrant (EAW), which allows member states to request the apprehension and extradition of a criminal suspect for criminal prosecution or enforcement of a custodial sentence.

The EAW was designed to increase the efficiency of extraditions within the EU by removing the need for extradition requests to pass through diplomatic channels and harmonising the legal tests for extradition. One notable change is the abolition of the test for double criminality, which previously required that the crime in question was punishable in both countries. Additionally, Austrian citizens must be extradited if their crime is not subject to Austrian jurisdiction.

However, when it comes to extradition requests from non-EU member states, the situation becomes more complex. If the requesting state is a member of the Council of Europe, such as Russia, the extradition regime is governed by the European Convention of Extradition from 13 December 1957 and its additional protocols, if ratified. This convention is also open for signature by non-members of the Council, such as Israel, South Africa, and South Korea.

Under the European Convention of Extradition, extradition is granted for offences punishable under the laws of both countries (double criminality) with a minimum imprisonment of one year. Extradition is generally refused for political, fiscal, or military offences, and parties may refuse to extradite their own nationals.

Austria has also entered into bilateral extradition treaties with non-EU member states, such as Australia, Canada, and the US, which either establish an extradition regime or specify rights and obligations from multilateral treaties. For extradition requests from countries that are not party to a multilateral convention or bilateral treaty, the Austrian Act on Extradition and Judicial Assistance (ARHG) applies. This act stipulates that the person may not be an Austrian national and must be ensured a fair trial.

It is important to note that having permanent residency in Austria as an EU citizen is not sufficient to avoid extradition to a non-EU member state. For example, a German national permanently residing in Austria could be extradited to the US if such a request is made.

Austria's extradition of foreign citizens

Austria has a history of dealing with prominent extradition requests, including Kazakhstan's extradition request of its ex-ambassador for an alleged murder.

The first step in assessing whether extradition from Austria is possible is to identify whether the extradition is being sought by an EU member state. If so, the member state may issue a European Arrest Warrant (EAW) requesting Austria to apprehend and hand over a criminal suspect for criminal prosecution or enforcement of a custodial sentence. The Austrian extradition regime to other EU member states is governed by the federal law on judicial cooperation in criminal matters with the member states of the European Union (EU-JZG).

The EAW was designed to increase the efficiency of extraditions throughout the EU by abolishing the need to pass extradition requests through diplomatic channels and by harmonising the legal tests for extradition. As opposed to prior extradition regimes, for a wide variety of crimes, the test for double criminality (i.e., the crime is punishable in both countries) was abolished. In addition, Austrian citizens must be extradited if their crime is not subject to Austrian jurisdiction.

If a non-EU member state seeks extradition from Austria, the extradition regime is governed by the European Convention of Extradition from 13 December 1957 and its additional protocols (if ratified). This multilateral treaty is also available for signature by non-members of the Council of Europe, including Israel, South Africa, and South Korea. Under the Convention, extradition is granted for offences punishable under the laws of both countries (double criminality) with imprisonment of at least one year, but generally excludes extradition for political, fiscal, or military offences. The parties may also refuse to extradite their own nationals.

Austria has also entered into bilateral extradition treaties with non-EU member states, such as Australia, Canada, and the US, which either establish an extradition regime or specify the rights and obligations from multilateral treaties.

For extradition requests from countries that are not a party to a multilateral convention or have not concluded a bilateral treaty, the Austrian Act on Extradition and Judicial Assistance (ARHG) applies. The ARHG establishes certain principles that must be considered when a state requests extradition, including that the person may not be an Austrian national and that they must receive a fair trial.

In summary, if extradition is requested by a non-EU member state, a refusal to extradite without going into the merits of the case is only possible if the person is an Austrian citizen. Being an EU citizen with permanent residency in Austria is not sufficient to refuse extradition.

Austria's extradition laws and procedures

Extradition Treaties:

Austria's extradition regime with other countries depends on whether the requesting state is a member of the European Union (EU) or not.

Extradition to EU Member States:

EU member states can issue a European Arrest Warrant (EAW) to request the extradition of an individual accused or convicted of a crime. The Austrian extradition regime to other EU member states is governed by the federal law on judicial cooperation in criminal matters, known as the EU-JZG. The EAW simplifies the extradition process by abolishing the need for diplomatic channels and harmonizing legal tests for extradition.

Extradition to Non-EU Countries:

If the requesting state is not an EU member but is a member of the Council of Europe (e.g., Russia), the extradition regime is governed by the European Convention on Extradition from 1957 and its additional protocols, if ratified. Austria has also entered into bilateral extradition treaties with non-EU countries, such as Australia, Canada, and the United States, to establish specific extradition procedures.

For extradition requests from countries that are not party to a multilateral convention or bilateral treaty, the Austrian Act on Extradition and Judicial Assistance (ARHG) applies. This act outlines certain principles that must be considered, including that the individual must not be an Austrian national and must receive a fair trial in the requesting state.

Nature of the Crime:

Extradition requests typically involve crimes that are considered serious and punishable by a minimum penalty in both the requesting and requested states. The crime must also qualify as an offense in both countries, known as the principle of double criminality. However, this requirement has been waived in some jurisdictions, including within the European Union, for specific offenses listed under the European Arrest Warrant.

Rights of the Individual:

Austria, like several other countries, has laws against extraditing its citizens to other jurisdictions. However, Austrian authorities have the discretionary power to extradite their nationals if it is permitted by Austrian law. The possibility of a fair trial and the potential for certain forms of punishment, such as capital punishment or torture, are also considered when evaluating extradition requests.

Procedures:

The extradition procedures depend on the laws and practices of the requested state, which in this case is Austria. The requesting state must submit a formal extradition request through diplomatic channels, supported by evidence that establishes a reasonable basis for believing that the individual committed the offense. If the individual is found within Austria's territory, Austrian authorities may arrest the fugitive and subject them to the extradition process.

Recent Examples:

Austria has received prominent extradition requests, such as Kazakhstan's request for its ex-ambassador for an alleged murder. In 2019, Austria's Supreme Court upheld a decision to grant a U.S. request to extradite Ukrainian tycoon Dmytro Firtash, who was indicted by a U.S. grand jury on bribery charges.

Frequently asked questions