Leslie Massey
Austria, like many countries, has its own internal laws regarding extradition. Extradition is a formal process by which one jurisdiction requests another to return a suspected or convicted criminal. The process is typically regulated by treaties, and the requesting state must meet certain requirements, such as demonstrating the seriousness of the crime and establishing a prima facie case. While Austria has been party to several high-profile extradition cases, it is prohibited by statute or constitution from extraditing its own citizens. This is a notable aspect of Austria's approach to extradition, and it is important to understand the legal intricacies and bilateral agreements that govern such processes.
| Characteristics | Values |
|---|---|
| Extradition treaties | List and dual criminality |
| Extradition treaty with the US | Signed on January 8, 1998 |
| Extradition to the US | Allowed |
| Extradition of Austrian citizens | Not allowed |
| Extradition of foreign citizens | Allowed |
| Extradition requests from EU member states | Regular |
| Extradition requests from non-EU member states | Allowed |
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What You'll Learn
Austria-US extradition treaty
The United States and Austria have an extradition treaty in place, signed in Washington on January 8, 1998. This treaty outlines the terms and conditions under which the two countries agree to extradite individuals to the other country.
The treaty stipulates that each country is obligated to extradite to the other any individual who has been charged with or found guilty of an extraditable offense in the requesting state. An extraditable offense is defined as a crime punishable by imprisonment for more than one year or by a more severe penalty under the laws of both Austria and the United States. This "dual criminality" clause allows for a broader range of offenses to be covered by the treaty without the need for frequent renegotiation or supplementation.
The treaty also addresses the issue of nationality, stating that neither Austria nor the United States is required to extradite its own citizens. However, the executive authority of the requested state has the discretionary power to do so if it is not prohibited by the laws of that state. If extradition is denied solely based on the nationality of the individual, the requested state must submit the case for domestic prosecution at the request of the requesting state.
Other notable provisions in the treaty include the requirement for the requested state to represent the interests of the requesting state in any proceedings related to the extradition request and the allocation of expenses related to translation and transportation to the requesting state. The treaty also establishes a direct line of communication between the US Department of Justice and the Austrian Ministry of Justice for consultation on individual cases and to enhance treaty implementation procedures.
Austria has also entered into bilateral extradition treaties with other countries, such as Australia, Canada, and the US, or it adheres to the Extradition Convention. For extradition requests from countries that are not party to a relevant convention or treaty, Austria follows its own legislation on extradition and judicial assistance, which includes the principle that the person must not be an Austrian national and must receive a fair trial.
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Austria's internal law
Austria's extradition regime to other EU member states is also governed by the European Convention of Extradition from 13 December 1957 and its additional protocols, if ratified. This convention provides for extradition for offences punishable under the laws of both countries (double criminality) with a minimum sentence of one year. However, it generally excludes extradition for political, fiscal, or military offences.
Austria has also entered into bilateral extradition treaties with non-EU members, such as the Treaty on Extradition between Yugoslavia and Austria, signed on 29 September 1976, which is applicable to Macedonia.
In addition, Austria has enacted its own Law on Extradition and Mutual Assistance in Criminal Matters (ARHG), which came into effect on 1 July 1980. This law provides for the independent legal assessment of extradition requests and the protection of individual rights during the extradition process.
Austria has also signed extradition treaties with the United States, most recently on 8 January 1998. This treaty aims to enhance cooperation between law enforcement in both countries and combat transnational organised crime, terrorism, and drug trafficking.
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Extradition of Austrian citizens
Austria has had to deal with prominent extradition requests in the past, including Kazakhstan's extradition request of its ex-ambassador for alleged murder. 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). Under this law, a European Arrest Warrant (EAW) can be issued by an EU member state to request another member state to apprehend and hand over a criminal suspect for criminal prosecution or enforcement of a custodial sentence. The EAW has increased 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.
Austria has also entered into bilateral extradition treaties with countries that are not members of the EU. If the requesting state is a member of the Council of Europe, 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, and has been ratified by 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 refuse to extradite their own nationals.
Austria has an extradition treaty with the United States, signed in Washington on January 8, 1998. This treaty follows closely the form and content of extradition treaties recently concluded by the United States and represents a significant step in bilateral cooperation between the two countries. Upon entry into force, it replaced the Treaty between the Government of the United States and the Government of Austria for the extradition of fugitives from justice, signed in Vienna on January 31, 1930, and the Supplementary Extradition Convention signed in Vienna on May 19, 1934. Under the treaty, the United States Department of Justice and the Ministry of Justice of Austria may consult with each other directly in connection with the processing of individual cases.
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Austria's extradition of non-EU citizens
Austria has had to deal with prominent extradition requests in the past, including Kazakhstan's extradition request of its ex-ambassador for alleged murder. When assessing if extradition from Austria is possible, the first step is to identify whether the extradition is being sought by an EU member state. If the requesting state is a member of the Council of Europe, the extradition regime between Austria and the requesting state 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-Council members, such as 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.
Austria has also entered into bilateral extradition treaties with non-EU member states, which establish an extradition regime or fall under the Extradition Convention. The Austrian 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). EU member states may issue a European Arrest Warrant (EAW) requesting another member state to apprehend and hand over a criminal suspect for criminal prosecution or the enforcement of a custodial sentence. The EAW has aimed to increase the efficiency of extradition throughout the EU by abolishing the need for extradition requests to pass through diplomatic channels and harmonising the legal tests for extradition.
Austria, like several other countries, has laws against extraditing its citizens to other countries' jurisdictions. However, it does have extradition treaties in place, such as with the United States. In the case of a request for extradition by a non-EU member state, Austria can refuse to extradite without considering the merits of the case if the person is an Austrian citizen. Being an EU citizen with permanent residency in Austria is not enough to avoid extradition in this case. For example, a German national staying or even permanently residing in Austria could be extradited from Austria to the US.
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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). The European Arrest Warrant (EAW) allows member states to request the apprehension and handover of a criminal suspect for criminal prosecution or the enforcement of a custodial sentence. The EAW has increased the efficiency of extraditions throughout the EU by abolishing the need for extradition requests to pass through diplomatic channels and by harmonising the legal tests for extradition. For a wide variety of crimes, the test for double criminality (i.e. the crime is punishable in both countries) has been abolished.
Austria has entered into bilateral extradition treaties with non-EU countries, such as Australia, Canada, and the US, or the Extradition Convention. These treaties establish an extradition regime between the countries or specify the rights and obligations from multilateral treaties. For extradition requests from countries that are not a party to a multilateral convention or that have not concluded a bilateral treaty, the Austrian Act on Extradition and Judicial Assistance (Auslieferungs- und Rechtshilfegesetz; ARHG) applies.
Austria, like several other countries, has laws against extraditing its citizens to other countries' jurisdictions. However, it does have extradition treaties in place with other countries, such as the US. The Extradition Treaty between the Government of the United States of America and the Government of the Republic of Austria, signed in 1998, obligates each party to extradite to the other any person charged with or found guilty of an extraditable offence. An extraditable offence is defined as one punishable under the laws in both parties by deprivation of liberty for a maximum period of more than one year or by a more severe penalty.
Austria has had to deal with prominent extradition requests in the recent past. One of the most notable cases was Kazakhstan's extradition request for its ex-ambassador for alleged murder. This has raised the question of whether Austria is a safe harbour or the first step towards prison in a third country. This question has become increasingly important for managers or employees confronted with transnational bribery or anti-trust investigations.
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Frequently asked questions
Austria has had to deal with prominent extradition requests in the past. The country has its own internal laws that will apply to extradition requests. The country has previously extradited a Pakistani man suspected of links to the jihadists who killed 130 people in Paris.
There are two types of extradition treaties: list and dual criminality treaties. The most common and traditional is the list treaty, which contains a list of crimes for which a suspect is to be extradited.
Yes, Austria has extradition treaties with the United States, Argentina, Barbados, Cyprus, France, India, Luxembourg, Mexico, Poland, Spain, and more.
