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[logo] MINISTRY OF JUSTICE Liberty Equality Fraternity¶
Directorate of Criminal Affairs and Pardons¶
Specialized Criminal Justice Sub-Directorate¶
Office for the International Mutual Assistance in Criminal Matters¶
Paris, December 11, 2020¶
Mr. Keeper of the Seals, Minister of Justice¶
to¶
Department of Justice (DOJ)¶
Through Andrew FINKELMAN, Liaison Magistrate Embassy of the United States of America in Paris¶
I have the honor to inform you that Article 696-2 of the French Code of Criminal Procedure provides that France can extradite “any person not having French nationality,” it being specified that nationality is assessed on the day of the commission of the acts for which extradition is requested (Article 696-4 $ 1^{\circ} $ ).¶
The French Code of Criminal Procedure therefore absolutely prohibits the extradition of a person who had French nationality at the time of the commission of the acts for which extradition is requested.¶
The penal law being of strict interpretation, there is no reason to discriminate between nationals and binationals. From the moment they were French at the time of the facts, the person claimed is inextradible, regardless of whether they hold one or more nationalities.¶
When the refusal to extradite is based on the nationality of the requested person, France applies the principle “aut tradere, aut judicar” according to which the State which refuses the surrender must judge the person. Thus, Article 113-6 of the Penal Code gives competence to the French courts to judge acts committed abroad by a person of French nationality.¶
Some countries, generally under Anglo-Saxon law, agree to extradite their nationals and, at the same time, have no jurisdiction to judge acts committed by their nationals on foreign territory. This is particularly the case of the United States of America.¶
13, place Vendôme - 75042 Paris Cedex 01 Telephone: 01 44 77 60 60 www.justice-gouv.fr¶
EFTA00072710¶
Article 3 of the Bilateral Extradition Treaty signed on April 23, 1996 between the United States of America and France stipulates that “The requested State is not bound to grant the extradition of any of its nationals, but the Executive Power of the United States has the right to do so at its discretion if it deems it appropriate.”¶
In application of this Treaty and of the general principle of non-extradition of nationals under French law, France systematically refuses to grant the extradition of French nationals to the American judicial authorities, while the American authorities regularly agree to extradite their nationals to France.¶
It should be noted that the principle of non-extradition of nationals applies not only to the United States but also to all other States except the Member States of the European Union under the terms of the Law of March 9, 2004 transposing the framework decision of June 13, 2002 on the European arrest warrant, which provides that the surrender of the requested person may not be refused on the sole ground of his French nationality.¶
This principle of non-extradition of nationals fits into the context of the construction of the European judicial area which itself is part of a very specific process of political integration between the Member States of the European Union. This high level of political integration existing between the Member States of the European Union goes hand in hand with a certain homogeneity within these States in terms of the scale of penalties as well as in terms of adjustment of penalty methods; the member states being bound by the same international obligations (in particular the obligations arising from the European Convention for the Protection of Human Rights and Fundamental Freedoms and from the case law of the European Court of Human Rights).¶
In any event, the principle of non-extradition of nationals is a principle of extradition law from which France has never deviated outside the framework of the European Union.¶
Office for the International Mutual Assistance in Criminal Matters¶
Philippe JAEGLɶ
[signature]¶
EFTA00072711¶