Delivery and surrender are essential components of international criminal law, which involve transferring a person to another state for criminal prosecution or execution. These procedures allow a state to claim a person for prosecution or criminal execution.
Surrender takes place within the European Union (EU) and is governed by the European Arrest Warrant (EAW). This can be for an ongoing criminal investigation or for the execution of a sentence already imposed. The rules for surrender within the EU are set out in the Surrender Act.
Delivery concerns the transfer of an individual between countries that are not necessarily members of the EU, such as Dubai or Turkey. You can go through this link read more on the extradition procedure.
What does the surrender procedure entail?
The surrender procedure begins with the issuance of a European arrest warrant (EAW) by an EU member state. This is a formal request for surrender to another member state. With this warrant, Dutch investigators can arrest the wanted person in the Netherlands.
After the arrest, the person claimed will be heard by the police. An arraignment will then take place within three days before the magistrate judge or the prosecutor. The arraignment is an important moment in the process. This is because during this arraignment, it will be assessed whether detention should continue or whether the claimed person may await her/his trial in freedom. The lawyer may ask for detention to be suspended. If the risk of flight is limited, it may be decided during arraignment to suspend detention. This will take into account the personal circumstances of the person in question. The personal circumstances will include the living, working and family situation.
During the arraignment, the claimed person must choose between short or long procedure. If the claimed person chooses the short procedure, only a short hearing will take place and she/he will be surrendered to the requesting state within 20 days. If the long procedure is chosen, the court will investigate the case further.
Ultimately, the Amsterdam District Court will have to decide whether the claimed person can be surrendered. In a surrender procedure, there are several grounds on which the Netherlands can refuse surrender. These grounds for refusal are set out in the Surrender Act and are intended to protect the rights of the person claimed and to ensure that the surrender is carried out fairly and in accordance with the law.
What could be reasons to refuse a surrender?
An important ground for refusal is the principle of double criminality. This means that the offense for which surrender is requested must be punishable in both the issuing country and the Netherlands. If the offense is not recognized as a criminal offense in the Netherlands, the surrender may be refused.
There should be no double punishment. If the claimed person has already been tried or punished in the Netherlands for the same offense, the surrender may be refused.
Surrender may also be refused if the request is for a political crime. These are crimes considered to be directed against the state or political institutions, such as rebellion or high treason. Protecting individuals from prosecution for political reasons is a fundamental principle in international law.
Surrender may be refused if there are reasonable grounds to believe that the rights of the claimed person will not be respected in the issuing country. This may be the case, for example, if there is a risk of inhuman or degrading treatment, poor detention conditions, or lack of a fair trial. The Dutch court must be satisfied that the person's rights are guaranteed in the other country.
In some cases, the surrender of a Dutch citizen may be refused, especially if it involves serving a sentence. The court may stipulate that if the person is convicted in the issuing country, he may serve his sentence in the Netherlands. This offers protection to Dutch nationals from unjust persecution abroad.
Surrender may also be refused on serious humanitarian grounds. This may come into play, for example, when the surrender would cause a serious deterioration in the health of the claimed person or when other humanitarian circumstances are such that the surrender would be inhumane.
Lawyer surrender needed?
For surrender cases, the claimed person is given a lawyer after arrest. Specialized legal assistance is necessary in surrender proceedings. Our attorneys have the necessary expertise. Should you be aware of a surrender issue prior to arrest, it is highly advisable to contact us prior to your arrest. We can then strategize with you at an early stage.
Do you have questions or would you like to seek legal help immediately? If so, please contact our office. You can email us at info@klpadvocaten.nl or contact us by phone during business hours at 020-6731548. For urgent matters, such as an upcoming arrest, please reach us at our emergency number 06-24428734.
Want to read more about rendition? Then click here.
