1. Are extradition proceedings regulated by domestic legislation, treaties or both?
Extradition proceedings are regulated in France by both treaties (bilateral or multilateral) and domestic legislation (article 696 and seq. of the Code of Criminal Procedure, available at https://www.legifrance.gouv.fr/affichCode.do;jsessionid=078CB0C37F3E1D7FA16BC6D582737026.tplgfr33s_2?idSectionTA=LEGISCTA000006151925&cidTexte=LEGITEXT000006071154&dateTexte=20190501).
An official translation of the Code of Criminal Procedure (CCP) is available via https://www.legifrance.gouv.fr/Traductions/Liste-des-traductions-Legifrance.
Domestic legislation will be applicable in the absence of an international treaty (which has primacy over domestic law) or for matters not covered or regulated by the treaty (as a supplemental law), pursuant to article 696 of the CCP.
2. Is there a central register of extradition treaties that your state has entered into?
The Ministry of Foreign Affairs created a database containing all international treaties and agreements that France has entered into, including extradition treaties. The database is available at https://basedoc.diplomatie.gouv.fr/exl-php/recherche/mae_internet___traites.
3. Do special extradition arrangements apply to certain foreign states, for example states that are geographically proximate, or politically, legally or economically closely linked?
Special extradition arrangements apply between member states of the European Union that have transposed the framework decision of 13 June 2002 about the European arrest warrant (EAW). The EAW now mostly replaces extradition proceedings within the European Union and between the 28 member states. It allows the surrender of persons who are subject to an EAW between judicial authorities, without any government role or supervision, according to a simplified and facilitated process (limited bars to extradition, limited double criminality rule, strict time frame).
4. Is extradition possible to states that have no bilateral or multilateral extradition treaty with your state if they are party to an international convention?
In the absence of a bilateral or multilateral extradition treaty, domestic law rules on extradition apply (article 696 and seq. of the CCP).
Certain international conventions, the purpose of which is not extradition, contain provisions providing for and regulating extradition, for example the International Convention for the Suppression of the Financing of Terrorism of 9 December 1999 signed in New York, article 11 of which establishes a legal base for extradition for the crimes provided for in this Convention. France ratified this convention on 7 January 2002.
5. Is extradition possible to states that are not extradition treaty partners as an ad hoc arrangement?
In the absence of a bilateral or multilateral extradition treaty, domestic law rules on extradition apply (articles 696 et seq. of the CCP). This means that, even in the absence of an extradition treaty, it is possible for a country to request extradition, although France will not be compelled to give a favourable response. General rules provided by the above-mentioned articles will apply. However, the absence of a treaty is a sign that the requesting country may not meet the required standard to be granted an extradition.
6. For which offences is extradition from your state allowed?
Under French law, not all offences can be subject to extradition proceedings. Extradition may be allowed only if the offence with which the requested person is charged fulfils certain requirements relating to that offence:
- punishability; and
Location of the offence
Pursuant to article 696-2 of the CCP, the offence must have been committed:
- in the territory of the requesting state;
- outside the territory of the requesting state by a national of that state; or
- outside the territory of the requesting state by a foreigner, if the offence in question is one of the offences for which French law authorises prosecution by the French authorities, even though it has been committed outside its territory.
However, France does not allow extradition if the offence was committed in the French territory (CCP, article 696-4, 3°).
Gravity of the offence
Pursuant to article 696-3 of the CCP, extradition is allowed for offences that may be punished by the requesting state’s law with a sentence of imprisonment for two years (or more) or, if the extradition’s purpose is the execution of a sentence, if the sentence is imprisonment for two months or more.
An offence that could only be punished with a fine is not an extraditable offence.
The attempted commission of an offence and complicity may be extraditable offences under the same conditions if they are punishable by both the requesting state and the requested state.
Finally, extradition will not be allowed if the penalty for the offence for which extradition is requested is contrary to French public policy, pursuant to article 696-4, 6° of the CCP (such as the death penalty – see question 19).
Punishability of the offence
First, the offence for which extradition is requested must be punishable in both the requesting state and the requested state (the principle of double criminality is applicable under French law – see question 7).
Second, according to the ne bis in idem principle, the requested person cannot be extradited if the crimes have been prosecuted and adjudicated in France in a final decision (CCP, article 696-4, 4°).
Third, the infringement or the execution of the sentence should not be time-barred before the extradition request or the arrest of the requested person, under the laws of either the requesting state or the requested state (CCP, article 696-4, 5°). French courts must assess whether the statute of limitations has been reached pursuant to both the requesting state’s and French law.
Nature of the offence
Extradition is not allowed for certain categories of offences:
- Political offences: article 696-4, 2° of the CCP states clearly that extradition will be refused if the offence is regarded as a political offence, which, according to case law, can be (1) an offence that undermines the political order, which is directed against the government, which disturbs the order established by the fundamental laws of the state and the distribution of powers, or (2) an ordinary offence with political motivations and pursuing a political goal.
- Military offences: extradition is excluded for military offences as defined by the French Code of Military Justice (CCP, article 696-4, 8°) and that can only be committed by military personnel.
The French Court of Cassation reaffirmed in a recent decision (Court of Cassation, 7 August 2019, No. 18-84.182) that the court, before approving an extradition (see question 10 for the extradition process), should expressly mention the fulfilment of the above-mentioned legal requirements in its decision. Failing that, the decision will be quashed by the Court of Cassation, eg, if the judge failed to specify in its decision if the prosecuted offence was or not time-bared according to French law (the judge only indicated that it was not time-barred according to the requesting state’s law).
7. Is there a requirement for double (dual) criminality? How is this assessed?
Pursuant to article 696-3 of the CCP, there is a requirement for double criminality.
French courts assess whether, at the time it is committed, the offence is punishable in both the requesting state and the requested state.
The French judge will only assess whether the alleged offence (as qualified by the requesting state) is an extraditable offence (see question 6). French courts will not verify whether the requesting state accurately characterised the alleged conduct with respect to its own criminal law.
As per the characterisation of the alleged conduct as a punishable offence under French law, the French judge will review the facts and characterise them according to French criminal law. The judge has to explain the content of the retained charge and the associated penalties. The French qualification of the alleged conduct is not necessarily identical to the requesting state authorities’ qualification.
If, at the time it is committed, the offence was not punishable under French law, the French judge will refuse the extradition request.
Contempt of court is often problematic as it does not exist under French criminal law. For example, a person who did not abide by a French judge’s order while under judicial supervision would be a cause for pre-trial detention but would not be an autonomous offence. A requiring state would therefore not obtain the extradition on these grounds on the basis of the dual criminality requirement. This was recently confirmed by the French Court of Cassation (Court of Cassation, 19 June 2019, No. 19-80.182).
8. How would your state deal with a request that includes an offence for which extraterritorial jurisdiction is claimed?
Pursuant to article 696-2 of the CCP, the French state will consider extraterritorial jurisdiction of the requesting state pursuant to the rules on extraterritorial jurisdiction provided for by French law. Therefore, extraditable offences will include offences committed outside the territory of the requesting state by a citizen of that state, and offences committed outside its territory by a foreigner if, for the same offence, and if France were the prosecuting authority, the French courts would have jurisdiction (eg, (i) if the victim is a French citizen and, in certain cases, resides in France; (ii) offences that infringe on the greater interests of the state; or (iii) when the law gives jurisdiction to the French state because the authors or accomplices are in France, among others). (CCP, articles 113-6 to 113-12 – main provisions on extraterritorial jurisdiction).
However, France does not allow extradition if the offence was committed on French territory (CCP, article 696-4, 3°).
9. What must be included as part of a valid extradition request made by the foreign state?
An extradition request must include (CCP, article 696-8):
- the original or an authenticated copy of either the conviction and sentence decision, an order of indictment of the requested person before the criminal court, an arrest warrant or any other order having the same effect issued by the requesting state’s judicial authority; and
- a copy of all applicable law provisions for the offence charged.
No evidence is required at this stage. However, the judge examining the merits of the request may request additional information later in the process.
According to the case law of the French Court of Cassation, translation into French is not mandatory unless stipulated in a convention.
10. What are the stages of the extradition process?
Extradition requests are sent to the French government through diplomatic channels (CCP, article 696-8).
After a formal review of the request and the documents annexed thereto, the Ministry of Foreign Affairs refers the request to the Ministry of Justice. The latter verifies that the request is in order and sends it to the head of prosecution at the territorially competent court of appeal for enforcement (CCP, article 696-9).
The requested person is arrested and placed under judicial control for a maximum of 48 hours, during which time he or she is brought before the prosecutor, who informs the requested person about the request for extradition and his or her rights (CCP, article 696-10).
If the prosecutor decides at this stage that the requested person should be remanded in custody, the latter is brought before the First President of the Court of Appeal, who decides whether to hold the requested person in provisional detention (CCP, article 696-11). This decision is notified orally and stated in a minute.
If the requested person consents to extradition, a special process is applied (see question 22).
If the requested person does not consent to extradition, the proceedings are referred to the Chambre de l’instruction (a division of the court of appeal). The requested person is brought before this court within 10 days of the date he or she was brought before the prosecutor. The prosecutor and the requested person or his or her counsel are heard (CCP, article 696-15).
The Chambre de l’instruction examines whether the request for extradition fulfils the legal requirements (see question 6) and renders a reasoned opinion within one month.
If the opinion is unfavourable, and the decision is final, extradition cannot be granted (CCP, article 696-17).
If the opinion is favourable, the extradition may be authorised by decree of the Prime Minister (CCP, article 696-18). The requested person should be notified of the decree and remitted to the requesting state within one month of that notification. Failing that, the requested person is released and cannot be requested for the same matter (CCP, article 696-18).
The aforementioned time limits are not applied in practice (see question 26). According to case law, there is no penalty for non-compliance with these deadlines by the concerned authorities.
See question 25 regarding possible appeals.
A simplified extradition process exists when the request is made between EU member states. As it is a process between judicial authorities, the diplomatic channel is not needed (CCP, articles 696-25 to 696-33) and it is only the EAW that is applicable. (Note that the EAW is only applicable to offences committed after 1 November 1993.)
11. If an initial political decision is required, what factors can be considered?
According to French domestic legislation, there is no obligation for the French government to extradite a requested person. Only an extradition treaty can provide otherwise.
Therefore, it is not infrequent that humanitarian grounds or international obligations are put forward by the French government to justify a refusal to transmit a request for extradition to the French judicial authorities.
12. Is provisional arrest, before the extradition request is received, possible?
In the case of an emergency and at the direct request of the competent authorities of the requesting state, a provisional arrest for the purpose of extradition – and before the extradition request is sent by diplomatic channels – can be ordered by the prosecutor of the territorially competent court of appeal (CCP, article 696-23).
The French courts do not have scrutiny over the notion of an emergency. The prosecutor has discretionary power over the decision to grant, or not to grant, an order of provisional arrest.
13. Must a domestic arrest warrant be issued or can an Interpol red notice be used to carry out a provisional arrest?
In principle, a request for provisional arrest must be issued by the requesting state and be addressed to the prosecutor. To be valid, a request for provisional arrest shall mention the existence of one of the documents that must be annexed to an ordinary request for extradition (such as a conviction decision, an indictment order or an arrest warrant – see question 9), but the provision of the document is not necessary at this stage.
France admits that an Interpol red notice be regarded as a request for provisional arrest, as indicated by a circular of the Ministry of Justice of 31 July 1998 (CRIM 98-07 F5). However, it seems that, in practice, only red notices issued by a state that is a party to the European Convention on Extradition of 1957 are used as a request for provisional arrest. Frances requires other states to send a separate request for provisional arrest.
14. What is required to apply for a domestic extradition arrest warrant?
Pursuant to article 696-23 of the CCP, a request for provisional arrest may be transmitted by any means allowing a written to be kept and must indicate:
- the existence of one of the documents that must be annexed to an ordinary request for extradition (see question 9);
- a statement of the intention of the requesting state to send a request for extradition;
- a brief statement of the facts put against the requested person; and
- the identity and nationality of the requested person, the offence for which the extradition will be requested, the date and the place of commission of the offence, as well as, where applicable, the quantum of the sentence incurred, the sentence remaining to be served, and the nature and date of the acts that interrupted or suspended the statute of limitation.
A copy of this application must be addressed to the French Minister of Foreign Affairs.
Otherwise, an ordinary request for extradition transmitted through diplomatic channels also leads to a domestic extradition arrest warrant. The requirements for applying for an ordinary request for extradition are described in question 10.
15. What rights does the requested person have while under arrest?
Ordinary request for extradition process
When arrested, the requested person is placed under judicial control for a period that cannot exceed 48 hours.
During this time, the person must be presented to the prosecutor and has the rights applicable to a regular police custody. While under arrest, the requested person has the right to (CCP, article 696-10):
- be informed that he or she is the subject of a request for extradition;
- be informed of the content of the extradition request and of his or her rights;
- be assisted by a lawyer of his or her choice or, failing that, by an assigned counsel, during the whole extradition process and who must be immediately informed. The requested person has the right to have a confidential meeting (a maximum of 30 minutes every 24 hours) with his or her counsel from the moment of the arrest. The lawyer may access the file immediately;
- be assisted by an interpreter;
- notify a relative; and
- be examined by a doctor.
If the requested person is remanded in custody during the examination of the request for extradition, the release may be requested at any time to the Chambre de l’instruction (CCP, article 696-19).
Request for provisional arrest process
The person who is the subject of a provisional arrest does not have the rights applicable to a regular police custody (Court of Cassation, 12 May 2010, No. 10-81.249).
The requested person is informed by the prosecutor, in a language he or she understands, that he or she is the subject of a provisional arrest request and the content of that request (CCP, article 696-23).
If the requesting state does not provide the French authorities with the formal request for extradition and the annexes thereto within 30 days, the requested person is released (CCP, article 696-24).
16. Is bail available in extradition proceedings?
If the prosecutor decides not to release the requested person until the hearing before the Chambre de l’instruction, the requested person is brought before the First President of the Court of Appeal. This judge may decide either to incarcerate the requested person, place the requested person under judicial supervision (which submits him or her to certain obligations) or to release him or her.
The payment of bail (for which the amount and method of payment are fixed by the judge) is one of the forms of judicial supervision available to the judge (CCP, articles 696-11 and 138.11°).
17. If so, what are the factors that a court will take into account in deciding whether to grant bail?
The judge will analyse whether the requested person has sufficient guarantees to appear for trial or at any other stage of the extradition proceedings.
The judge will take into account the personality of the requested person, his or her morality, residency (especially, if he or she has an address in France), occupation, resources and family situation. The context and the behaviour of the requested person during the arrest, and any funds transfers, travel and relationships of the requested person abroad may also be taken into consideration. In practice, persons of foreign nationality and without residence in France are considered as a higher risk of absconding.
The court has discretion when considering the issue of morality and the person’s criminal record may be looked at. It is possible that police intelligence will be considered, and favourable statements from neighbours, teachers, employers or educators may be put forward.
18. Can the court impose conditions when granting bail? What conditions can be, and usually are, imposed?
Under French law, bail is one of the possible conditions imposed on a person placed under judicial supervision. Other measures can be taken to prevent flight risk, such as, among others, prohibition to go beyond certain territorial boundaries, house arrest, passport confiscation (CPP, article 138).
19. What bars can be raised to resist extradition?
The principal bars for resisting extradition are provided for in article 696-4 of the CCP.
1. Bars relating to the requested person
France refuses to extradite its own nationals (see question 20). This is a mandatory bar.
Humanitarian reasons or age
The most recent extradition conventions provide for the refusal to extradite for humanitarian reasons.
However, the domestic legislation on extradition does not mention this. This bar to resist extradition has been recognised by French case law. It is therefore a discretionary bar.
According to the Supreme Court, the French judge has to verify the existence of a humanitarian reason to refuse extradition (Court of Cassation, 9 October 2012, No. 12-85.134). French judges have annulled government decrees that did not provide for guarantees obtained from the requesting state about the healthcare with which the requested person would be provided once extradited, to ensure that the extradition would not expose the requested person to serious health risks (Council of State, 13 October 2000, No. 212865; 10 February 2006, No. 284771). It authorises an extradition when guarantees from the requesting state are satisfactory.
The French state may elect not to extradite a person that has been granted refugee status by the French administrative authorities, pursuant to article 1, A, 2° of the Geneva Convention of 28 July 1951. The bar is not absolute: the refugee may be extradited to a state other than that where he or she is threatened, but the extradition government decree will stipulate conditions or reservations.
In principle, diplomatic representatives or agents cannot be extradited to a state other than that of their accreditation, unless this state lifts their immunity.
2. Bars relating to the concerned offence
Some offences cannot give rise to extradition (political or military offences, offences committed in the French territory, time-barred offences etc – see question 6).
3. Bars relating to the prosecution and punishment of the concerned offence
Protection against double jeopardy
The requested person cannot be extradited if the crimes, even though committed outside the French territory, have been adjudicated in France, in a final decision (CCP, article 696-4, 4°). This is a mandatory bar.
The ne bis in idem principle is only applicable if a final decision has been rendered by the requested state. Under domestic legislation, a decision rendered by a third state will not be considered to allow or refuse extradition. A different solution may apply under certain extradition treaties.
This principle is not applicable to pending or halted prosecutions. A different solution may apply under certain extradition treaties.
4. Bars relating to the compatibility of the requesting state’s proceedings with French public policy
Extradition will be refused if the requested person will be tried in the requesting state by a court that does not provide the fundamental guarantees of procedure and the protection of the rights of the defence (CCP, article 696-4, 7°). The Chambre de l’instruction must request from the requesting state, if needed, complementary information on such guarantees in favour of the requested person during his or her trial.
5. Bars relating to the applicable penalty in the requesting state
Extradition will not be allowed if the penalty for the offence for which the extradition is requested is contrary to French public policy, pursuant to article 696-4, 6° of the CCP.
Extradition for a criminal act that is punishable by the death penalty in the requesting state is contrary to French public policy. Extradition will be refused also if a criminal act that is not qualified in the extradition request as an offence that is punishable by the death penalty may be qualified as such in the event that the aggravating factors are held against the alleged offender. Other forms of punishment may be considered contrary to French public policy, such as amputation and life sentences without parole.
6. Obvious error
In principle, France does not adjudicate the merits of the charges against a requested person. However, the Chambre de l’instruction will oppose an extradition request if there is an obvious error (CCP, article 696-15).
An obvious error occurs when it is manifest that it is impossible for the requested person to have committed the offence: for example, when it is proven that the person was under house arrest in the requested state when the offence was allegedly committed in the requesting state (Paris Court of Appeal, 1 October 1986).
20. Does your state extradite its own nationals and residents?
In principle, France refuses to extradite its own nationals. Article 696-2 of the CCP stipulates that France may extradite ‘any person who does not have French nationality’.
When the extradition is based upon French domestic law, the nationality bar is mandatory. The requested French national is not entitled to waive this protection.
French nationality is assessed on the date of the alleged offence (CCP, article 696-4, 1°). Therefore, the bar would not apply if nationality was acquired after the date of commission of the extraditable offence.
The only exception to this principle is where extradition treaties provides for discretion for the French state to refuse or authorise the extradition of French nationals.
Note that when a refusal to extradite is based upon the French nationality of the requested person, the French jurisdictions are competent to prosecute and judge the requested person. Indeed, any French national that committed, outside the French territory, any ‘crime’ (ie, an offence punished by a minimum sentence of 10 years’ imprisonment) or ‘délit’ (an offence punished by any prison sentence under 10 years) when the ‘délit’ is punished in both states, may be adjudicated in France (CCP, article 113-6).
There is no bar based on either residence in French territory or statelessness.
21. Are potential breaches of human rights after extradition considered in the extradition process?
Potential breaches of human rights during a trial in the requesting state (infringement of the right to a fair trial) and those incurred by the sentence ordered by the requesting state’s courts (breach of the right to dignity, the right not to be subjected to torture or to inhuman or degrading treatment or punishment) are considered by the French judge prior to allowing or refusing the extradition (CCP, article 696-4 – see question 19).
The French judge may make the grant of the extradition conditional upon a written commitment from the requesting state’s authorities that the requested person will be detained under conditions that are compliant with the European Convention on Human Rights.
22. Can a person consent to extradition, and what is the procedure? Is consent irrevocable?
A person may consent to extradition, which will result in a more simplified procedure (CCP, articles 696-13 and 14).
During the first hearing, the prosecutor indicates to the requested person that he or she may consent to extradition.
If the requested person consents, the prosecutor immediately seizes the Chambre de l’instruction (the division of the court of appeal that decides the extradition request). The person appears before the Chambre de l’instruction within five days of the date of his or her presentation before the prosecutor.
The public prosecutor and the requested person are heard. The requested person may be assisted by an interpreter and his or her counsel.
If the requested person confirms his or her consent to extradition before the Chambre de l’instruction and that the legal conditions for extradition are fulfilled (see question 6), this court, after having informed the person of the legal consequences of his or her consent, renders a decision that enshrines it, within seven days of the hearing (unless further investigation is requested).
The consent, once confirmed at the hearing of the Chambre de l’instruction, is irrevocable. If the requested person consent to extradition, the decision of the Chambre de l’instruction cannot be appealed.
23. Is there a speciality protection? How is it provided? Does it apply if a person consents to extradition?
A speciality protection is provided for in domestic law, under article 696-6 of the CCP.
The speciality principle is applicable to acts or conduct committed before the extradition that are distinct from those on the basis of which the extradition is requested. A new characterisation of the conduct into a different offence, as well as the finding of aggravating circumstances, are not impeded by the speciality principle. However, the requested state may consent to waive speciality protection and authorise the requesting state to prosecute the requested person for acts or conduct distinct from those on the basis of which the extradition was requested (CCP, article 696-34).
Speciality protection applies even if the person consents to extradition. Speciality protection will only cease to apply if the requested person expressly waives his or her right to speciality protection during the hearing before the Chambre de l’instruction (CCP, articles 696-34 and 696-28).
24. If there is a political decision at the end of the extradition process, what factors can be considered?
The principal factor to be considered by the Prime Minister to issue or not issue the decree of extradition is the decision rendered by the Chambre de l’instruction. If the Chambre de l’instruction gives an unfavourable opinion about the extradition request, the Prime Minister cannot issue the decree (CCP, article 696-17).
In the event of a favourable opinion rendered by the Chambre de l’instruction, the Prime Minister may refuse to issue the decree, taking into account specific elements about the situation of the requested person or about the requesting state (such as refugee status, the state of health of the requested person or the risk of the death penalty in the requesting state – see question 19).
25. What ability is there to appeal against or judicially challenge decisions made during the extradition process? What are the requirements for any appeal or challenge?
The Chambre de l’instruction’s opinion on the extradition request can be judicially challenged before the Court of Cassation only on the basis of formal errors that ‘deprive the opinion of the essential conditions of its legal existence’ (CCP, article 696-15).
A decree issued by the Prime Minister can be judicially challenged before the administrative courts within one month of the issuance of the decree (CCP, article 696-18). The administrative judge will examine the legality of the process of issuance of the decree as well as the internal legality of the extradition (such as legal requirements or compliance with international conventions).
If the requested person is remanded in custody during the examination of the request for extradition, the Chambre de l’instruction may be requested at any time to release the person (CCP, article 696-19).
If the requested person is placed under judicial supervision by a decision of the First President of the Court of Appeal, this decision can be appealed before the Chambre de l’instruction within five days of the decision being given (CCP, article 696-11).
26. What are the time limits for the extradition process? How long does each phase of the extradition process take in practice?
In principle, the requested person, once arrested, is brought before the prosecutor within 48 hours and before the court within seven days of the date of the hearing before the prosecutor. The court gives its opinion about the extradition request within one month, unless additional information was requested from the requesting state. However, in practice, these time limits are not respected and the judicial process usually takes much longer.
The period between the Chambre de l’instruction’s decision and the issuance of the decree can be even longer, because no time limit is prescribed by law. This period should be ‘reasonable’, pursuant to European Court of Human Rights case law. In some cases, however, this period can be several months.
In practice, the whole process can take between several months and several years.
27. In what circumstances may parallel proceedings delay extradition?
Parallel criminal proceedings or sentencing in France may delay extradition. Pursuant to article 696-7 of the CCP, if the requested person is prosecuted or sentenced in France for an offence other than the one on the basis of which the extradition is requested, the extradition can only take place after the prosecution is concluded or, in the event of conviction and sentence, after the sentence has been served.
28. What provision is made for legal representation of the requesting state or the requested person?
The Chambre de l’instruction may authorise a representative of the requesting state to intervene during the hearing on the examination of the extradition request (CCP, article 696-16).
The requested person may be assisted by counsel immediately after arrest (CCP, article 696-10) and before the Chambre de l’instruction (CCP, article 696-15).