If you are being prosecuted abroad, extradition may seem inevitable. But one of the key protective mechanisms is the principle of double criminality. It means that extradition is only possible if the act you are charged with abroad is also considered a criminal offense in the country receiving the request. This is not merely a legal formality. This principle allows for extradition to be blocked in cases of politically motivated charges or conduct that is not considered a crime in your jurisdiction.
Our lawyers specialize in international arrest warrants and extradition cases. Experienced experts will help you use the principle of double criminality as an effective line of defense. We analyze the charges, compare legal norms across different jurisdictions, and work to obtain refusal of extradition if the request does not comply with international law.
Definition and Legal Essence of the Principle
The principle of double criminality is one of the key prerequisites without which extradition between states is not possible. Its essence lies in the following: a person may be extradited to a foreign state only if the act for which they are being prosecuted is considered a crime in both jurisdictions. This rule protects individuals from being prosecuted for actions that are permissible or not criminally punishable in the country of their current residence.
To satisfy the principle, an exact match of the legal definitions of the offense in both legal systems is not required. It is sufficient that the behavior attributed to the accused is also subject to criminal liability in the requested state. For example, in cases of fraud, even if the legal definitions differ across countries, the key factor is the presence of the same core illegal conduct.
This principle is particularly important in cases involving political, religious, or morally ambiguous offenses. It helps prevent extradition to countries with different legal standards and systems that use criminal law as a tool for repression. International treaties and the national laws of almost all countries with developed legal systems include this requirement as mandatory.
Some countries allow exceptions, especially within the framework of regional agreements where lists of extraditable offenses are harmonized (for example, under the European Arrest Warrant). However, even in such cases, it remains necessary to verify that the act meets the legal standards of both parties.
The Role of the Principle in International Extradition Agreements
The principle of double criminality has firmly established itself as one of the cornerstone elements of international extradition practice. It is widely reflected in most multilateral and bilateral agreements, as well as in the national legislation of rule-of-law-abiding states.
In the 1957 European Convention on Extradition (ratified by more than 50 countries), the principle of double criminality is enshrined in Article 2 and requires that the offense be punishable by at least one year of imprisonment in both countries. The United States adheres to this principle in nearly all of its bilateral treaties. In the United Kingdom, it is established as a mandatory requirement in the “Extradition Act 2003.”
In national legislation, the principle is often described as a safeguard against legal injustice and politically motivated prosecutions. For example, in Canada, extradition is not permitted if the act does not constitute an offense under Canadian law. A similar provision exists in Australia, where the alleged criminal conduct must correspond with the current criminal code.
Some regional agreements allow exceptions to this principle. For instance, within the European Union, with the introduction of the European Arrest Warrant (EAW), EU countries may extradite individuals without verifying double criminality for 32 pre-defined categories of offenses (including terrorism, corruption, human trafficking, etc.). However, even in these cases, compliance with legal standards remains mandatory.
Exceptions and Limitations to the Application of the Double Criminality Principle
One of the main examples is political offenses. Most countries traditionally do not extradite individuals accused of political acts, even if such acts are recognized as crimes in both jurisdictions. This approach is reflected in a number of international agreements, including the 1957 European Convention on Extradition, where political offenses are explicitly excluded from the list of extraditable grounds.
However, this exception does not apply to terrorist crimes, crimes against humanity, and other serious offenses. Since the 2000s, the international community has increasingly excluded terrorism from the list of political offenses. Even when politically motivated, a terrorist offense can serve as grounds for extradition without the need to comply with the principle of double criminality.
Another category of exceptions includes war crimes, such as crimes committed during armed conflicts, genocide, the use of prohibited weapons, and others. These acts are considered international crimes, and a separate procedure exists for their prosecution. In such cases, the issue of double criminality may not arise at all if the state acts under an international mandate.
Additionally, some jurisdictions have simplified extradition regimes, such as the European Arrest Warrant, where double criminality is not required for certain categories of offenses.
Practical Aspects and Case Examples
This principle was central to the case of journalist Julian Assange, when Sweden requested his extradition from the United Kingdom on charges of sexual offenses. The defense argued that some elements of the alleged offenses did not have an exact equivalent under British law, which became a subject of legal disputes over several years.
Another example is a case heard by the Ontario Court of Appeal (Canada) in 2005. U.S. citizen Robert Spring was denied extradition on charges of illegal arms sales, as the equivalent acts under similar circumstances were not considered a crime in Canada. The court noted that simple differences in statutory wording do not prevent extradition if the essence of the offense is the same. However, in this specific case, there was no such equivalence.
In EU practice, a simplified regime applies to 32 categories of offenses, where the principle of double criminality is not required. However, even in such cases, courts may examine whether basic rights and freedoms are being upheld. This was clearly demonstrated in the case of Aran Muhammad (2019), where Spain requested extradition from Germany on charges of participation in a terrorist organization. The German court denied the extradition, citing a lack of concrete evidence and differences in the legal definitions of the offense.
How Can We Help?
The lawyers in our international team have experience handling cross-border cases and are ready to conduct a comprehensive analysis of the criminal offense in both countries. We compare legal provisions, assess the applicability of the double criminality principle, prepare legal opinions, and defend our clients’ interests both at the pre-trial stage and before international courts.
If there is a possibility that the charges in one country do not have an equivalent in the other jurisdiction, we provide a well-reasoned argument to demonstrate the impossibility of extradition. We also assist in gathering evidence, engage in negotiations with government authorities, and file motions for denial of extradition. In the case of extradition arrest, our lawyers can initiate proceedings for release on bail or the application of alternative measures.
We act swiftly, confidentially, and in accordance with both international and national law. Our goal is to protect the client’s rights and prevent unlawful extradition.
Contact us as soon as possible if you are under threat of extradition. Our team will comprehensively assess your case and propose a tailored defense strategy.
