Extradition Treaty

Extradition is legal surrender of a fugitive to the jurisdiction of another state, country, or government for trial. It is in fact an official process by which one nation or state requests and obtains from another nation or state the surrender of a suspected or convicted criminal. Extradition comes into play when a person charged with a crime under state statutes flees the state. An individual charged with a federal crime may be moved from one state to another without any extradition procedures.

Definition

According to Oppenheim,

Extradition is a delivery of an accused person to the state on whose territory he is alleged to have committed or to have convicted of a crime, by the state on whose territory he happens to be for the time being.

Acc. to Starke,

The term extradition denotes process whereby under treaty or upon a basis of reciprocity one state surrenders to another state at its request the person accused or convicted of a criminal offence committed against the laws of the requesting state, such requesting state being competent to try the alleged offender.

Where extradition is required by law it is more accurately known as rendition (In law, rendition is a “surrender” or “handing over” of persons or property, particularly from one jurisdiction to another)

Nationality is often determined by State Laws. Nationality is the principal link between an individual and International law. Under international law, nationality has often been used as a justification for the intervention of a government to protect another country. However it can be noted that international law does not create a correlative right in favour of the individuals.It creates rights only in favour of the states whose nationals they are. The right is necessarily limited to intervention on behalf of its own nationals because, in the absence of special agreement, it is the bond of nationality between the State and individual which alone confers upon the state the right of diplomatic protection, and it is as a part of the function of diplomatic protection that the right to take up a claim and ensures respect for the rules of international law must be envisaged.The consensus in international law is that a State does not have any obligation to surrender an alleged criminal to a foreign state, as one principle of sovereignty is that every state has legal authority over the people within its borders. Thus there is no universal rule of customary international law in existence imposing the duty of extradition.

Such absence of international obligation and desire of the right to demand such criminals of other countries has caused a web of extradition treaties or agreements to evolve; most countries in the world have signed bilateral extradition treaties with most other countries. No country in the world has an extradition treaty with all other countries; for example, the United States lacks extradition treaties with over fifty nations, including the People’s republic of china, Namibia and North Korea. However is must be noted that there is no recognized practice that there can be no extradition except under a treaty, for some country grant extradition without a treaty. For example, Abu Salem, the prime accused in the Mumbai bomb blast case 1993, was extradited to India from Portugal in Dec 2005 in absence of any Extradition Treaty between India and Portugal. However, finally the treaty was signed after talks between Prime Minister Manmohan Singh and visiting Portuguese President Anibal Cavaco Silva in January 2007.

With this, Portugal became the 18th country with which India has signed extradition treaties, with the others including the US, UK,Nepal, Germany,Canada, Russia, Netherlands and UAE.The treaty with Portugal comes after India accepted its two main conditions that the extradited person would not face either a death sentence or life imprisonment beyond 25 years.

In India Extradition Act,1962 Governs the law relating to Extradition. Chapter III of the act deals with the return of fugitive criminals from Commonwealth countries with extradition agreements. Chapter II deals with the Extradition of fugitive criminals to foreign states and to commonwealth countries to which Chapter III does not apply. Under Section 4 of the act , a requisition for the surrender of a fugitive criminal of a foreign state can be made to the central government. The centre government may if it thinks fit may order a magisterial inquiry. Under section 7(4) if the magistrate is of the opinion that a prima facie case is made out in support of the requisition of the foreign state or commonwealth country, he may commit the fugitive criminal to prison to await the orders of the government. If on the receipt of the report and statement, the central government is of the opinion that the fugitive criminal ought to be surrendered to the foreign state it may issue the warrant for the custody and removal of the fugitive criminal.

Types of Extradition Treaty

There are two types of extradition treaties

i) List Treaty:- The most common and traditional is the list treaty, which contains a list of crimes for which a suspect will be extradited.

ii) Dual criminality Treaty:- used since the 1980s, generally allow for extradition of a criminal suspect if the punishment is more than one year imprisonment in both countries.

Under both types of treaties, if the conduct is not a crime in both countries then it will not be an extraditable offense

Purpose Of Extradition Treaty

a) No criminal should go unpunished

b) Country does not have extra-territorial jurisdiction except in some serious offence.

c) It works as a warning for the criminals.

d) To remove crime from the society.

Essential conditions for extradition

i) The relevant crime is sufficiently serious.

ii) There exists a prima facie case against the individual sought.

iii) The event in question qualifies as a crime in both countries.

iv) The extradited person can reasonably expect a fair trial in the recipient country.

v) The likely penalty will be proportionate to the crime.

Restriction

Extradition is a cumbersome process and involves a lot of technicality and politics in it. Extradition of the accused are restricted due to the following reasons

i) The accused person is a Political criminal

ii) Dual criminality i.e. the act should be a crime in both the countries

iii) Extradition in case, where the country which is being requested for extradition of the accuse apprehends human rights violation, avoid surrendering its own nationals. For example Soering v. United Kingdom, in this case UK did not allow the extradition because of inhuman condition prevalent in the requesting state..

iv) Rule of Speciality – an accuse is extradited for particular crime, and the country which gets back the criminal is entitled to prosecute that person only for the crime for which he was extradited

v) Extradition in military crimes and religious crimes

vi) Extradition of own nationals- Some countries, such as France ,Russian Fedration, Germany, China and Japan, have laws that forbid extraditing their respective citizens. According to Extradition Act 1962, India allows the extradition of its own national in certain cases.

Controversies

1. International Strains:

The refusal of a country to extradite suspects or criminals to another may lead to international relations being strained. Often, the country to which extradition is refused will accuse the other country of refusing extradition for political reasons (regardless of whether this is justified)

Countries where the final decision of extradition lies with the national executive (prime minister, president or equivalent) there the matter become complex. These may significantly slow down the procedures. On the one hand, this may lead to unwarranted international difficulties, as the public, politicians and journalists from the requesting country will ask their executive to put pressure on the executive of the country from which extradition is to take place, while that executive may not in fact have the authority to deport the suspect or criminal on their own. On the other hand, certain delays, or the unwillingness of the local prosecution authorities to present a good extradition case before the court on behalf of the requesting state, may possibly result from the unwillingness of the country’s executive to extradite.

For example, there is at present a disagreement between the United States and the United Kingdom about the Extradition Act 2003 (text here) that dispenses with the need for a prima facie case for extradition.

2. Extradition and abduction

Issues of international law relating to extradition have proven controversial in cases where a state has abducted and removed an individual from the territory of another state without previously requesting permission, or following normal extradition procedures. Such abductions are usually in violation of the domestic law of the country in which they occur, as infringements of laws forbidding kidnapping. Many also regard abduction as violation of international law — in particular of a prohibition on arbitrary detention. A small number of countries have been reported to use kidnapping to circumvent the formal extradition process.

3. ‘Extraordinary rendition’

“Extraordinary rendition” is an extra-judicial procedure and policy of the United States in which criminal suspects, generally suspected terrorists or supporters of terrorist organisations, are sent to countries for imprisonment and interrogation. The procedure differs from extradition as the purpose of the rendition is to extract information from suspects, while extradition is used to return fugitives so that they can stand trial or fulfill their sentence. Critics of the procedure have accused the CIA of rendering suspects to other countries in order to circumvent U.S. laws prescribing due process and prohibiting torture.

Ottavio Quattrocchi Case

Quattrochi, a man of Italian origin, is accused of Bofors commission Bribery case. Presently he is living in Malaysia. India made a formal request to Malaysia to extradite Quattrochi so that he could be tried in India. The lower Court of Malaysia rejected the request for extradition and set Quattrochi free. He had been on bail since his arrest in September 2002. India filed an appeal against this order in the High Court there. India sent an advocate to argue the case and sought the permission of Attorney General there for the appearance of the advocate on behalf of India. But the HC did not allow the advocate to appear.

Problem of extradition of Quattrochi became difficult because India have no extradition treaty with Malaysia. However a two member CBI team was sent to Malaysia to assess the Malaysian lawyer but they too sent back home in 2004, this is because in 2004 UPA came into power and Sonia Gandhi being an Italian had good terms with Quattrochi. Thus when a government goes to such an extent there is no possibility of such case to come to its logical conclusion

Conclusion

Delegates need to decide whether an international treaty is needed in order for the controversy regarding extradition to be resolved. With a treaty such as this, nations would be brought together, resulting in mutual cultural and political interests, as well as continual interaction between the countries. However, an international treaty seems implausible because it would be difficult to incorporate the policies and needs of every nation. Countries need to strengthen international cooperation regarding criminal justice as well as look to the Model Treaty on Extradition as an example. In conjunction with the issue of an international treaty, it is necessary to address capital punishment. Whether or not your country practices the death penalty will define the terms of an extradition agreement.

Reference: International Law and Human Rights By Dr. S. K. Kapoor