The Practices of Extradition

The term ‘Extradition’ originates from the Latin words ‘ex’ and ‘tradium’. In the most common application, ‘Extradition’ means, ‘surrender of criminals’, ‘delivery of fugitives’ or ‘handover of fugitives’. Extradition may be defined as ‘surrender of an accused or a convicted person by the State on whose territory he is found to the State on whose territory he is alleged to have committed, or to have been convicted of a crime’.

Oppenheim defined extraditions as ‘delivery of an accused or a convicted individual to the State where he is accused of, or has been convicted or, a crime, by the State on whose territory he happens for the time to be.’

The Need for Extradition

Extradition is a positive step towards suppression of crimes.

Extradition acts as a warning to the criminals that they cannot escape punishment by fleeing to another State.

Criminals are surrendered as it safeguards the interest of the territorial State.

Extradition is based on reciprocity.

Extradition is done because it is a step towards the achievement of international co-operation in solving international problems of social character. (Article 1, Para 3 UN Charter)

Law of Extradition

Law of extradition is a dual law i.e. consisting of and operational in national and international law. The question of extradition is decided by the national courts but on the basis of international commitments as well as the rules of international law relating to the subject.

In Factor v. Labubenheimer, 290 US (1933), the Supreme Court of USA stated that:

“International law does not recognise right of extradition apart from a treaty. While a government may, if agreeable to its own Constitution and laws voluntarily exercise the power to surrender a fugitive from justice to the country from which he has fled, and it has been said that it is under a moral duty to do so…the legal duty to demand his extradition and the correlative duty to surrender him to the demanding country exist only when created by treaty.”

Of present there are no settled laws of extradition. The absence of a uniform code on the principles that govern the extradition of fugitives and criminals, have led to many problems wherein the authorities have had to face challenges in obtaining custody of criminals who had run away from the country. On of such prime example is that of Gangster Abu Salem, who was captured by the Portuguese Police. The Indian authorities claimed the custody of Abu Salem, which was retarded due to the lack of consensus among the both sides in the absence of any law on extradition.

However there have been numerous attempts made to have multilateral, international, regional conventions and treaties on law of extradition. Some of such attempts being –

In 1928, the Draft Convention on extradition was approved but nothing has materialised in concluding a universal convention on extradition.

In 1935, the Harvard law School prepared a draft Convention on the subject.

The Pan American Conference of 1902 produced a treaty signed by 12 States but it was not ratified.

The Asian-African Legal Consultative Body also prepared a draft Convention on extraction at its meeting in Colombo in 1960.

The European Convention on Extradition was signed on December 13, 1957 by the member States of the Council of Europe, and the Arab League Extradition Agreement was approved by the Council of the League of Arab States on September 14, 1952.

In the absence of multilateral treaty or Convention, extradition is done by States on the basis of bilateral treaties wherein provisions are made in accordance with the municipal law by which they have agreed between themselves to surrender the accused or convict to the requesting State in case such a person comes under the purview of a given treaty. These bilateral treaties at international level are supplemented by national laws or legislation at the municipal law. Illustration of such practise –

In India, the Extradition Act, 1962 and the Extradition (Amendment) Act, 1993 lays down rules regarding extradition.

Principles of Extradition

First there shall be the existence of an extradition treaty between the territorial State and the requesting State.

In order to provide assistance to States interested in negotiating and concluding bilateral extradition agreements, the General Assembly on December 14, 1990 adopted a Model Treaty on Extradition by adopting a resolution 45/116. It consists of 18 Articles including the principles of:

non-extradition of a person committing a crime of political nature, or military nature or

if a person would be subjected to torture or cruel, inhuman or degrading treatment or punishment,

double criminality,

the rule of speciality,

surrenders of nationals,

prima facie case, and

Time-barred crimes.

In the absence of any treaty agreements, a person may be extradited in exceptional case on the basis of reciprocity. Illustrations -

Germany and Switzerland extradite a person apart from a formal treaty if their governments and the requesting State have exchanged declarations of reciprocity.

Although India does not have any extradition treaty with Portugal, Portugal agreed to extradite Abu Salem to India after latter gave an assurance that he would not be given death sentence.

Special Cases on Extradition

Extradition of Political Offenders

As per customary international law, political offenders are not extradited but may be granted asylum by the territorial State. This rule is subject to exception.

The rule of non-extradition of the political offenders is based on many considerations which are as follows:

i. It is based on the elementary consideration of humanity. If one is not criminal, but still is extradited, it would amount to violation of principle of natural justice.

ii. If political offenders are extradited, it is feared that they would not be treated fairly.

iii. The object of the political offenders to take shelter in another country is not the same as those of the ordinary criminals. They are not dangerous for the territorial State

Exception:

On some occasions, fugitives take undue advantage of the principle of non-extradition of political offenders by posing them as political offenders. Then it becomes necessary to restrict such acts. Illustration –

Indian Extradition Act, 1962 lays down a comprehensive list of offences which shall not be regarded as political offence.

The Schedule of list of offences contains offences such as offences under the Anti-Hijacking Act, 1982, offences under the Suppression of Unlawful Acts against the Safety of Civil Aviation Act, 1982

Now the question arises as to what is meant by a political offender? It is one of the most arduous task to define ‘Political Offender’. A look at the case of In Re Castioni, (1891) 1 QB 149, would shed some light on the matter –

Castioni who had returned to Switzerland from abroad, joined the revolutionary movement in the Canton of Ticino (Switzerland), and in the course of it, he committed the murder of Rossi, a member of the Government. He pleaded his extradition is not possible as he committed a political offence. His extradition was refused on the finding that his motive for the act was political.

Lord Denman, J. laid down that in order to bring the case within the scope of the Act, and for an offence to be political, it must at least be shown that the act is done in furtherance of, done with the intention of assistance, as a sort of overt act, in the course of acting in a political matter, a political rising, or a dispute between two parties in the State as to which is to have the Government in its hands…

He further held that “the question really is, whether, upon the facts, it is clear that the man was acting as one of a number of persons engaged in acts of violence of a political character with a political object, and as a part of the political movement and rising in which he was taking part…”

In Re Meunier, (1894) 2 QB 415, the petitioner was a French anarchist who was charged with causing explosions at a café and also in certain barracks in France, one of which resulted in death of two individuals. The Principle in Re Castioni was reaffirmed in this case as well.

In Re Ezta, (1894) 62 Federal Court 972,the Federal Court of the USA held that in order to bring an offence within the meaning of the words ‘political character’ it must be incidental to and form part of political disturbance.

In Ex Parte Kolczynski and others, (1955) 1 All ER 31, the narrow and rigid approach adopted in the above cases was improved and given a wider meaning.

Lord Goddard, C.J. and Cassels, J. held that the political offence must always be considered according to the circumstances existing at the time when they have to be considered. It is not necessary that the crime should be committed by an organised party to overthrow the established government. Even membership of a political party was not regarded as necessary.

Doctrine of Double Criminality

As per this doctrine, a crime must be an offence recognised in the territorial as well as in the requesting State. No person is extradited unless this condition is fulfilled. This doctrine helps both the territorial and the requesting States, former in protecting it from fugitive criminals and the latter in enforcing its criminal law. Therefore it is necessary that the acts, for which the requesting nation sought the extradition, must be crime in the territorial nation also.

Limitation - This rule has put a State into a difficult position when it has to request another State for extradition in respect of those offences which do not find place in the list of crimes embodied in a treaty. To overcome this difficulty, some general criterion should be adopted. Illustration -

Article 3, Para 1 of the Extradition Treaty between Indian and Canada, 1987 states that: “An extradition offence is committed when the conduct of the person whose extradition is sought constitutes an offence punishable by the laws of both contracting States by a term of imprisonment for a period of more than one year.

Rule of Specialty

According to this principle, a fugitive may be tried by the requesting State only for that offence for which he has been extradited. In other words, it means that the requesting State is under a duty not to try or punish the Fugitive criminal otherwise.

This rule has been inserted in Article 21 of the Indian Extradition Act, 1962; Article 14 of the extradition treaty between India and United Kingdom and Article 17 of the extradition treaty between India and USA.

In Daya Singh Lahoria v. Union of India, AIR 2001 SC 1716, Justice Patnaik held that a fugitive brought in this country under an Extradition Decree and for no other offences and the Criminal Courts of this country will have no jurisdiction to try such fugitive for any other offence

Prima Facie Evidence

Before a person is extradited, the territorial State must satisfy itself that there is a prima facie evidence against the accused for which extradition is demanded. The aim of this rule is to check fraudulent extradition.

Section 7(4) of the Indian Extradition Act provides for this requirement.

Time – Barred Crimes

Extradition is not granted if the offence for which extradition has to be made has become time-barred. In other words, a fugitive criminal shall not be surrendered, if he has been tried and has served sentence for the offence committed in the territorial State.

Section 31 (b) of the Indian Extradition Act provides that extradition may be refused if prosecution is barred by a lapse of time under the law of the requesting State.

Extradition of Own Nationals

In many cases a person after committing a crime in a foreign country flees back to his own country. Question arises whether a State would extradite such persons. It is a controversial one as the practice differs from State to State. Extradition or non-extradition of its own nationals depends upon the wordings of the extradition treaties. Nationals therefore may be extradited if there is no bar in the national extradition law or in the treaty

Article 5 Para 1.1 of the Extradition Treaty between India and Russian Federation of 2000 lays down that a person may not be extradited if he is citizen of the Requested Party.

Does it mean he goes unpunished?

The answer is negative. Article 7 of the abovementioned treaty provides that in such a case the requested party shall initiate criminal prosecution against any such person for the same offence according to its laws. The requesting party shall transfer the relevant documents and evidence to the requested party.

Military Offenders

Generally, extradition treaties exclude military offences. Illustration -

After the First World War, Holland refused to extradite the German Head of the State W. Kaiser.

Extradition treaty between Indian and Canada of 1987 also provides under Article 52(a) that extradition shall be refused if the offence, in respect of which it is requested, is considered by the requested State to be a purely military offence.

The practice of non-extradition for military offenders has not gained universal acceptance. The General Assembly in 1967 adopted the Declaration on Territorial Asylum where it was laid down that States shall not grant asylum with respect to which there are serious charges for considering that he has committed war crimes.

Extradition for Offence of a Fiscal Character

Offence of fiscal character may mean the offences relating to revenues, taxes, excise, customs etc. Extradition for such offences has not been generally practiced by the States. One must understand that rules of International Law do not prohibit for the extradition for such offences. Illustration -

Article 2, Para 2 of the extradition treaty between India and Russian Federation, 2000 lays down that an offence may be an extradition offence notwithstanding that it relates to taxation or revenue or is one of a purely fiscal character.

Extradition of Foreign Nationals for Crimes Committed in Foreign Countries

A person may be tried and punished only in that State where the crime has been committed. Their extradition cannot take place even in a State where the crime has grave or immediate consequence because of jurisdictional problems. It is, however, desirable, if foreign nationals for their acts committed in foreign countries are extradited to the state whose safety, stability or public order has been threatened by the acts.

One must know that extradition of foreigners committing crimes in foreign countries can take place only when the extradition treaties include a provision regarding it. Illustration -

Article 2 of the extradition treaty between India and Canada, extradition shall also be granted for an extradition offence…committed outside the territory but within the jurisdiction as assessed by the requesting State, if the requested State would, in corresponding circumstances have jurisdiction over such offence.

Extradition and India

In India, extradition is regulated by the Extradition Act, 1962.

Prior to this legislation, since the beginning the extradition related aspects were dealt by the United Kingdom Extradition Act, 1870, which was a law for the whole of the British Empire. Further, the surrender of fugitive criminals amongst the countries of British Empire was regulated by the Fugitive Offenders Act, 1881.

In 1903, the Indian Extradition Act, which remained in force after India became Independent, was enacted to supplement the Extradition Act, 1870 and the Fugitive Offenders Act, 1881 and also to provide for more convenient administration in British India.

Section 2 (d) of the Indian Extradition Act, 1962 defined ‘extradition treaty’ as ‘a treaty made by India with a foreign State relating to the extradition of fugitive criminals and includes any treaty relating to the extradition of fugitive criminal made before the 15th Day of August 1947, which extends to, and is binding on India.

Question arises although India considered itself to be bound by all the extradition treaties of British India, whether other contracting States have also considered themselves to remain bound by such treaties. States like Germany, France and Portugal expressed the view that such extradition treaties are not operative with India.