CONCEPTUAL FRAMEWORK OF EXTRADITION: INTRODUCTORY The world has grown to be pretty small because of increased access to speedier forms of transport which has enhanced the criminal activities; consequently crimes committed within one country are no longer confined to its own borders. Although crime has no boundaries today but States possess jurisdiction over all persons within its territory and right to punish them for the violation of their laws, is stopped for some time by the escape of the offender into the territory of another State. On the other hand it is the matter of Municipal Law of that State to whose territory the fugitive has escaped. Even the State of refuge has jurisdiction over such an offender but the State on whose territory the crime has been committed is in the best position to try him. These problems of an increasingly global world whether domestic or international have given rise to the concept of the law of extradition. Etymologically, extradition is derived from Latin words ex and traditum, which simply means ‘delivery of criminals’, ‘surrender of fugitives’ or ‘hand over of fugitives.’ 1 The great expansion on the subject of extradition is an evidence of the gradual recognition by nations in their intercourse with one another. Lately, there was trend of providing refuge for offenders against the laws of other States. Domestic criminals were prosecuted and punished but foreign criminals were regarded as objects of peculiar favor and were not given up except in the presence of superior force. Later with the changing time there has been a revolution in the opinion on the subject of extradition. In place of the idea of asylum as a right belonging to the fugitive, there has been established the right of the State either to extradite or to expel any offender who comes within its jurisdiction. This right is recognized by almost all
Transcript
CONCEPTUAL FRAMEWORK OF EXTRADITION: INTRODUCTORY
The world has grown to be pretty small because of increased access to
speedier forms of transport which has enhanced the criminal activities; consequently
crimes committed within one country are no longer confined to its own borders.
Although crime has no boundaries today but States possess jurisdiction over all
persons within its territory and right to punish them for the violation of their laws, is
stopped for some time by the escape of the offender into the territory of another State.
On the other hand it is the matter of Municipal Law of that State to whose territory the
fugitive has escaped. Even the State of refuge has jurisdiction over such an offender
but the State on whose territory the crime has been committed is in the best position to
try him. These problems of an increasingly global world whether domestic or
international have given rise to the concept of the law of extradition.
Etymologically, extradition is derived from Latin words ex and traditum,
which simply means ‘delivery of criminals’, ‘surrender of fugitives’ or ‘hand over of
fugitives.’1 The great expansion on the subject of extradition is an evidence of the
gradual recognition by nations in their intercourse with one another. Lately, there was
trend of providing refuge for offenders against the laws of other States. Domestic
criminals were prosecuted and punished but foreign criminals were regarded as
objects of peculiar favor and were not given up except in the presence of superior
force. Later with the changing time there has been a revolution in the opinion on the
subject of extradition. In place of the idea of asylum as a right belonging to the
fugitive, there has been established the right of the State either to extradite or to expel
any offender who comes within its jurisdiction. This right is recognized by almost all
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the States. The change in opinion on the subject of extradition, though been rapid, has
been the result of modern development.
If extradition does not take place then the fugitive has been given asylum. It is
essential to examine the relation between extradition and asylum. Extradition is a
formal process whereby on the basis of bilateral or multilateral treaties or on an ad
hoc basis the States grant each other mutual judicial assistance in criminal matters.
Asylum means offering sanctuary to those at risk and in danger, in compliance with
State’s obligations under international refugee law, human rights law and customary
International Law. Over time, both areas have undergone significant legal and
practical developments. This being so, the protection that the State grants on its own
territory is a consequence of its sovereignty, but this does not imply that its powers
are in this sense unrestricted. The protection granted by the State in another place
dependent on one of its organs, embassies, consulates, warships etc. is based on an
agreement, custom or act of international courtesy derived from the diplomatic
procedural privilege of immunity. Consequently, the first has, in principle, a general
and permanent character; the second, on the contrary, demands a situation of
imminent danger for one of the most important individual juridical concerns and
implies in itself a temporal duration.2 Asylum today is recognized worldwide as an
institution for the protection and shelter for those displaced to seek refuge in a foreign
country to yours, then, finding no legal certainty and imminent threat to his psycho-
physical integrity, moral decide to leave, either their country of nationality or habitual
residence. The American Heritage Dictionary3 defines asylum as “Protection and
immunity from extradition granted by a Government to a political refugee from
another country.” Article 14 of the Universal Declaration of Human Rights states that
everyone has the right to seek and to enjoy in other countries asylum from
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persecution. The United Nations 1951 Convention Relating to the Status of Refugees
and the 1967 Protocol Relating to the Status of Refugees guides national legislation
concerning political asylum. Under these agreements, a refugee (or for cases where
repressing base means has been applied directly or environmentally to the defoulé
refugee) is a person who is outside their own country's territory (or place of habitual
residence if stateless) owing to fear of persecution on protected grounds. Protected
grounds include race, nationality, religion, political opinions and membership or
participation in any particular social group or social activities. It is said that asylum
ends where extradition starts, asylum and extradition are two sides of the same coin.
India has given asylum to Dalai Lama since 1959.
State’s legal authority to criminalize certain behaviours is based on their
sovereignty and coercive authority to suppress disorder. Furthermore, it is suggested
that if a State has a right to criminalize, it is reasonable to conclude that it has a right
to request the return of fugitives who have allegedly broken those laws the State had a
right to make. However, the right to criminalize is not equivalent to the right to
prosecute and punish. If a fugitive is in another State, the State whose laws allegedly
have been violated will need the permission of the State where the fugitive is located
in order to legally, at least under International Law, prosecute and punish that
individual. This is because each State is sovereign and has its own coercive authority.
When a criminal, after committing a crime in one country escapes to another
country which has no jurisdiction to try him or in a State, which is unable to try him
because all the witnesses are abroad. In order to deal with the accused and not letting
him go scot-free the practice of extradition has been adopted in International Law
which enables a State to extradite individuals to another State to be tried there for
offences against its laws. Extradition also includes the surrender of convicted
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criminals who have escaped before completing their punishment.4 Thus extradition is
an act of an international legal help and cooperation for the purpose of suppressing
criminal activities, consisting of the handing over of an accused or convicted of a
criminal offence, by one State to another which being competent, intends to prosecute
or punish him according to its own law.5
Extradition is defined as the “official surrender of a fugitive from justice,
regardless of his consent, by the authorities of the purpose of criminal prosecution or
the execution of a State sentence.” Thus extradition is a sort of legal assistance
between States in criminal matters and every single extradition is regarded as an
agreement under International Law, notwithstanding the fact that the two State parties
to such an agreement may have established general extradition relations by
concluding a bilateral or multilateral extradition treaties.6 So extradition is an act of
cooperation for the repression of criminal activities of the human beings, is one of the
various modes whereby one sovereign State delivers up the accused criminals of the
fugitive offenders found within its jurisdiction, on demand, to another sovereign State
so that they might be dealt with according to the penal laws of the latter.7 In
contemporary practice extradition means a formal process through which a person is
surrendered by one State to another by virtue of treaty, reciprocity or comity as
between the respective State.8 V.E. Hartley Booth9 has given two assumption of the
extradition definition:
“(a) that the requested State has the power under its own law to deal with a person
found within its jurisdiction by ‘removing’ or ‘surrendering’ him to another
State for a crime he committed or is alleged to have committed outside its
jurisdiction; and
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(b) that there exists between the requested and the requesting State a relationship
which enables the requested State to accede to the request of the latter.”
Extradition was defined by the Supreme Court of India in the following
manner: “Extradition is surrender by one State to another of a person desired to be
dealt with for crimes of which he has been accused or convicted and which are
justiciable in the courts of the other State.”10 From the above, it is clear that
extradition requires the cooperation of at least two States and thus extradition laws
must blend different and often competing legal principles and values. On the one
hand, a State has the right and a need to enforce its laws. On the other hand, States are
sovereign over their territory and absent a specific obligation (via treaty), no State is
required to extradite. Extradition laws acknowledge and respect both these principles.
Therefore, in this global world where we face terrifying threats of violence, terrorism
and other dangerous organized crimes, extradition has become a necessity in order
not to provide any immunity to fugitives in respect of the crimes committed in any
part of the world. However due precautions taken that none is denied the due process
of law and that the fugitive is not made the political victim.
States cooperate with each other through bilateral or multilateral treaties
because it is mutually beneficial for them as well as the world community as a whole.
Therefore, extradition could be a great instrument in maintaining international peace
and security through international cooperation. Extradition is practiced among nations
because of the following reasons –
1. It is the general desire of all the States to ensure that serious crimes do not go
unpunished. A person cannot be punished or prosecuted in a State in whose
territory he has taken refuge because of lack of jurisdiction or because of some
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technical rules of criminal law. Therefore, International Law applies the maxim
‘aut dedere’, i.e. the offender must be punished by the State of refuge or
surrendered to the State which can and will punish him.
2. The State on whose territory the crime has been committed is best able to try the
offender because the evidence is more freely available there and that the State
has the greatest interest in the punishment of the offender and the greatest
facilities for ascertaining the truth.11
3. Extradition acts as a warning to the criminals that they cannot escape
punishment by fleeing to another State. Therefore, it works as a deterrent.
4. Surrender of fugitives to a State where he has committed crime is in the interest
of the territorial State. If a particular State adopts a policy of non-extradition of
criminals they would be fleeing to that State only. The State therefore would
become a place for international criminals, for they may again commit a crime,
if left free.
5. It is based on reciprocity. A State which is requested to surrender the criminal
may request for the extradition of a criminal in future.
6. Extradition fulfills one of the purposes of United Nations as provided under Para
3, Article 1 of its Charter, “To achieve international cooperation in solving
international problems of an economic, social, cultural or humanitarian character
and in promoting and encouraging respect for human rights and for fundamental
freedoms for all without distinction as to race, sex, language or religion.”12 In
this context, it can be said that the main purpose of extradition is to exclude any
State from becoming a haven for escapee from another State and a fugitive
might be punished by the requesting State by getting control over him through
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the process of extradition. So, the States actually cooperate with each other
because it is mutually beneficial for both requesting and the requested State.
Conditions of Extradition:
Extradition as an instrument to combat crime thus consists very largely of
binding international commitments, either of a bilateral or multilateral type. However
a number of attempts have been made to conclude a single convention or a model
code of extradition, so too the need for a common obligation to give extradition would
be well served by a single instrument having world wide application. All such
attempts however have so far met with no success. Generally extradition is a matter of
bilateral treaty and States observe the rules of treaties specifically given in that treaty
in the absence of any international body on extradition. Here, it would be convenient
to consider the nature of legal duty to extradite and the degree to which nations insists
in practice that such a duty can flow only from a binding treaty.13 Hugo Grotius,
forefather of International Law was of the view that it is a duty of a State to extradite
a fugitive criminal or a convicted to the State seeking his return.14
In Factor v. Laubenheimer the court held that, “the principles of International
Law recognize no right to extradition apart from 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 fled… the legal right to demand
his extradition and the correlative duty to surrender him to the demanding State exist
only when created by treaty.”15 However practices of most of the States coincide with
the observation that it is not a recognized principle that there can be no extradition in
the absence of a treaty, but if States want to secure the return of its criminals it must
enter into bilateral treaties.16 In India also extradition is generally governed by
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bilateral treaties however the remark of Supreme Court of India should not be missed
here, “extradition with foreign States is, except in exceptional cases, governed by
treaties or arrangements made.”17 From the above discussion it is clear that the right
to extradite a fugitive rests with the requested State. So, if in certain circumstances if
States do not extradite then they must prosecute the fugitive for the crime he
committed.
Reciprocity:
A number of States while legislating on extradition require a guarantee of
reciprocity as a condition precedent to its operation in the absence of a formal treaty.
One State is obliged to welcome another State’s request in the same way as his
request had been considered. Reciprocity has long been established as international
principle of friendly co-operation among nations.18 This practice demonstrates that
States consider it in their treaties also like the weightage given to the treaty
provisions. Numerous extradition treaties provide that neither of the contracting party
will surrender its own nationals to the other party, these agreements supersede the
principle laid down in a number of earlier court decision considered at one time to be
of classic importance.19 The motive behind such surrender is common interest of the
civilized communities. It has twofold characteristics, first as the guardian of the
domestic interests of the governed then as their agent charged with the maintenance of
good relations with the neighboring States, each one designing –
1) to protect its own citizens from the menace to which their tranquility is exposed
by the immigration of dangerous persons;
2) to promote friendly relations with their neighbors by refusing to permit the
fugitive flying from the justice of the country where the crime was committed to
seek asylum within its borders.20
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Since the principle of reciprocity may lead to non-punishment of guilty party.
Some States never extradite their own subject to a foreign State for committing a
crime abroad, and they themselves punish them.21 In practice, it would be no wrong to
say that States allow extradition to a State from where they have got the fugitive back
to them.
Prima Facie:
It is generally recognized that no person shall be extradited if the evidence
submitted does not justify prima facie against the fugitive criminal.22 Most Civil Law
countries do not accept it as a necessary requirement because such provision is not
provided in their treaties. They consider that prima facie evidence will jeopardize the
performance of justice. They do however request additional evidence including
evidence of guilt if from the circumstances of the case, there is reasonable doubt as to
whether the requested person has in fact committed the offence, or if there is
reasonable suspicion that the offence charged on the fugitive is not genuine.23
Generally a fugitive is not surrendered if prima facie evidence is not established
against him. However, it sometimes becomes controversial. Two schools of thought
exist in this matter. One school asserts that the magistrate has to be satisfied that the
prima facie evidence exists against the accused and the evidence produced before him
is sufficient to cause conviction of the fugitive. In the absence of such evidence the
magistrate must discharge the fugitive.24 The other school claims that extradition
proceedings are not criminal proceedings, nor is the magistrate an adjudicator.
Magisterial enquiry is just a hearing “to determine whether adequate grounds exist to
warrant returning the fugitive to the custody of the requesting State.”25 In a case, it
was held by the Supreme Court of United States, “It was not the function of the
committing magistrate to determine whether Collins was guilty but merely whether
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there was competent legal evidence which according to the law of Louisiana; would
justify his apprehension and commitment for trial if the crime had been committed in
that State.”26 So, a fugitive criminal cannot be surrendered to the State demanding his
extradition if no prima facie evidence of guilt is proved against him.27 The Madras
High Court held in a case “to surrender a fugitive offender without a prima facie case
being made out is opposed to the principle of natural justice.”28
Double Criminality:
In order for an extradition to take place the crime for which extradition is
sought must be a crime in both the requesting as well as the requested State. At the
same time the offence need not have the same name to make it criminal.29 In Factor v.
Laubenheimer and Haggard, the accused was charged in U.K. with the receiving
goods knowing them to have been fraudently obtained. The British Government asked
the US for his extradition under the treaty of 1889, which referred to this offence.
Factor had taken refuge in Illinois and warrant for his arrest was issued there,
however law of Illinois did not recognize this as a crime.30 The decision, however,
had broken new grounds with reference to interpretation of external treaties. On return
to habeas corpus the District Court for the Northern District of Illinois ordered his
discharge from custody, but this order was reversed by the Circuit Court of appeal.
Both the District Court and Circuit Court of Appeal seems to have regarded
extradition as possible only if the offence charged was a crime both, by a law of
Illinois, and by the law of land. The District Court held that receiving money known
to have been fraudently obtained was not a crime by the law of Illinois. On certiorari,
the Supreme Court held that the offence charged was an extraditable crime even if is
not punishable by the law of Illinois.31 No person shall be extradited to any State
unless this condition is satisfied. Before the early 20th century the number of
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extraditable offences was not much as today. Therefore in order to ensure that an
offence is recognized by both the parties, a list of extraditable offences is provided in
the extradition treaty or same is done in the Municipal Laws of an extradition in some
States.
The requirement of double criminality does benefit the relator insofar as he or
she can evade the process of justice of the State in which the conduct is not also
deemed criminal in the requested State. There are three approaches that determine
whether the offence charged even though criminal in both States fall within the
meaning of double criminality-
a) Whether the acts chargeable as an offence regardless of their prosecutability,
b) Whether the acts are chargeable and also prosecutable, and
c) Whether the acts are chargeable prosecutable and could also result in a
conviction.32 The condition of double criminality protects the fugitive from
being prosecuted for a crime which is not accepted as crime between the
contracting parties. Here the condition of double criminality would be
incomplete without mentioning extraditable offences –
Extraditable offences are offences for which extradition can be granted if the
following criteria are met –
i) If there is a treaty, the offence must be listed or designated in that treaty.
ii) If no treaty exists but the extradition is based on reciprocity, the respective
States will mutually recognize that offence as extraditable.
iii) If no treaty or reciprocity exists, but the request is based on comity, the
requested State will rely on its customary practice.
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iv) Furthermore, in all three instances, the offence charged must also constitute
the offence in the requested State i.e. double criminality.33
Extraditable offences are subjected to problem sometimes such as a listed
offence in a treaty may not connote the same idea in both the affected countries, and
the list itself may not be sufficient to cope with changing conditions, as has been
exemplified by the treaties between Great Britain and United States. The Webster
Ashburton Treaty of 1842 between the two listed only six crimes as extraditable
offences, but this list continued to expand during the 19th and 20th centuries and the
extradition treaty between these States, signed in 1932 enumerates twenty seven
classes of extraditable offences covering a wide range of criminal acts. So it is
desirable to have as many offences as possible under the extraditable offences.34
Section 2(C) of the Extradition Act, 1962 defines ‘Extradition Offence’ as follows:
“(i) In relation to a foreign State, being a treaty State, an offence provided for in the
extradition treaty with that State;
(ii) In relation to a foreign State other than a treaty State an offence punishable
with imprisonment for a term which not be less than one year under the laws
of India or of a foreign State and includes a composite offence.” In India a list
of extraditable offences is provided in the treaties mostly.
Rule of Specialty:
This rule protects the fugitive from having to face charges of which he has no
prior notice to his transfer, it enforces the double criminality and also prohibits
extradition for certain categories of offences like fiscal offences, political or military
offences and it also protects from abuse of legal processes of the requested State
which is called upon in extradition to renounce its jurisdiction over and protection of
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the fugitive. Particularly where it seems that the fugitive after return may be
prosecuted or prejudiced on political grounds, it has become the constant practice of
States to require assurances from the State requesting extradition that it will respect
the specialty rule.35
The rationale behind this doctrine rests on the following factors –
1. The requested State could have refused to extradite if it knew that the relator
would be prosecuted or punished for an offence other than the one for which it
granted extradition.
2. The requested State did not have in personance jurisdiction over the relator, if not
for the requested State’s surrender of that person.
3. The requesting State could not have the offender, other than in abstentia, nor
could it punish him or her without securing that person surrender from the
requested State.
4. The requesting State would be abusing a formal process to secure the surrender
of a person it seeks by relying on the requested State who will use its processes to
effectuate the surrender.
5. The requested State would be using its processes in reliance upon the
representations made by the requesting State.
By means of the above mentioned factors the State, seeking extradition of a
fugitive criminal (requesting State) is bound to punish or prosecute the extradited
person only for the offence for which he was extradited.36 This condition was invoked
in United States v. Rauscher where the accused had been extradited upon a charge of
murder, but had been indicted for, and convicted of inflicting cruel and unusual
punishment. Supreme Court denied jurisdiction of trial court and held that, “the
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weight of authority the principle is in favor of the proposition that a person who has
been brought within the jurisdiction of the court by virtue of proceedings under an
extradition treaty can only be tried for one of the offences with which he is charged in
the proceeding for his extradition, until a reasonable time and opportunity have been
given him, after his release on trial upon such charge, to return to the country from
whose asylum he had been forcibly taken under to those proceedings.”37 The rule of
specialty developed because extradition is subject to certain requirements like the type
of offence for which it shall be granted as between the respective States. Without it
the surrendering State will not in effect determine whether the substantive
requirements of extraditable offences and double criminality are fulfilled. The
requirements of double criminality and specialty have been termed the two leading
principles in extradition law.38 It is, therefore, a commitment of a requested State’s
right to determine the extraditability of a person sought for the offence specified. In
fact it protects the fugitive from unexpected prosecution, even though it is principally
advanced as a means of protecting the requested State from abuse of its processes.
Restrictions –
Political Offences: Political offence exception to the non-extradition of political
offenders is generally accepted since the advent of the French Constitution of 1789,
under which asylum shall be granted to those who have exiled to the country for the
cause of liberty and democracy, it has defined all attempts at an exhaustive definition
of political offence; some say that political motive is important with respect to
political offence; other consider political purpose as more important; some lay
emphasis on both, others consider only crimes against the State as political such as
treason, sabotage and subversion.39 However, some consider a crime as political when
committed both from a political motive and at the same time for a political purpose,
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and lastly even some confine the term political crime to certain offences against the
State only such as high treason and alike. But all attempts to formulate a satisfactory
conception of the term have failed.40 Different criteria have been adopted to define it–
i) the motive of the crime;
ii) the circumstances of its commission;
iii) that it embraces specific offences only for e.g. treason or attempted treason;
iv) that the act is directed against the political organization, as such, of the
requesting State;
v) the test followed in Re Meunier, and Re Castioni that there must be two parties
striving for political control in the State where the offence is committed, the
offence being committed in pursuance to the goal, thereby excluding anarchist
and terrorist acts from the category of ‘political crime’.
This exception is seen as a menace to world security because of the growing
terrorist activities. United States President, George W. Bush, while addressing the
nation after 9/11 attacks said that the country who harbors the perpetrators has a moral
duty to hand them over to the United States to stand trial there.41 Immediately after
this attack in 2001 the United Nations General Assembly and Security Council
adopted resolutions calling for international community to work together urgently to
bring to justice the perpetrators, organizers and sponsor of these attacks will held
accountable. Before that in 1994 the United Nations General Assembly also adopted a
declaration on measures to eliminate international terrorism, requiring all States “to
ensure the apprehension and prosecution or extradition of perpetrators of terrorist acts,
in accordance with the relevant provisions of their national law”, as an effective
measure to combat and eliminate terrorism in all its forms and manifestations
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wherever and whomever committed.42This provision has been incorporated in Section
31(a) of the Indian Extradition Act, 1962.
Despite the vagueness of political offence, the principle of non-extradition of
political offenders has long been applied by States for denying the extradition of some
offenders, insomuch as the requested State may always refuse extradition on the sole
ground of political offence. The refusal of some States to extradite terrorists has
focused attention on the problems caused by political offence exception to extradition.
International Commission on the Suppression of Terrorism has moved a step further
toward the removal of political exception to extradition in respect of terrorism, hence
facilitating the effective functioning of the extradition regime in the fight against
terrorism.43
Double Jeopardy:
It is a practice in International Law that no one shall be twice placed in
jeopardy for the same offence. The application of this principle has been different in
the framework of various legal systems. So, there has always been a question of as to
its applicability between legal systems. The reason has been that the conduct which
affected more than one State can be considered as an independent violation because
each State is a separate sovereign. As a result each State seeks its satisfaction
independently of the other affected State and irrespective of whether the offender is
therefore going to be punished again.44 Generally States refuse extradition if the
person sought to be extradited has already been tried and discharged or punished or
still under trial in the requested State for the offence for which extradition is
demanded. Most of the countries in the world have made provisions against double
jeopardy for the same act. Article 9 of the Harvard Research Draft 1935 makes
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provisions in this regard only permissive and not mandatory.45 This provision is
however covered in most of the treaties with India and other foreign States.
In general practice, States require some kind of proof of the offence having
been committed in the territory of the requesting State and proof of the fact that the
person sought is that person who had committed crime. The practice of States varies
with regard to evidence of the guilt of the person claimed which is required to support
the extradition. This is because of the differences of emphasis which is placed at one
side upon the importance of international cooperation in the matter of suppression of
crime and at the other upon the protection of the individual against oppression.46
Lapse of Time:
According to the recommendation of the Harvard Research Draft in its Article
4, a fugitive may not be extradited if he has obtained immunity from prosecution
under the law of the requesting State or that of the requested State where the fugitive
has taken refuge. There can be no controversy over the non-extradition of fugitives
who cannot be tried due to a lapse of time, but there may be controversy with respect
to effective date which may determine whether or not the prosecution is time barred
which may be as follows –
1) the date of request for extradition;
2) the date of receipt of such request by the territorial Government;
3) the date on which the magistrate decides on the preliminary issue;
4) when the magistrate submits his report to the Government recommending the
fugitive’s extradition.
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5) fifteen days from the date of submission of magistrate’s report which is the
normal period before which the fugitive cannot be extradited in a number of
countries; or
6) when the Government orders extradition.
However, the date on which the Government passes the order of surrendering
the fugitives is the crucial date. If the fugitive can be prosecuted on this date, he may
be extradited. But if he has acquired exemption from prosecution by this time, he may
be discharged. From this view point, once a fugitive who had been convicted in
Belgium fled to England. Belgium asked for his extradition but his extradition was
delayed because he had to undergo sentence for the crime that he committed in
England. After the completion of his imprisonment he challenged his extradition on
the plea that the Anglo-Belgium Treaty provided limitation on surrender if the
fugitive had acquired exemption under the English law. The court, obviously, rejected
it on the ground that the committal order was passed before the exemption was
acquired.47 The (Indian) Extradition Act, 1962 in Section 31(b) provides – “A fugitive
criminal shall not be surrendered or returned to a foreign State, if prosecution for the
offence in respect of which his surrender is sought is according to the law of that State
or country barred by time.” This provision is generally incorporated in extradition
treaties. However some treaties make it a mandatory ground and some optional
ground of refusal.
Nationality :
In International Law, States have the right not to extradite their own nationals.
The reason behind this rule is the fear that the offender, being a foreigner in the
demanding State, might have same difficulties in defending himself in a proper
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manner and even otherwise he might not get a fair trial. Some States refuse
extradition of persons living permanently in their country as well. The privilege
provided to the nationals is extended to the residents in order to permit the place of
domicile to try the case and to apply the sanctions that seem to be the best to
rehabilitate the delinquent. However the common law countries allow extradition of
their own nationals, because if their national has committed a crime abroad, it will be
left to him to cope with the difficulties of the proceedings in a foreign country.
Besides, extradition of nationals seems desirable for the common law countries that
do not as a rule, prosecute for offences committed abroad.48 United Nations Model
Treaty on Extradition makes the surrender of nationals as an optional ground to refuse
the extradition request.49 In India this obligation is regulated by treaty provisions.
States such as France, Germany and Italy have adopted the principle of never
extraditing their own nationals to a foreign State who come back after committing a
crime abroad, but have the practice of punishing them with themselves. However
Great Britain does not have such a practice. In a treaty entered into with United States
of America and Britain the nationals of each State can be surrendered to the other.
Even Great Britain surrendered Tourville (a British national) to Austria who after
having murdered his wife in Tyrol, had fled to England. At any cost no duty to return
their own nationals is recognized unless the treaty expressly stipulates such
surrender.50
Other Restrictions:
Some States refuse to extradite the fugitive if death penalty may be imposed
upon them. If this penalty is not provided for by the law of the requested State or is
normally not carried out, unless the demanding State gives sufficient assurance that
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the death penalty will not be carried out. So long as the death penalty is retained by
some States, it seems to be both necessary and desirable.51 Section 34C of the
Extradition (Indian) Act, 1962 provides that, “Notwithstanding anything contained in
any other law for the time being in force, where a fugitive criminal, who has
committed an extradition offence punishable with death in India is surrendered or
returned by a foreign State on the request of the Central Government the laws of that
foreign State do not provide for a death penalty for such an offence such fugitive
criminal shall be liable for punishment of imprisonment for life on that offence.”
From the above Section it seems that death penalty is not as such prohibited
everywhere but there is a general tendency towards its abolition. Accordingly, an
increasing number of States are precluded under the relevant protocols and their
national legislation from surrendering anyone to a risk of capital punishment. As
noted above it is established practice for the requested State to seek and obtain
assurances by the requesting State to the effect that the death penalty will not be
sought or, if it has already been imposed, not executed. If such assurances effectively
eliminate the risk of capital punishment then extradition is normally considered to be
compatible with the requested State’s human rights obligations.
Some States refuse to extradite if fugitive will be subject to torture or inhuman
behavior or if the case is of trivial nature. As a peremptory norm of International Law,
the prohibition of torture is binding on all States. It applies in all circumstances,
including during armed conflict and in times of national emergency. The prohibition
of extradition to a risk of torture, cruel, inhuman or degrading treatment or
punishment has been confirmed in the jurisprudence of international and regional
human rights institutions as well as national courts. Assurances by the requesting
State that it will not subject the wanted person to such treatment will not normally be
21
sufficient to exonerate the requested State from its obligations under human rights
law. Extradition is also refused for the reason of unfair trial in the requesting State.
The obligation to safeguard the wanted person’s right to a fair trial under international
and regional human rights instruments requires the requested State to assess the
quality of the criminal proceedings which would await him or her if surrendered.
Methods other than Extradition:
Extradition is the process which involves surrender of an individual by a
sovereign State to another sovereign State who is found within the territory of the
latter accused of having committed a crime in the territory of the former which
intends to punish him.52 Extradition is the legal procedure through which the States
acquire jurisdiction over the guilty party. However sometimes other methods are
adopted to get the fugitive back either because there is no extradition treaty between
the States or sometimes the process is too expensive or the State has to get hold of an
political offender which is otherwise not possible or if the treaty exists, that offence
for which extradition is in question is not included in extraditable offences.
Abduction or Kidnapping:
Abduction is the process of removal of a person from the jurisdiction of one
State to another by force or by fraud. This process involves complete absence of
regular proceedings sanctioned by the law of the place whence the abduction was
effected; the motive behind it is to remove their victim so speedily that he will have
no chance to claim the protection of the law. It may be carried out by private persons
with no official connection with the foreign State but with motives of idealism or
expectations of reward.
22
Abduction is an illegal act by the Municipal Law of the place where it occurs
and by International Law. If an attempted abduction is detected, the law of the host
State would give a remedy in the nature of habeas corpus.53 If it is carried out
undetected, it involves three distinct infractions of the law.
1) Violation and infringement of the territorial integrity and sovereignty of the
State concerned,
2) Violation of the human rights of the person abducted, and
3) Disruption of the public order.
Although International Law provides little guidance to State’s practice in the
solution of the legal problems resulting from such attempts, where a fugitive has been
removed from the jurisdiction of the State of refuge either directly by the officials of
the demanding State or by individuals with the collaboration of its officials, there is
prima facie a breach of International Law for which the seizing State is liable to the
State of refuge for violation of its territorial sovereignty. Such a violation of foreign
territory undoubtedly engages the responsibility of the State of arrest, which is under a
clear duty to restore the prisoner and to punish or extradite the offending offices. This
obligation appears to have been almost uniformly acknowledged in cases where the
State of refuge has made a diplomatic reclamation. In 1841 the British Government
ordered the return to the United States of one Gorgan who had been seized by British
soldiers at Albury, Vermont, and carried off to Canada.54
In Collins v. Frisbie, the Sixth circuit court in 1951 granted relief to a State
prisoner on a petition for federal habeas corpus alleging seizure and forcible
abduction into the convicting State by police officers acting boy and their territorial
jurisdiction. Similarly in 1933, in the Re Jolis where a Belgian subject was removed
23
by French officials from Belgian soil and was brought to France for trial, the French
Tribunal Correctional d’Avesness, relying upon Article 23 of the Law of Extradition
of 1927 held that the accused had a right to be released on the ground that, “the arrest,
effected by French officers on foreign territory, could have no legal effect whatsoever
and was completely null and void.”55 One of the renowned cases is of Eichmann who
was abducted from Argentina by Israeli agents in 1961 and prosecuted there for his
crimes against Jews.56 It is a controversial issue of International Law relating to
extradition where a State has abducted and removed an individual from the territory
of another State without previously requesting permission, or following extradition
procedures. Such abductions are usually in violation of the domestic law of the
country in which they occur; it is also regarded as violation of International Law.57
Expulsion or Deportation:
Expulsion stays for the termination by a State of an alien’s legal entry to
remain, which is often based upon the ground that the alien is considered undesirable
or a threat to the State; however deportation is the removal from a State of a person
who illegally entered the territory of that State. Deportation is the exercise of the
sovereign right of the territorial State to expel any alien whose presence is not
considered desirable within its territory. It is done to protect the interests of State and
not cooperation to suppress crime as opposed to extradition. So the process of
deportation involves the removal of a person from a State whose presence is either
unlawful or not in favors of public welfare. Such a procedure, although not illegal, is
definitely irregular and is frequently deprecated. There is an outcry even in cases
where coincidentally, as distinguished from an international act, the deported man
also happens to be the wanted man in the State of his domicile. This gives the
impression that the process of deportation was resorted to in order to secure the
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extradition of a person who could not otherwise have been extradited. Soblen’s
deportation order made by the Home Secretary in the United Kingdom, caused such a
hue and cry that its vibrations were felt even after the man had died and could not
therefore, be deported.58 From the information above, it is clear that the relationship
between extradition and deportation is very complex. When considering it, it is vital
to distinguish between the legal situation of the State seeking the person’s return to it
for the purposes of prosecution or enforcement of a sentence on one hand (often the
State of nationality of the person sought) and the legal situation of the State that is to
return (in one way or the other) that person to the first State or at least the person's
removal from its own territory, in relation to the State seeking the person’s return to
it. The Supreme Court of India once had the occasion to distinguish between the
‘expulsion’ and ‘extradition’ under the Foreigners Act, 1946.
“The Foreigners Act confers the power to expel foreigners from India. It vests
the Central Government with absolute and unfettered discretion and as there is no
provision fettering this discretion in the constitution an unrestricted right to expel
remains the law of extradition is quite different. Because of treaty obligations it
confers a right on certain countries to ask that persons who are alleged to have
committed certain specified offences on the territories, or who have already been
convicted of those offences by their courts, he handed over to them in custody for
prosecution or punishment. But despite that the Government of India is not bound to
comply with the request and has an absolute and unfettered discretion to refuse.”59 In
the case of expulsion, no idea of punishment is involved, at any rate, in theory, and if
a man is prepared to leave voluntarily he can ordinarily go as and when he pleases.60
But in case of ‘extradition, he does not leave a free man. He remains under arrest
throughout and is merely handed over by one set of police to the next.61 Where there
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are no extradition arrangements or these are inapplicable or seen as ineffective, some
States will resort to other measures in order to apprehend the fugitive- abduction or
‘irregular rendition’. This may be conducted in a particular case, for e.g. Eichmann
case, or even as a State policy for certain cases, such as the US anti-terrorist rendition
program. Such activities can, but do not have to, violate International Law, depending
on whether the territorial sovereignty of another State and the human rights of the
individual concerned are respected or not.62
Informal or Mistaken Extradition:
There can be circumstances where a fugitive criminal is surrendered to a
foreign State without proper extradition proceedings, as happened in Savarkar’s case.
He was an Indian revolutionary who was being transferred to India on charges of
treason as per British allegation. Somehow he managed to escape but later, he was
handed over to the Captain of British strip by the Captain of French ship by mistake.
When Government of France demanded him it was refused on the ground that
International Law does not impose any obligation upon the State whereby on the
above ground the criminal may be returned.63 In such cases it is suggested that
persons whose custody has been obtained in this way should be returned to the State
from whose territory they have been seized. Issues of International Law relating to
extradition have proven controversial in cases where a State has removed an
individual from the territory of another State without previously requesting
permission, or following normal extradition procedures. Such removals are usually in
violation of the domestic law of the country in which they occur, as infringements of
laws forbidding kidnapping.
26
Undoubtedly, extradition is at present the most effective means of cooperation
between States in criminal matters and extradition treaties will remain of primary
importance as the only source of a State’s duty to extradite, whereas criminal
prosecution, on the basis of extradite or prosecute, for cases where extradition has
failed remains of little practical importance, if only on grounds of technical difficulty.
There are various conditions and restrictions which need to be satisfied in getting a
fugitive back. Recent efforts to conclude specific agreements on the transfer of
criminal proceedings and the extradition of foreign criminal judgments might,
however shift the relative weights of the different components of mutual assistance in
criminal matters. The elaboration of extradition relations in detail depends to a great
extent on the relations between the respective States in general and the mutual
confidence in their legal and judicial systems in particular. Extradition relations
between States having comparable legal orders and sharing the same values will and
should be closer and more flexible and fewer exceptions and safeguards should be
needed. There are methods other than extradition like abduction or expulsion to get a
fugitive criminal back where the crime is committed. So, where greater differences
exist between States, more safeguards are necessary; in some instances States would
be best advised to refrain from entering into general extradition agreements which
often confine themselves to minimum standards abstaining from providing the
necessary details and being subject to reservations and instead to grant extradition,
when appropriate, on and ad hoc basis subject to the rules of the domestic extradition
law of the requested State or on bilateral extradition treaties, which are more flexible
in this respect.
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References
1. R.C. Hingorani, The Indian Extradition Law, Asia Publishing House, Bombay,
1969, p. 5
2. M.C. Bassiouni, A Treatise on International Criminal Law, Vol. II, Charles C
Thomas, USA, 1970, p.346
3. The American Heritage Dictionary of the English Language, Houghton
Mifflin Company, New York, 2000, p.40
4. Michael Akehurst, A Modern Introduction to International Law, Allen and
Unwin Ltd., London, 1984, pp. 104-105
5. Satyadeva Bedi, Extradition in International Law and Practice, Vol. I,
Discovery Publishing House, New Delhi, 1991, p. 2
6. Encyclopedia of Public International Law, Vol. 2, Elsevier, 1995, p. 237
7. Satyadeva Bedi, Extradition: A Treatise on the Laws Relevant to the Fugitive
Offenders within and with the Commonwealth Countries, Hein & Co., New
York, 2002, p.1
8. M.C. Bassiouni, International Extradition and World Public Order, Oceana
Publication, New York, 1974, p. 2
9. V.E. Hartley Booth, British Extradition Law and Procedure, Vol. I, Sijthoff
and Noordhoff, USA, 1980, p. LI
10. State of West Bengal v. Jugal Kishore Here & Anr AIR 1969 SC 1171, 1175
