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Sunday, August 29, 2010

International Law - Extradition

INTRODUCTION

Extradition may be briefly described as the surrender of an alleged or convicted criminal by one State to another. More precisely, extradition may be defined as the process by which one State upon the request of another surrenders to the latter a person found within its jurisdiction for trial and punishment or, if he has been already convicted, only for punishment, on account of a crime punishable by the laws of the requesting State and committed outside the territory of the requested State .

The purpose of extradition is to bring the individual within the requesting country’s boundaries in order to make a determination of guilt or innocence, or to impose punishment . Extradition plays an important role in the international battle against crime. It owes its existence to the so-called principle of territoriality of criminal law, according to which a State will not apply its penal statutes to acts committed outside its own boundaries except where the protection of special national interests is at stake. In view of the solidarity of nations in the repression of criminality, however, a State, though refusing to impose direct penal sanctions to offences committed abroad, is usually willing to cooperate otherwise in bringing the perpetrator to justice lest he goes unpunished.

The practice of extradition originated in the ancient middle- and far-eastern civilizations as a matter of courtesy and good will between sovereigns. The earliest recorded extradition treaty dates to 1280 B.C., between Ramses II, the Pharaoh of Egypt, and King Hattusli III of the Hittites, and provided for the mutual return of criminals . The first, similar provision appeared in Western Europe in 1174 A.D., between Henry II of England and William the Lion, King of Scotland. Over the following centuries, however, extradition remained an ad hoc arrangement between sovereigns, performed as a need arose.

During the 17th to 19th centuries, the Chinese Qing State extradited criminals from neighbouring Korea, Vietnam, and Burma on the basis of reciprocity . The Chinese authorities extended their control over the rendition process by instructing the returned individual’s government as to the proper method of punishment. In general, ancient treaties for the surrender of criminals targeted what today would be considered political offences. As late as the end of the seventeenth century, political offenders were not granted any special protection from extradition.

Within the last fifty years, however, various international agreements have propelled the importance of individual rights to the forefront of international law . International agreements, including the Universal Declaration of Human Rights (“UDHR”) and the International Covenant on Civil and Political Rights (“ICCPR”) recognized the individual’s standing to assert violations of her rights . The modern trend is to expand human rights and to eliminate traditional barriers to individual standing . The recent narrowing of the political offence exception in extradition law and the circumventing of proper procedure, at a time when human rights is experiencing unparalleled growth, represent grave threats to individual rights .

HISTORICAL OVERVIEW
The practice of extradition cannot be said to be new as it dates back to at least the thirteenth century B.C. when an extradition treaty was signed between an Egyptian Pharaoh and a Hittite King .

Extradition treaties were later used by European monarchs to gain custody over fugitive political offenders, this practice has existed within the United States since the country’s origin, and internationally since the first diplomatic agreement . The practice of extradition has existed for over three thousand years .

As far as non western countries are concern this practice originated in some of the world’s earliest, civilizations such as the Egyptian, Chinese, Chaldean, and Assyro-Babylonian . The practice originated in the ancient middle- and far-eastern civilizations as a matter of courtesy and good will between sovereigns. The earliest recorded extradition treaty dates to 1280 B.C., between Ramses II, the Pharaoh of Egypt, and King Hattusli III of the Hittites, and provided for the mutual return of criminals . The first, similar provision appeared in Western Europe in 1174 A.D., between Henry II of England and William the Lion, King of Scotland. Over the following centuries, however, extradition remained an ad hoc arrangement between sovereigns, performed as a need arose.

Historically, sovereigns sought the return of persons guilty of crimes of lèse majesté. Such crimes included treason, attempts to assassinate the monarch, and any behavior the government considered against the monarch or against the state's Political well-being .

Traditionally, extradition law is based on treaties. Two states typically agree in a bilateral treaty to surrender to each other fugitives charged with any offences considered extraditable under the agreement. A state seeking extradition of a fugitive (the requesting state) addresses its requests to the government of the state where the fugitive is present (the requested state), and the government invariably acts upon these requests. Domestic extradition statutes occasionally supplement substantive treaty law, but in general they merely specify extradition procedures .

The extradition law that developed from these beginnings assigns a major role to government officers, leaving a very restricted one for courts. The law prevents judges from inquiring into judicial and penal conditions in the requesting country and creates a pattern of judicial deference to government decisions at all levels of the process. It was after early nineteenth centuries that sovereigns began to concentrate on extradition treaties for common crimes because of the development of new, better, and quicker forms of transportation, which allowed criminals greater ability to commit crimes over a larger region .

RISE OF EXTRADITION TREATIES
Numerous treaties have been concluded stipulating the cases in which extradition shall take place. Under them, individual prosecuted for the more serious crimes, political crimes excepted, are surrendered to the prosecuting state, if not punished locally. But this solution of the problem of extradition was little known before the nineteenth century. Matters began to undergo a change in the eighteenth century, first as between neighboring states and then more widely as international travel developed in the nineteenth century giving wanted criminals greater opportunities to flee. Treaties of extradition thus became necessary and a great many now exist.
There also developed a tendency towards the conclusion of multilateral extradition treaties between states in certain parts of the world. The first were the treaties between American states in 1889 and 1902, leading eventually to the inter-american convention on extradition 1981. A council of Europe convention on extradition was concluded in 1957 and similar convention have been concluded between Arab states and also between certain African states.

Sometimes states may be find it convenient to replace formal extradition arrangements with some simpler system for the arrest and return of wanted criminals particularly, for example, if the states concerned have a common frontiers across which people move with relative ease. Thus as between the united kingdom and the republic of Ireland, a wanted person may be arrested in one state and sent to the other on the basis of warrant issued in the later state and backed in the extraditing state. Extradition may also sometimes take place as a matter of comity in absence of an extradition treaty , if the states concerned are willing to allow it, although this has occasioned protests from a third side whose nationals are extradited in such circumstances.

Where extradition take place in the absence of treaty, the state granting extradition may attach special importance to assurance of reciprocity on the part of requesting state, which assurance may themselves be in such terms as to constitute an international agreement. The surrender of fugitive criminals to the authorities of another state may also be provided for in treaties which not general extradition treaties in usual sense, but which, in dealing with some specific subject, contain provision for the return of people alleged to have committed infractions of the law relating to the subject matter of the agreement. In such cases failure to use extradition procedure will not usually deprive the courts of the prosecuting state of jurisdiction over the accused, nor will the failure to observe in all their detail the requirement of the extradition procedure where the accused has been extradited to the prosecuting state. Where the criminal, who has succeeding in escaping into the territory of another state, is erroneously handed over, without the formality of extradition having been complied with, by the police of the local state to the police of the prosecuting state, the permanent court of arbitration held in sarvakar case , that the local state cannot demand that the prosecuting state shall send the criminal back and ask for his formal extradition.


Several multilateral treaties dealing with the offences evoking the general contamination of the international community have adopted the practice of obliging the parties either to extradite persons found on their territory but wanted on trail for such an offence by another party, or to try such persons themselves. This principle of aut dedre aut judicare has, been adopted in the Genocide convention 1948.


NATIONAL EXTRADITION LAWS
Many states have enacted special laws, which enumerate those crimes for which extradition shall be granted and asked in return, and which at the same time regulate the procedure in extradition cases. These laws furnish the basis for the conclusion of extradition treaties which will be framed in terms consistent with said laws.

The first state with such an extradition law was Belgium in 1833, which remained, however, for more than a generation quite exceptional. The united kingdom introduced its first extradition act in 1870. this act, as subsequently amended, has furnished the basis for the extradition treaties between the united kingdom and a large number of other states. It has now been replaced by Extradition Act, 1989, which consolidates the extradition law of the United Kingdom.

States which poses no extradition laws and whose constitution does not mention the matter, leave it to their government to conclude the extradition treaties according to their discretion. In these countries the governments are usually competent to extradite an individual, even if no extradition treaty exists.


EXTRADITION OF NATIONALS
In principle any individual whether he is a national of the prosecuting state, or of the state which is required to extradite him or of a third state, may be extradited. Many states, however, such as France and Germany never extradite on of their own nationals to a foreign state, but themselves have the power to punish them for grave crimes committed abroad. Other state including United Kingdom, have not adopted this principle and in the absence of treaty provisions to the contrary, make no distinction between their own nationals and other persons whose extradition from their territory is requested.

A conflict between international law and a states internal law may arises if an individual must be extradited according to an extraordinary treaty, but cannot be extradited according to the internal law of the state from which extradition is demanded.

EXTRADITABLE CRIMES
International law allows a state to grant extradition for any crime it thinks fit. Extradition is, however, a procedure usually appropriate only for the more serious offences and accordingly, the internal extradition law of most states limits the extraditable crimes either to certain specified crimes or to crimes subject to a specified level of punishment. Similarly a state subject to its treaty obligation, may refuse extradition for any crime. States which have extradition laws needs to ensure that their extradition treaties are consistent with those laws; where the laws limit the crime for which extradition may be granted that limitation will be reflected in the treaties, either by the inclusion of an agreed list of extraditable crimes or by an agreed level of punishment to which a crime must be subject in order to be extraditable or by a combination of the two. The specification of the extraditable crimes in a bilateral treaty but also by multilateral treaties dealing with the suppression of certain offences, which may provide for those offences to be deemed included in extradition treaties concluded by the contracting parties.

A further limitation upon the crimes for which extradition is granted is the requirement of ‘double criminality’ which is usually included in the extradition treaties, and according to which extradition is only granted in respect of a deed which is crime according to law of the state which is asked to extradite, as well as of the state which demands extradition. Although not necessarily a crime of the same in each, so long there is substantial similarity between the offences in each state. However, it is not for the court of the requested state to try the case on its merit as if it were a criminal prosecution; they usually only need ascertain whether the evidence submitted is prima facie sufficient to justify judicial proceedings against the accused, although not even this degree of evidence is required by some states.


Political criminals are, as a rule, not extradited and according to many extradition treaties, military deserters and person who have committed offences against religion are likewise excluded from extradition; many states refuse extradition if the death penalty will be enforced for the crime. On the other hand, although it comes close to enforcing foreign revenue laws, some treaties provide for extradition for fiscal offences.


CONDITIONS FOR EXTRADITION
Extradition is granted only if asked for , and after the formalities have taken places which are stipulated in the treaties of extradition and the extradition laws, if any. The usual procedure is for there to be a request for extradition submitted through diplomatic channels, identifying the fugitive criminals stating that a warrant for his arrest has been issued and outlining the facts of the offences: in urgent cases there is often a procedure for provisional arrest pending the receipt of the more formal documents requesting extradition. Extradition is effected through the handing over of the criminal by the police of the extraditing state to the police of the prosecuting state. The law of the united kingdom, and of many other states provides an opportunity for a wanted person to have the lawfulness of his extradition determined by the courts; but this is primarily a matter of the internal law of each state, and not a requirement of customary international law. Furthermore, where a state is a party of treaties for the protection of human rights it will be necessary for it to ensure that the grant of extradition by it in any particular case is consistent with its human rights obligation, which may be relevant even if the requesting state is not also a party to the human rights treaty in question.
Most extradition treaties embody the so called the principle of specialty, whereby it is a condition of extradition that the surrendered individual shall be tried and punished for those crimes exclusively for which his extradition has been asked and granted or for those at least which the extradition treaty concerned enumerates. If nevertheless, an extradited individual is tried and punished for another crime, the extraditing state has a right to complain. Where a state is by treaty committed to observe the principle of specialty, another state will not assume that it will act in bad faith and ignore that commitment if a fugitive is extradited to it. In those cases where the same set of facts can constitute several offences it is not unusual to provide in treaties that the accused may be tried not only for the offences specified in the request for the extradition but also for any other lesser offence proved by the facts established to the extraditing state in connection with that request.


INDIAN POSITION
In India the provisions of Indian Extradition Act, 1962, govern the extradition of a fugitive from India to a foreign country or vice-versa. The basis of extradition could be a treaty between India and a foreign country. Under section 3 of this Act, a notification could be issued by the Government of India extending the provisions of the Act to the country/countries notified.

Information regarding the fugitive criminals wanted in foreign countries is received directly from the concerned country or through the General Secretariat of the ICPO-Interpol in the form of red notices. The Interpol Wing of the Central Bureau of Investigation immediately passes it on to the concerned police organizations. The red notices received from the General Secretariat are circulated to all the State Police authorities and immigration authorities .

The question arises that what action, if any, can be taken by the Police on receipt of an information regarding a fugitive criminal wanted in a foreign country. In this connection the following provisions of law are relevant:
 Action can be taken under the Indian Extradition Act Article No. 34 (b) of 1962. This act provides procedure for the arrest and extradition of fugitive criminals under certain conditions, which includes receipt of the request through diplomatic channels ONLY and under the warrant issued by a Magistrate having a competent jurisdiction.

 Action can also be taken under the provisions of Section 41 (1) (g) of the Cr.P.C., 1973 which authorizes the police to arrest a fugitive criminal without a warrant, however, they must immediately refer the matter to Interpol Wing for onward transmission to the Government of India for taking a decision on extradition or otherwise.

In case the fugitive criminal is an Indian national, action can also be taken under Section 188 Cr.P.C., 1973 as if the offence has been committed at any place in India at which he may be found. The trial of such a fugitive criminal can only take place with the previous sanction of the Central Government.

As far as India is concern this issue is always in light because of number of cases, such as Nadeem’s extradition for involvement in Gulsan Kumar Murder case & demand of Dawood for involvement in Bombay Bomb Blast of 1992, in which we are still waiting for positive response. When one talks of extradition, quite a few names come to mind. The most tragic case was that of Rajan Pillai, who was sentenced to jail in Singapore for economic offences. He, however, took refuge in India. The Singaporean government requested his extradition. He would possibly have been sent back to Singapore, but he died under mysterious circumstances while in judicial custody in the Delhi jail. Underworld don and prime accused in the Mumbai blasts Abu Salem, who has been extradited from Portugal along with wife Monica Bedi is also a land mark in this regard.
Most of us know about the concept of extradition rightly or wrongly with respect to the cases named above but this tem paper examines one of the important aspect of extradition which is in relation with extradition of political offenders which though is not in much lime light as far as Indian Public is concern but much debated among the others as well as among intellectuals in India.

Intervening in the discussion on the draft resolution on international terrorism in the ongoing 70th Interpol Annual General Assembly at Budapest(2001) , the CBI-Interpol India chief, Mr. P.C. Sharma, urged member-countries to give serious thought to putting in place certain legislation relating to extradition of wanted terrorists.
“It is not sufficient to merely locate and identify suspected terrorists. At this stage, it is imperative on all nations to demonstrate the will to help in the fight against terrorism. This can be done only by handing over the wanted persons who could be made to face fair trial and answer for the consequences of their action,”

As India has not been successful in getting criminals who have taken refuge in Western countries returned to the subcontinent, there is a growing feeling in government circles that those countries are siding with the accused.

ABU SALEM'S EXTRADITION
 The Story
When Abu Salem entered the US, they tipped off the Federal Bureau of Investigation (FBI), which tailed him. Abu managed to get out of the US and entered Portugal through Lisbon after rigging up his papers. They went on to tip the Lisbon authorities that immediately seized the Indian gangster. And, the tables turned. Abu Salem found himself on the receiving end and, the Mumbai police, on their part had, scores to settle with the gangster whose extradition from Portugal is shrouded with as much controversy as his role in the city's blackest blasts .

The extradition of underworld don Abu Salem was a tribute to the co-ordination among the Central Bureau of Investigation, the ministry of home affairs, the ministry of external affairs and the Indian embassy in Lisbon, Portugal, and was made possible by the excellent co-operation received from the Portuguese authorities. The extradition was a landmark event for many reasons .

 The Difficulty& The International Obligations:
There is no extradition treaty between India and Portugal. The absence of such a treaty initially created legal difficulties. Therefore this becomes an area where political considerations play a prominent role, unless there is an applicable bilateral extradition treaty.

Indeed, a country does not need a treaty to decide that a fugitive found within its jurisdiction should be extradited to another country that requests extradition. It can, if it wants to, take that decision without any treaty obligations whatsoever, even by exercise of executive discretion. Where there is a bilateral extradition treaty, the states party to it normally goes by its terms. The process of extradition usually involves interposition of the Judiciary in both countries, and this has permitted the emergence of some discernible principles of international law governing extradition .

International law recognizes four points as a basis of exercise of criminal jurisdiction by a sovereign state, namely, territoriality (the state where the offence has been committed), nationality (the national state of the offender or the accused), the protective principle (the state whose essential economic or other interests have been directly and adversely affected by the offence), and universality (the offence being an international crime) .

While these are situations largely governed by the political relations between the two countries involved, yet even a political/administrative decision to extradite or deport is likely to go before the law dispensing authorities including the judiciary in the extradition-requested state .

Indian government sought his extradition under the United Nations Convention on Suppression of Terrorism of 2000 under which all member nations have to help each other in the war against terrorism. Portugal and India are both signatories to the Convention. In the meantime, the Portuguese court sentenced Salem and his girlfriend Monica Bedi to four years imprisonment for illegally entering and staying in Portugal on forged passports. The court also ordered that their extradition could be made only after they have completed their prison term. When the CBI got to know of Salem's plea the Portuguese lawyer representing the Indian government rushed to the court to remind the judge about his previous order about extraditing the duo on completing their 4-year sentence .


JUDICIAL APPROACH: OBLIGATING THE EXTRADITION AGREEMENT

The Portuguese court ordered their extradition after the Indian government, through its lawyer, gave a solemn assurance that if convicted they would not be sentenced to death. The assurance was given since European law prohibits extradition of any accused to such a country where capital punishment is in vogue.

It is essential here to give a glance at the earlier decided case of Gill & Sandhu . In early 1987, the government of India requested the United States to extradite Ranjit Singh Gill and Sukhminder Singh Sandhu, claiming that the two were responsible for robberies and murders committed in the Punjab, in India. Magistrate Ronald J. Hedges, however, found that he could not consider evidence of the mistreatment to which Gill and Sandhu could be subjected if returned to India.

The court stayed their release pending an appeal by the Indian government. In reaching his decision, Judge Robert J. Sweet considered four primary issues: (1) the scope of the district courts’ review of extradition proceedings; (2) the fairness of the hearing procedures; (3) the probable cause determination; and (4) the possible antipathetic treatment awaiting Gill and Sandhu in India.

Also in the case of Daya Singh Lahoria v. Union of India The grievance of the petitioner Daya Singh Lahoria, in the Writ Petition is, that the Criminal Courts in the country have no jurisdiction to try in respect of offences which do not form a part of extradition judgment by virtue of which the petitioner has been brought to this country and he can be tried only for the offences mentioned in the Extradition Decree.
It was the contention of the petitioner that he cannot be tried for the offences other than the offences mentioned in the extradition order as that would be a contravention of Section 21 of the Extradition Act as well as the contravention of the provisions of the International Law and the very Charter of Extradition treaty.
Therefore in view of these it is clear that both on international law as well as the relevant statute in this country entail that a fugitive brought into this country under an Extradition Decree can be tried only for the offences mentioned in the Extradition Decree and for no other offence and the Criminal Courts of this country will have no jurisdiction to try such fugitive for any other offence.

CONCLUSION

As per the Portuguese Constitution, no one can be extradited in respect of offences punishable by death penalty under the law of the state requesting extradition . Hence, Section 34 C of the Indian Extradition Act, 1962, will be applicable which states 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.”

And therefore the laws of that foreign state do not provide for the death penalty for such an offence, such fugitive criminal shall be liable for punishment for life only for that offence. Extradition has been defined by Oppenheim as “the delivery of an accused or a convicted individual to the State on whose territory he is alleged to have committed, or to have been convicted of, a crime by the State on whose territory the alleged criminal happens for the time to be.” The right to demand extradition and the duty to surrender an alleged criminal to the demanding State is created by a treaty.

As the question of surrendering an alleged criminal to the demanding State always involves the question of human rights, therefore the essence of maintaining the sanctity of the agreement (that Salem shall not be awarded death penalty) shall be attributed to the concept of human rights involved in extradition laws, which lays emphasis on the law of the country in which the offender seems to be at the time of extradition.

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