EXTRADITION: THE NATURE OF STATE’S OBLIGATION
Author: Ananaya Chauhan, IV year of B.A.,LL.B from Delhi Metropolitan Education, Noida Affiliated To Guru Gobind Singh Indraprastha University, Delhi.
Extradition is a formal, diplomatic process under international law in which one state demands that another return custody of a fugitive criminal for offenses punishable by the requesting State's laws and committed beyond the jurisdiction of the country where the fugitive has found sanctuary. Because of advancements in air-traffic technology, it is now conceivable for a person to flee to another state after committing a crime in his own. Extradition is the legal process by which a suspect or convicted criminal is handed over to another country or jurisdiction. Extradition is governed by treaties that exist between nations. When Asylum Begins, Extradition Ends. International extradition is a good-faith commitment made by states to promote and carry out justice.
Belgium established the first legal statute providing for extradition in 1833, along with the first legislation on the right to refuge. Extradition Acts define the link between the Act and the treaty by specifying extraditable offenses, as well as processes and protections. Some countries authorize extradition petitions if they have exchanged reciprocity declarations with the seeking countries. Despite the fact that there has been a pattern of resisting extradition petitions in the absence of a binding international agreement between the states, fugitives are frequently surrendered on the basis of local law or as an act of good faith by the State Parties. However, because of the ambiguity, non-parties to extradition treaties may provide a safe refuge for fugitives.
The presence of a binding extradition agreement and the municipal laws of the nation from which extradition is requested are two elements that influence the extradition procedure. Extradition involves two states, for example, the territorial state - the state where an accused or convicted person is located and to whom the request is submitted. Another state has made a request, such as the state where the crime was committed which is the requesting state. The request is submitted through the diplomatic channel, as is customary.
A criminal is extradited to the requesting state for the following reasons:
Extradition is based on the broad principle that it is in the interests of civilized communities for criminals to be brought to justice, and as such it is recognized as a part of the comity of nations that one state should ordinarily provide assistance to another state in bringing offenders to justice.
Extradition has a deterrence impact because it warns criminals that they will not be able to avoid punishment by fleeing to another country.
Criminals are handed over in order to protect the territorial state's interests.
Extradition is carried out because it is a step toward achieving international cooperation in the resolution of worldwide social issues.
Extradition is founded on the principle of reciprocity.
Because evidence is more easily available in that State only, the State on whose territory the crime was committed is in a stronger position to prosecute the criminal.
EXTRADITION OF A POLITICAL CRIMINAL IS NOT POSSIBLE
During the French Revolution, the habit of not extraditing political convicts began. Other countries followed suit after that. A political crime has yet to be defined by any commission or body. International law does not define this term either. However, in our own terms, we may explain that if a person commits a crime for political reasons, such action is a political crime.
A prisoner was accused with the murder of Luigi Rossi in the “Re Castioni case (1891)”. The killer made his way to England from Switzerland. The British government turned down Switzerland's request for extradition. According to the court, the accused murdered in order to incite political unrest, and so committed a political crime. Because he was a political criminal, England was under no obligation to extradite him.
However, on the contrary, a fugitive who detonated a bomb in a public place in Paris, “Re Meunier Case, 1894”, fled to England. Paris wanted him returned, but England refused to extradite him. The court decided that his motives were not solely political, and that he had not committed a political crime as a result.
CLAUSE OF D'ATTENTAT
The d'attentat, or Belge clause, provides that the assassination of leaders of countries or nations is not considered a political crime, and that they can be extradited for it.
RULE OF SPECIALITY
International law recognizes the notion of specialty. It stipulates that a person who is extradited to a nation to face criminal charges can only be prosecuted for those charges and not for any additional pre-extradition offenses.
This concept was reaffirmed in the decision of “United States vs. Rauscher (1886)”, which said that he can only be tried for crimes that are criminalized by the treaty and/or the crimes for which extradition is requested.
According to the concept of double criminality, a criminal can only be extradited to another country if the crime he committed is punishable under both countries' laws. For example, if a murderer flees Bangladesh and hides in India, he can be extradited because both nations' laws make murder illegal.
THE STATE'S LEGAL POSITION IN INTERNATIONAL LAW
It is important to highlight that the state has no obligation to extradite a person. However, there might be an agreement between the two countries that any criminals who flee to their nation will be extradited and vice versa. They can also extradite a person without the need for a treaty. States should remember that during extradition, they should not break their own domestic rules, such as national laws and international agreements.
Countries, on the other hand, are not obligated to return fugitives if legitimate extradition procedures were not followed. Mr Vinayak Donador Savarkar was detained by the French navy in the case of “Sarvarkar (1911)”.
He was later extradited to England; however, he was obtained via erroneous extradition processes in the United Kingdom. The French demanded his return due to a procedural violation.
The court ruled that under international law, there is no clause stating that if extradition processes are not followed, the government must return him.
Citizens of their own country cannot be extradited by the state. So, if an English person comes to India and commits a crime before fleeing to England, it will be extremely difficult to bring the person back. They generally guarantee that the perpetrator will be punished in accordance with their own laws.
In “Regina vs Wilson (1878)”, a treaty between the two nations can be reached, in which the governments agree not to extradite persons and the fugitive would be prosecuted by their own laws.
Typically, each nation has its own rules governing the extradition procedure. The Extradition Act of 1962 oversees the extradition procedure in India. Act 66, enacted in 1993, and made changes to it.
Treaties for extradition are discussed under Section 2(d) of the Act, which authorizes foreign countries to negotiate such agreements with India. These treaties are generally bilateral in nature, meaning they only apply to two nations.
Five principles are embodied in these treaties:
Extradition of a fugitive will take place for crimes listed in the treaty.
The offense must be made illegal under both nations' laws, not just one.
A prima facie case must be established.
The government should only prosecute the convict for the crime for which he was extradited.
He must be put on trial in a fair manner.
Extradition requests on behalf of India are usually submitted by the Ministry of External Affairs and not by the general public.
Countries that have signed an extradition pact with India can request extradition from India. A non-treaty nation must follow the procedures described in Section 3(4) of the Extradition Act of 1962.
The following are the barriers or impediments to extradition, according to the Ministry of External Affairs' page:
Unless a treaty exists, India is not obligated to extradite someone.
Unless the offence is a criminal under the treaty, India is not obligated to extradite someone.
For solely political and military offenses, extradition may be prohibited.
Both India and the nation requesting extradition must consider the offense to be a criminal.
When the method outlined in “Section 3(4) of the Extradition Act of 1962” is not followed, extradition may be rejected.
“Extradition is therefore the handover of persons whom it is wanted to deal with from one state to another for crimes of which they have been charged or convicted and are justifiable in the courts of the other state.” The Extradition Act of 1962 governs extradition in India and lays out the process. Extradition requires that countries engage into an agreement, known as a treaty that governs the extradition procedure. Sections 41, 166A, 166B, and 188 of the Code of Criminal Procedure outline several extradition processes. Extradition is thus controlled by a number of legislation and treaties. In the nutshell, we can conclude that the law of extradition is important for maintaining peace and order in the society and it is also beneficial for punishing the offenders who were trying to escape from their punishment.