Published in May 2018

Regional Perspective: Pacific Islands Region - added in November 2019

 

 
  This module is a resource for lecturers  

 

Extradition

 

Extradition is the formal process whereby a State requests from the requested State the return of a person accused or convicted of a crime to stand trial or serve a sentence in the requesting State. Historically, there was no general duty to extradite. Extradition was often based on informal relations between leaders of sovereign States. The increasing numbers of such cases created the need for more formal agreements.

Article 16 of the Organized Crime Conventions deals with extradition. This article is 17 paragraphs in length, making it the second longest article of the Convention, after article 18 on mutual legal assistance. This shows, on one hand, the complexity of international cooperation and, on the other, its importance in the context of fighting transnational organized crime.

In the extradition process, the challenges are similar to those for mutual legal assistance. Different legal systems and frameworks need to be reconciled. Despite the legal differences, there are several principles on extradition that are common to most countries. The Organized Crime Convention draws on these principles to build a comprehensive framework for extradition.

Principles of extradition

  1. Double (dual) criminality

  2. The rule of specialty

  3. The non-extradition of nationals

  4. Risk of persecution in the requesting State

  5. The political offense exception

  6. Risk of unfair trial in the requesting State

  7. Double jeopardy ( ne bis in idem)

  8. The non-discrimination clause

Probably the most common principle is the so-called double (or dual) criminality, according to which the alleged offense for which extradition is being sought must be of a criminal offence in both the requesting and requested State.

Recent trends and developments in extradition law have focused on relaxing the strict application of certain grounds for refusal of extradition requests. Attempts have been made to ease, for example, difficulties with double criminality by focusing on the underlying conduct of the offence in question irrespective of the denomination of the offence or its "legal label" in the requesting and requested States.

Under the principle of specialty, which is codified in numerous bilateral extradition treaties and regional extradition schemes, an extradited person shall not be proceed­ed against, sentenced, detained, re‑extradited to a third State, or subjected to any other restriction of personal liberty in the territo­ry of the requesting State for any offence committed before surrender other than offence for which extradition was granted or any other offence in respect of which the requested State consents. Specialty serves as a safeguard against prosecutions in the requesting State for political offences and violations of other substantive rules of extradition law, such as dual criminality and the principle of ne bis in idem.

According to the principle of non-extradition of nationals, many States decline any obligation to surrender their own citizens. In some countries, there are even constitutional provisions which prohibit the extradition of the respective country's nationals. Nonetheless, despite this general principle, public international law dictates that States have the legal obligation to either extradite or prosecute ( aut dedere aut judicare) persons who commit serious international crimes. This obligation is predicated on the extraterritorial nature of international crimes and reflects an attempt of the international community to ensure that perpetrators are prosecuted either by the national authorities of that State or by another State which indicates that it is willing to prosecute the case by requesting extradition.

Article 16. Extradition

A State Party in whose territory an alleged offender is found, if it does not extradite such person in respect of an offence to which this article applies solely on the ground that he or she is one of its nationals, shall, at the request of the State Party seeking extradition, be obliged to submit the case without undue delay to its competent authorities for the purpose of prosecution. Those authorities shall take their decision and conduct their proceedings in the same manner as in the case of any other offence of a grave nature under the domestic law of that State Party. The States Parties concerned shall cooperate with each other, in particular on procedural and evidentiary aspects, to ensure the efficiency of such prosecution.

Among other principles is the non-discrimination clause, which stipulates that requested States have no obligation to extradite if there are reasons to believe that the person would be persecuted in the requesting State on account of gender, race, religion, nationality, ethnic origin, or political opinion.

It should be added that the political offense exception for extradition has been one of the most controversial features of the extradition process. While in theory this principle provides the requested State with the right to refuse extradition for political crimes, the practical obligation of this principle is far from settled as there is no universally accepted definition of "political crime". Recent developments also suggest that attempts are being made to restrict the scope of the political offence exception or even abolish it. The increase, for example, in international terrorism has led to the willingness of States to limit the extent of the political offence exception, which is generally no longer applicable to crimes against international law.

There is no obligation for the requested State to surrender individuals in cases of the possible risk of torture and other inhuman or degrading treatment in the requesting State or in cases there are grounds to believe that the requesting State cannot provide a fair trial or secure minimum guarantees in criminal proceedings.

It is also very likely that the requested State will not surrender a person who has already been prosecuted (independently from the result of the prosecution) by its authorities in respect to the offense for which extradition is requested ("double jeopardy" or " ne bis in idem").

Most extradition agreements to date have been bilateral in nature, but increasingly multilateral agreements are signed and implemented either at the regional level or at the international level (the Organized Crime Convention is a characteristic example of international instrument in this regard). The advantage of multilateral conventions is that they offer common definitions of offenses and procedures for States that often have different legal traditions and procedures (Nicholls, Montgomery, Knowles, Doobay and Summers, 2013; Missbach, 2015).

The Organized Crime Convention states that any offence included in the Convention is "deemed to be included as an extraditable offence in any extradition treaty existing between States Parties." In the absence of a treaty, and if a State insists on the existence of a treaty for extradition, an option is provided for that State to use the Convention itself as the vehicle for extradition (art. 16.3 of the Organized Crime Convention).

European Arrest Warrant (EAW)

The European Arrest Warrant (EAW), applied throughout the EU, replaced lengthy extradition procedures within the EU's territorial jurisdiction. It improves and simplifies judicial procedures designed to surrender people for the purpose of conducting a criminal prosecution or executing a custodial sentence or spell in detention. Simplifying and improving the surrendering procedure between EU countries was made possible by a high level of mutual trust and cooperation between countries

Conditions: An EAW may be issued by a national judicial authority if:

  • The person whose return is sought is accused of an offence for which the maximum period of the penalty is at least one year in prison;
  • He or she has been sentenced to a prison term of at least four months.
  • A decision by the judicial authority of an EU country to require the arrest and return of a person should therefore be executed as quickly and as easily as possible in the other EU countries.

Legal basis: The EU document governing the operation of the EAW is the Council Framework Decision of 13 June 2002. This was the first instrument to be adopted on the basis of the principle of mutual recognition of judicial decisions. It came into force on 1 January 2004 and is founded on the principle of direct contacts between the judicial authorities.

Proportionality: There is a need to ensure that the EAW is used proportionately so that the system is not undermined by a glut of EAWs for trivial offences. The judicial authorities in the EU Member States issuing the EAW should apply a "proportionality check" by considering the seriousness of the offence, the length of sentence and the costs and benefits of executing an EAW.

Guaranteeing fair trials and fundamental rights: The operation of the EAW will also benefit the work of the European Union on helping to guarantee fair trials by having minimum EU standards for the rights of people suspected or accused of a crime.

This includes measures setting out common rules in the EU on:

  • The right to interpretation and translation during criminal proceedings;
  • The right of suspects to be informed of their rights;
  • The right to have access to a lawyer and the right of persons in custody to communicate with family members and employers;
  • The presumption of innocence;
  • The right to legal aid.

The EAW process introduces the following novelties compared to the former extradition procedures:

  • Expeditious proceedings: The final decision on the execution of the EAW should be taken within a maximum period of 90 days after the arrest of the requested person. If that person consents to the surrender, the decision shall be taken within 10 days after consent has been given (art. 17).
  • Abolition of double criminality requirement in prescribed cases: The double criminality principle, deeply ingrained in traditional extradition law, does not need to be verified for a list of 32 offences  according to art. 2 para. 2 of the Framework Decision, if they are punishable in the issuing Member State by a custodial sentence or a detention order for a maximum period of at least three years. These offences include, inter alia, participation in a criminal organization, terrorism, trafficking in human beings, sexual exploitation of children and child pornography, illicit trafficking in narcotic drugs and psychotropic substances, illicit trafficking in weapons, munitions and explosives, corruption, fraud including that affecting the financial interests of the European Communities, laundering of the proceeds of crime, computer-related crime, environmental crime, facilitation of unauthorized entry and residence, murder and grievous bodily injury, rape, racism and xenophobia, trafficking in stolen vehicles, counterfeiting currency etc. For offences which are not included in the abovementioned list and do not fall within the 3 years threshold, the double criminality principle still applies (art. 2 para. 4).
  • "Judicialization" of the surrender: The new surrender procedure based on the EAW is removed outside the realm of the executive and has been placed in the hands of the judiciary. Both the issuing and executing authorities are considered to be the judicial authorities which are competent to issue or execute a EAW by virtue of the law of the issuing or executing Member State (art. 6). Consequently, since the procedure for executing a EAW is primarily judicial, the administrative stage inherent in extradition proceedings, i.e. the competence of the executive authority to render the final decision on the surrender of the person sought to the requesting State, is abolished.
  •   Surrender of nationals: The EU Member States can no longer refuse to surrender their own nationals. The Framework Decision does not include nationality as either a mandatory or optional ground for non-execution. Furthermore, art. 5 para. 3 provides for the option of making execution conditional on a guarantee that, upon conviction, the individual is returned to his/her State of nationality to serve the sentence there.
  • Abolition of the political offence exception: The political offence exception is not enumerated as mandatory or optional ground for non-execution of a EAW. The sole remaining element of this exception is confined to the recitals in the preamble of the Framework Decision (recital 12) and takes the form of a modernized version of a non-discrimination clause.
  • Additional deviation from the rule of speciality: Art. 27 para. 1 of the Framework Decision enables Member States to notify the General Secretariat of the Council that, in their relations with other Member States that have given the same notification, consent is presumed to have been given for the prosecution, sentencing or detention with a view to carrying out of a custodial sentence or detention order for an offence committed prior to surrender, other than that for which the person concerned was surrendered.
 

UNODC technical assistance tools on extradition

UNODC has prepared a Model Treaty on Extradition and a Model Law on Extradition (2004). These technical assistance tools are intended to be used by States in the negotiation of bilateral and regional agreements to promote more effective cooperation in criminal cases with transnational implications, and in enactment of relevant national laws.
 

Extradition Requests

The process of one State seeking the extradition of a person from another State for the purpose of a criminal trial is a complex and serious endeavour. The submission and execution of an extradition request involves the legal systems of more than one State-a complex set of laws and procedures that are meant to protect the sovereignty of the States involved and the rights of the person sought. Therefore, careful attention to procedural rules and requirements is needed to ensure that both States are doing justice under their legal systems and to the accused person.

Depending upon its domestic legislation, a number of factors are considered by a requested State receiving an extradition request. The decision to extradite a person to another State is, in most cases and with the exception of the EAW process, the result of a two-tier system involving the judiciary at the outset of the process and the executive branch at the final point of decision-making (if the judiciary has ruled positively on the granting of the extradition request). Depending on the jurisdiction, the courts consider a number of factors in deciding whether to extradite or not, including dual criminality, identity, sufficiency of the supporting evidence and the existence of an extradition treaty. In some jurisdictions, the decisions of the court or the executive can be appealed or reviewed. The extradition process is subject to strict timelines for filing documents, appeals, bringing the suspect before court, and surrendering the suspect if ordered to do so.

The death penalty is an issue in some extradition requests. States that abolished the death penalty deny extradition to States where the death penalty might be imposed, unless assurances are made that the individual concerned would not be sentenced to death or, if sentenced to death, that the penalty would not be carried out. Most of these cases in recent years have involved terrorist suspects (United Nations Economic and Social Council, 2010).

 

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