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Extradition: Theory and Practices

Extradition: Theory and Practices

The term ‘Extradition has been derived from words ‘Ex+Traditum‘ which means “surrender of criminals”.

Oppenheim defines: “Extradition is the delivery of an accused or a convicted individual to the state where he is accused of or has been convicted of, a crime, by the state on whose territory he happens  for the time to be.”[i]

Generally, States exercise complete jurisdiction over all persons within its territory, but sometimes when an accused runs away to another State, the country has no right to exercise jurisdiction over such person. Those types of situations lead to the concept of extradition. Theoretically, States are under obligation to return the fugitive criminals to the other state but in practice, States do not practice such obligation(they upheld their right to grant asylum to foreign national). Grant of extradition is the matter of national law and therefore it is governed by bilateral treaty. The request for extradition is made through diplomacy and for it there must be an extraditable person and extraditable crime.

In normal circumstances, a state claims its own nationals to be extradited and in exceptional cases for nationals of a third state. France and Germany do not surrender their national and prosecute in their own State.  There is also no obligation for extradition for any crime but generally, it is done in serious crimes. For that, there must be a bilateral extradition treaty.

Purpose:

  1. to prevent criminals who flew from the jurisdiction to escape punishment from one state to another,
  2. to warn criminals that they cannot escape from their liability,
  3. to achieve the goal of the international cooperation;
  4. the requesting state, where the offense is committed, is always in the better position to prosecute the offender.

Indian Extradition Act,1962:

Indian law defines “Extradition treaty means a treaty or agreement made by India with a foreign State relating to the extradition of fugitive criminal and includes any treaty or agreement relating to the extradition of fugitive criminals made before the 15th day of August 1947, which extends to, and is binding on, India.”[ii]

In accordance with the provision of Section 3(1) of the Act, the Government of India is required to make notification to all those States with which it had extradition treaties before independence. In the absence of such continuation, the pre-independence treaty would not be operative.

The Basis for Extradition:

Customary basis:

  1. Rule of Double Criminality: States grant extradition under the rule which is normally incorporated in the extradition treaties. Extradition is granted when the act done by the accused is an offense in both the requesting state and the sending state.
  2. Rule of Speciality: Under this rule, the requesting state can punish the extradited person for the offense of which he was extradited and for no other offense.
  3. Prima Facie Evidence: The territorial state must satisfy that there is a prima facie evidence against the accused for which the extradition is demanded.
  4. Time-Barred Crime: A fugitive is not extradited if a prosecution for the offense in respect of which extradition is sought has become time-barred in the requesting country.
  5. Non-Political Character: The offense must not be of political nature. Extradition can be granted for common crimes or those of a fiscal nature to safeguard the public interest.
  6. Rendition: When there is no extradition treaty between states, an offender may be returned to stand trial by an ad-hoc special arrangement. This assistance may be taken even if there is no extradition treaty & irrespective of the fact that the alleged offense is an extraditable crime or not.

Treaty Basis:

  1. Attentat Clause, 1856, Belgium: It originated in Belgium in 1833 and it was followed by other states later. It provided that the murder of the head of a foreign state or his family member should not be considered as a political crime and extradition in such cases must be done.
  2. Genocide Convention,1948: Article 7 of the Convention says that the crime of genocide is not to be considered as a political crime.
  3. The Hague & Montreal Convention on Hijacking, 1970: It excludes hijacking from the category of political crime.
  4. European Convention on Suppression of Terrorism, 1977: It excludes terrorist acts from the category.
  5. Convention on Prevention & Punishment of Crime Against Internationally Protected Persons including Diplomatic Agents, 1973:

 

Non-Extradition of Political Criminal:

Most states refuse to commit themselves to extradite any person charged with political crimes. The difficulty of applying political exception is obviously a problem that regularly plagues Courts.[iii] The problem faced in extradition is the definition of a political crime. Various criteria have been adopted to define it like :

  1. The motive of crime,
  2. The circumstances of its commission,
  3. Specific offenses, e.g. treason,
  4. Acts directed against the political organization of the requesting state,
  5. The existence of two political parties striving for political control in the state, etc.

Extradition is not allowed for military criminals also.

Cases:

 

  1. In Re Castioni[iv] case, the Court noted three things for a political crime: (a) acting in a political manner, (b) a political rising; and (c) a dispute between political parties in a state striving for the government.
  2. In Re Meunier[v], the Court refused to hold anarchist crime of bomb explosion in France as a political act by excluding anarchist and terrorist act from the category of political crime.
  3. In Savarkar case (1911), the Permanent Court of Arbitration decided that International Law does not impose any obligation upon the State to return a criminal. Once a person is extradited, even in an irregular way, the country receiving the fugitive is not bound to return the accused.
  4. In Mobarak Ali Ahmad v. State of Bombay[vi] the Court held that the Indian Courts would have jurisdiction over a case in which a person committed an offence although not being present in India at the time of the commission of the offence. “ the fastening of criminal liability on a foreigner in respect of culpable acts or omissions in India which are judicially attributable to him notwithstanding that he is corporeally present outside India at that time, is not to give any extra-territorial operation to the law: for it is in respect of an offence whose locality is in India, that the liability is fastened to the person and punishment is awarded by the law, if his presence in India for the trial can be secured.”

 

 

To be continued…….

 

[i] L. Oppenheim, International Law, Vol. 1,Eighth Edition, p.696

[ii] Section 2(d) of Indian Extradition Act, 1962

[iii]  Edward Collins, International Law in a Changing World,1969,p. 216

[iv] (1891) 1 Q.B.149

[v] (1894)2 Q.B. 415

[vi][vi] AIR 1957 S.C. 857

 

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