The majority of the time, a person who committed or was accused of committing an offence is tried in the nation where it was committed or allegedly committed. What transpires, though, when a person leaves such a nation to avoid going to court? Or what if someone who has been found guilty flees the country where they were found guilty? In these situations, the nation where the accused or guilty fled makes a formal request to the nation where he fled to bring him home. Extradition is the procedure used to send the accused or sentenced back to the country from which they fled.
What is the extradition?
The Latin terms “ex” and “tradium,” which mean “out” and “give up,” respectively, are the source of the word “extradition.” Its foundation is the Latin dictum “aut dedere aut judicare,” which means “either extradite or prosecute.”
“Extradition is 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 he happens to be for the time,” according to Oppenheim.
The territorial state and the requesting state are both parties to the extradition process. Wherever the accused or convicted flees to avoid the trial or penalty is known as the “territorial state.” However, the “requesting state” is the location where the crime is allegedly or actually being committed. The requesting state formally requests the accused or convicted person’s surrender through diplomatic channels and in accordance with any treaties.
What is the purpose of extradition?
The majority of accused or convicted fugitives flee to other nations from the area of jurisdiction where they are charged or convicted in an effort to avoid the approaching punishment. To ensure that their crimes do not go unpunished, such unjustifiably motivated accused individuals or convicts should be extradited.
In addition to this, every successful extradition serves as a warning sign for offenders who seek to leave the area of the state with legal jurisdiction. Therefore, extradition serves to prevent criminal activity. Besides, criminals who intend or plan to flee the territorial grasp of the legally competent state will get the wrong message if the territorial state does not extradite the guilty or accused parties. More of those living there will be encouraged to flee into the territory of the territorial state if it refuses to extradite the accused or prisoners who are already there. As a result, such a nation might wind up serving as a sanctuary for criminals from around the world, endangering the security and stability of its citizens.
What are the principles of extradition?
Extradition normally follows the following four concepts, which are described below:
Principle of reciprocity: –
The foundations of the reciprocity principle are found in many areas of international law. It stipulates that every favour, deference, reward, or punishment bestowed by one country on its inhabitants or legal residents must be reciprocated (repaid) in kind. It enables the reciprocal manifestation of global solidarity. The principle of reciprocity, which states that the territory state must extradite the suspects or criminals in exchange for any diplomatic courtesy extended by the requesting state, is applicable when it comes to extradition. Any act, from tariff reductions to the implementation of foreign judgments to financial or military assistance, can be considered a kind of diplomatic kindness. This idea may also apply to the extradition of suspects or prisoners between the two nations.
Principle of double jeopardy: –
The phrase “non-bis in-idem” is another name for the double jeopardy principle. It states that if the request relates to the same crime, a person who has already been prosecuted and sentenced cannot be extradited. Except for the finished sentence, no offender tried and convicted once may be extradited for the same offence.
Principle of double criminality:-
According to the principle of double criminality, the offence for which the requesting state is asking the extradition of the suspect or convicted person must also constitute a crime in the territory state. In other words, the fugitive’s actions must be illegal in both the seeking state and the territory state. For instance, if a person is found guilty of “perjury” under English law but his actions do not qualify as “perjury” under American law, America may refuse England’s request to extradite that person.
Principal of speciality: –
A fugitive can only face justice for the specific crime for which he was extradited. The extradited fugitive must be brought to the status quo ante, meaning that he must first be returned to the State that granted the extradition before a new extradition request is made for the crime for which the fugitive is sought to be prosecuted. This is because the requesting state may decide that it is desirable to try the extradited fugitive for another crime committed before his extradition.
What are the conditions of extradition?
For the accused or prisoners to be extraditable, they must not fall into one of the following three categories.
Territorial State’s own nationals: –
The majority of nations argue that they have the right to exercise state sovereignty over their citizens, notwithstanding the fact that the crime was done in another nation, and so refuse to extradite their citizens who are accused of committing a crime in the requesting nation.
Political offenders: –
The fact that many nations refuse to extradite political offenders is one of the most contentious issues surrounding extradition.
Persons already punished: –
The majority of nations uphold the principle of double jeopardy and decline to extradite individuals who have already been convicted and sentenced for the same crime for which extradition is sought.
Extradition Laws: International Scenario
One of the early accords that dealt with extradition to some extent was the Geneva Conventions and their Additional Protocols, 1949, which acknowledged the state’s cooperation in extradition. Since then, most nations have ratified a number of extradition-related international and bilateral agreements. To illustrate, more than centuries of nations have extradition treaties with the United States of America. Additionally, several nations’ penal codes now include extradition clauses.
The United Nations Model Treaty on Extradition, 1990
The UN Model Law on Extradition, which takes its cues from the UN Model Treaty, intends to improve global extradition cooperation. Additionally, it attempts to serve as an additional law in cases involving nations without extradition treaties. Extradition is expressly forbidden in Sections 5 and 6 of the Model Law if, in the opinion of the territorial State, it is requested in order to torture or punish the fugitive on the basis of his caste, ethnic origin, race, or other characteristics.
Extradition Laws: Indian Context
Pre-independence, extradition was governed by the United Kingdom’s Extradition Act, 1970 and then by the Extradition Act, 1903. Currently, the Extradition Act, 1962, hereinafter referred to as Act, governs extradition in India.
The Act allows for the return of wanted convicts from and to India. According to any extradition agreement with the requesting or territory state, extradition may take place. Section 3 of the Act further stipulates that, in the absence of such a treaty, any Convention to which such a requesting or territory state and India are party may be regarded as the extradition treaty in question.
The Act does not specifically prohibit the extradition of Indian citizens to the State making the request; nonetheless, the prohibition on extradition changes from treaty to treaty. It is marked here that presently, India has extradition treaties in force with 48 countries.
In addition, India currently has extradition agreements with the 12 nations. Extradition agreements are agreements between the requesting and territorial states where it is agreed that extradition will take place in accordance with the territorial state’s local laws and international norms rather than the requesting state’s local laws.
What is the procedure for extradition from India?
When a foreign government requests the extradition of a wanted criminal from India, the Consular, Passport and Visa (CPV) Division of the Indian Ministry of External Affairs (MEA) receives the request and any supporting documentation. The arrest warrant must be issued by the Magistrate of Extradition, who is often a Magistrate of First Class, once the Government of India receives it. The Magistrate issues the arrest warrant on the basis of the evidence put forth before him.
After being apprehended, the wanted criminal is subjected to a court investigation, the results of which are reported to the Government of India. The Government of India may issue a warrant for the fleeing criminal’s custody and return if satisfied with the report. The wanted criminal subsequently handed over to the State making the request at the location noted on the warrant.
What is the procedure for extradition to India?
To commence with the extradition of a fugitive criminal to India from the territorial state, the concerned Magistrate upon finding the prima facie case against the fugitive criminal, sends a request to the CPV division of MEA. The Magistrate makes the request alongwith supporting documents and an open-dated arrest warrant. Following that, the request is formally transmitted to the territorial state through diplomatic channels, where it is subsequently delivered to an inquiry magistrate.
The Territory State’s inquiry Magistrate issues a warrant to arrest the wanted criminal after making his decision. He further informed the CPV and Indian Embassy about the arrest. To bring the wanted criminal home, concerned Indian law enforcement officials visit the territory state to get such criminal back to the home country.
In concluding words, extradition is a crucial instrument for both carrying out justice and evaluating diplomatic relations. However, the fugitive criminals take advantage of absence of extradition agreements with many nations. An all-encompassing international extradition law must be established. This gap could have far-reaching effects, such as security dangers in the nation where the fugitive seeks asylum, and causing economic or legal problems in the fugitive’s home country.
Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali