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BARS TO EXTRADITION

By enacting laws or in concluding treaties or agreements, countries determine the conditions
under which they may entertain or deny extradition requests. Observing fundamental human
rights is also an important reason for denying some extradition requests. It is common for
human rights exceptions to be specifically incorporated in bilateral treaties. 1 Such bars can be
invoked in relation to the treatment of the individual in the receiving country, including their
trial and sentence. These bars may also extend to take account of the effect on family of the
individual if extradition proceeds. Therefore, human rights recognised by international and
regional agreements may be the basis for denying extradition requests. However, cases where
extradition is denied should be treated as independent exceptions and will only occur in
exceptional circumstances.2

POSSIBILITY OF CERTAIN FORMS OF PUNISHMENT

Some countries refuse extradition on grounds that the person, if extradited, may receive
capital punishment or face torture. A few go as far as to cover all punishments that they
themselves would not administer.

 DEATH PENALTY: Many jurisdictions, such as Australia, Canada, Macao, New
Zealand, South Africa, and most European nations except Belarus, will not allow
extradition if the death penalty may be imposed on the suspect unless they are assured
that the death sentence will not be passed or carried out. The United Nations Human
Rights Committee considered the case of Joseph Kindler, following the Canadian
Supreme Court's decision in Kindler v Canada to extradite Kindler who faced the death
penalty in the United States. This decision was given despite the fact that it was expressly
provided in the extradition treaty between these two states that extradition may be
refused, unless assurances were given that the death penalty shall not be imposed or
executed, as well as arguably being a violation of the individual's rights under the
Canadian Charter of Human Rights. The decision by the Committee considered Article 6
of the International Covenant on Civil and Political Rights, the “inherent right to life” and

1
Johnston, P. "The Incorporation of Human Rights Fair Trial Standards into Australian Extradition
Law". (2014) 76 Australian Institute of Administrative Law Forum 20.
2
Mariana (Mitra) Radu, Cătălina Mititelu (2013) “The Observance of Human Rights and Freedoms in the
Extradition Proceedings at National and International Levels” JDSR 3, 100 at 101

inhuman or degrading treatment or punishment. Edward Fitzgerald (2013). INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT: Many countries will not extradite if there is a risk that a requested person will be subjected to torture. However. whether this right prohibited Canada from extraditing the individual to the United States where he faced the death penalty. United Kingdom the court retreated from this firm refusal and instead took a more subjective approach for assessing state assurances. The Denning Law Journal 25 89 at 90. The Court in Soaring stressed however that the personal circumstances of the individual. but not the death penalty sentence itself. In regard to torture the European Court of Human Rights has in the past not accepted assurances that torture will not occur when given by a state where torture is systematic or endemic. In the deportation case of Othman (Abu Qatada)the court provided 11 factors the court will assess in determining the validity of these assurances. the European Court of Human Rights held that it would violate Article 3 of the European Convention on Human Rights to extradite a person to the United States from the United Kingdom in a capital punishment case. including age and mental state (the individual in this case was 18 years old) were relevant in assessing whether their extradition would give rise to a real risk of treatment exceeding the threshold in Article 3. it is also a jus cogens norm under international law and can therefore be invoked as a bar even if it is not provided for in an extradition agreement. In the case of Soering v United Kingdom. This was due to the harsh conditions on death row and the uncertain timescale within which the sentence would be executed. The Committee decided that there was nothing contained in the terms of Article 6 which required Canada to seek assurance that the individual would not face the death penalty if extradited. Unlike capital punishment it is often more difficult to prove the existence of torture within a state and considerations often depend on the assessment of quality and validity of assurances given by the requesting state. While torture is provided for as a bar to extradition by the European Convention on Human Rights and more universally by the Convention Against Torture. . Recent Human Rights Developments in Extradition Law & Related Immigration Law. 3.3 Although in the more recent case before the same court Othman (Abu Qatada) v. the Committee noted that if Canada had extradited without due process it would have breached its obligation under the Convention in this case.  TORTURE.

This case is an example of how the gravity of the crime for which extradition was sought was not proportionate to protecting the interests of the individual's family.JURISDICTION Jurisdiction over a crime can be invoked to refuse extradition. In contrast the case of HH v Deputy Prosecutor of the Italian Republic. This claim was rejected by the Court . so these limits must be weighed in a balancing of priority against this right. This is achieved by way of balancing the potential harm to private life against the public interest in upholding the extradition arrangement. In particular. RIGHT TO PRIVATE AND FAMILY LIFE In a limited number of cases Article 8 of the European Convention on Human Rights has been invoked to stop extradition from proceeding. Article 8 does not only address the needs of children. In the case of FK v. but all family members yet the high threshold required to satisfy Article 8 means that the vulnerability of children is the most likely circumstance to meet this threshold. In this case both parents were being extradited to Italy for serious drug importation crimes. Genoa is an example of when the public interest for allowing extradition outweighed the best interests of the children. Article 8 states that everyone has the right to the respect of their private and family life. While this article is useful as it provide for a prohibition to extradition. Cases to date have mostly involved dependent children where the extradition would be counter to the best interests of this child. the fact that the person in question is a nation's own citizen causes that country to have jurisdiction. Polish Judicial Authority the court held that it would violate article 8 for a mother of five young children to be extradited amidst charges of minor fraud which were committed number of years ago. the threshold required to meet this prohibition is high. Cases where extradition is sought usually involve serious crimes so while these limits are often justified there have been cases where extradition could not be justified in light of the individual's family life. However the court in this case noted that even in circumstances where extradition is refused a custodial sentence will be given to comply with the principles of international comity. Article 8 does explicitly provide that this right is subject to limits in the interests of national security and public safety. In the case of Norris v US (No 2) a man sought to argue that if extradited his health would be undermined and it would cause his wife depression.

Article 6 of the ECHR also provides for fair trial standards. Article 14 of the ICCPR provides a number of criteria for fair trial standards. including their trial and sentence as well as the effect on 4 J. If it is found that fair trial standards will not be satisfied in the requesting country this may be a sufficient bar to extradition. health of the individual. going beyond merely an unfair trial. This is in part because torture evidence threatens the “integrity of the trial process and the rule of law itself.4 FAIR TRIAL STANDARDS Consideration of the right to a fair trial is particularly complex in extradition cases. Evidence obtained by way of torture has been sufficient to satisfy the threshold of a flagrant denial of justice in a number of cases. whom if extradited would face trial where evidence against him had been obtained by way of torture. This was held to be a violation of Article 6 ECHR as it presented a real risk of a ‘flagrant denial of justice’. which must be observed by European countries when making an extradition request. Its complexity arises from the fact that while the court deciding whether to surrender the individual must uphold these rights this same court must also be satisfied that any trial undertaken by the requesting state after extradition is granted also respects these rights.” HUMAN RIGHTS AND EXTRADITION Human rights as a bar to extradition can be invoked in relation to the treatment of the individual in the receiving country. The European Arrest Warrant and Human Rights.R. These standards have been reflected in courts who have shown that subjective considerations should be made in determining whether such trials would be ‘unjust’ or ‘oppressive’ by taking into account factors such as the duration of time since the alleged offences occurred. Spencer Extradition (2013).who stated that a successful claim under Article 8 would require “exceptional” circumstances. The court in Othman stressed that in order for a breach of Article 6 to occur the trial in the requesting country must constitute a flagrant denial of justice. The Cambridge Law Journal 250 at 251 . Yet exactly how the standards provided for in ICCPR are incorporated or recognized by domestic courts and decision makers is still unclear although it seems that these standards can at a minimum be used to inform the notions of such decision makers. This court in the Othman case. prison conditions in the requesting state and likelihood of conviction among other considerations.

Therefore. but only as independent exceptions.family of the individual if extradition is granted. human rights protected by international and regional agreements may be the basis for denying extradition requests. The repressive nature and the limitations of freedoms imposed on an individual is part of the extradition process and is the reason for these exceptions and the importance that human rights are observed in the extradition process. While human rights concerns can add to the complexity of extradition cases it is positive as it adds to the legitimacy and institutionalization of the extradition system. .