“Extradition” means the surrender of any person who is sought by the requesting State for criminal

prosecution for an extraditable offence or for the imposition or enforcement of a sentence in

respect of such an offence.

Extradition is an act where one jurisdiction delivers a person accused or convicted

of committing a crime in another jurisdiction, over to their law enforcement. It is a
cooperative law enforcement process between the two jurisdictions and depends on the
arrangements made between them.

Extradition laws give a nation the ability to hand over someone to another nation for
purposes of criminal trial or punishment. Whether someone can be extradited depends on
the laws of the countries involved and whether there's an extradition treaty in place.

Extradition is the formal process of one state surrendering an

individual to another state for prosecution or punishment for crimes
committed in the requesting country’s jurisdiction. It typically is
enabled by a bilateral or multilateral treaty. Some states will extradite
without a treaty, but those cases are rare.

Through the extradition process, one sovereign jurisdiction typically makes a formal request to
another sovereign jurisdiction ("the requested state"). If the fugitive is found within the territory of
the requested state, then the requested state may arrest the fugitive and subject him or her to its
extradition process.[2] The extradition procedures to which the fugitive will be subjected are
dependent on the law and practice of the requested state.[2]
Between countries, extradition is normally regulated by treaties. Where extradition is compelled
by laws, such as among sub-national jurisdictions, the concept may be known more generally
as rendition. It is an ancient mechanism, dating back to at least the 13th century BC, when an
Egyptian pharaoh, Ramesses II, negotiated an extradition treaty with a Hittite king, Hattusili III.[2]

Bars to extradition[edit]
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.[5] 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

Common bars to extradition include:

Failure to fulfill dual criminality[edit]

See also: Double criminality
Generally the act for which extradition is sought must constitute a crime punishable by some
minimum penalty in both the requesting and the requested states.
The requirement has been abolished for broad categories of crimes in some jurisdictions, notably
within the European Union.

Political nature of the alleged crime[edit]

Many countries refuse to extradite suspects of political crimes. See political offence exception.

Possibility of certain forms of punishment[edit]

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,[7] Canada, Macao,[8] New Zealand,

 South Africa, and most European nations except Belarus, will not allow extradition if
[9]

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.[10] The decision by the Committee considered Article 6 of the International Covenant
on Civil and Political Rights, the “inherent right to life” and whether this right prohibited
Canada from extraditing the individual to the United States where he faced the death
penalty. 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.[11] However, the Committee noted that if Canada had extradited without
due process it would have breached its obligation under the Convention in this case.
 Torture, 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, inhuman or
degrading treatment or punishment. 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.[12] Although in the more recent case before the
same court Othman (Abu Qatada) v. United Kingdom the court retreated from this firm
refusal and instead took a more subjective approach for assessing state assurances. 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. In the deportation case of Othman (Abu Qatada) the court provided
11 factors the court will assess in determining the validity of these assurances.[13] 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, 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.[6] In the case of Soering v United Kingdom, 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. This was due to the harsh conditions on death row and the uncertain
timescale within which the sentence would be executed, but not the death penalty sentence
itself. The Court in Soering stressed however that the personal circumstances of the
individual, 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.[14]
Jurisdiction[edit]
Jurisdiction over a crime can be invoked to refuse extradition.[15] In particular, the fact that the
person in question is a nation's own citizen causes that country to have jurisdiction (see next
point).

Own citizens[edit]
Some countries, such as Austria,[16] Brazil,[17] Bulgaria,[18] the Czech Republic,[19] France,[20]
[21]
 Germany,[22] Japan,[23] Norway,[24] the People's Republic of China,[25] the Republic of
China (Taiwan),[26] Russia,[27] Saudi Arabia,[28] Switzerland[29], Syria[30] and Vietnam[31] forbid
extradition of their own citizens. These countries often have laws in place that give them
jurisdiction over crimes committed abroad by or against citizens. By virtue of such jurisdiction,
they prosecute and try citizens accused of crimes committed abroad as if the crime had occurred
within the country's borders (see, e.g., trial of Xiao Zhen).

Right to private and family life[edit]

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 states that everyone has the right to the
respect of their private and family life. This is achieved by way of balancing the potential harm to
private life against the public interest in upholding the extradition arrangement.[12] While this article
is useful as it provide for a prohibition to extradition, the threshold required to meet this
prohibition is high.[12] Article 8 does explicitly provide that this right is subject to limits in the
interests of national security and public safety, so these limits must be weighed in a balancing of
priority against this right. 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. Cases to date have mostly involved dependant
children where the extradition would be counter to the best interests of this child.[12] In the case
of FK v. 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.[32] 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. 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.[33] In contrast the case
of HH v Deputy Prosecutor of the Italian Republic, Genoa is an example of when the public
interest for allowing extradition outweighed the best interests of the children. In this case both
parents were being extradited to Italy for serious drug importation crimes.[34] Article 8 does not
only address the needs of children, but also 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 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.[35] This claim was rejected by
the Court which stated that a successful claim under Article 8 would require “exceptional”
circumstances.[36]
Suicide Risk: Cases where there is risk of the individual committing suicide have also invoked
article 8 as the public interest of extraditing must be considered in light of the risk of suicide by
the individual if extradited. In the case of Jason's v Latvia extradition was refused on these
grounds, as the crime for which the individual was sought was not enough of a threat to public
interest to outweigh the high risk of suicide which had been assessed to exist for the individual if
extradited.[37]

Fair trial standards[edit]

Consideration of the right to a fair trial is particularly complex in extradition cases. 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. Article 14 of the ICCPR provides a
number of criteria for fair trial standards.[38] 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, health of the individual, prison conditions in the requesting state
and likelihood of conviction among other considerations.[39] Yet exactly how the standards
provided for in ICCPR are incorporated or recognised 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.[5]:35 If it is found that fair trial standards will not be satisfied in the
requesting country this may be a sufficient bar to extradition.
Article 6 of the ECHR also provides for fair trial standards, which must be observed by European
countries when making an extradition request.[5] This court in the Othman case, whom if
extradited would face trial where evidence against him had been obtained by way of torture.
[40]
 This was held to be a violation of Article 6 ECHR as it presented a real risk of a ‘flagrant denial
of justice’.[12] 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, going beyond merely an
unfair trial.[41] Evidence obtained by way of torture has been sufficient to satisfy the threshold of a
flagrant denial of justice in a number of case. This is in part because torture evidence threatens
the “integrity of the trial process and the rule of law itself.”[42]

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.

Under the principle of specialty, which is codified in numerous bilateral extradition

treaties and regional extradition schemes, an extradited person shall not be proceed-
ed 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.

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).

Conclusion
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)
Hence the obligation for extraditing is due to the treaties and arrangement entered into by
India with other nations. It needs to be understood that an Extradition is a sovereign act and in
cases where there is no treaty and absence of international duty betwebetween the two
sovereign states, any sort of extradition activity is dependent upon the ideas of reciprocity and
comity which are an essential part of the International principles of amicable cooperation
between states or nations.

As per the International Law conventions, a state is not under a binding obligation to surrender a
fugitive to another sovereign state. There is no duty as such imposed by the International law on
the states to extradite. Although there are certain basic principles governing the extradition
process which are accepted and followed by several nations.

Extraditable offenses

1. Extraditable offenses are those punishable under the laws of both Parties by
imprisonment or deprivation of liberty for a maximum period of at least
[one/two] year(s), or by a more severe penalty. Where request for
extradition relates to a person wanted for enforcement of a sentence,
extradition shall be granted only if a period of at least [four/six] months
remains to be served.
2. In determining whether or an offense is punishable under the laws of both
Parties, it shall not matter whether:
a) The laws of both Parties place the acts or omissions constituting the
offense within the same category of offense or denominate the offense by
the same terminology;
b) Under the laws of the Parties the constituent elements of the offense
differ, it is the totality of the acts or omissions that shall betaken into
account.
3. Where extradition is sought for an offense against a law relating to taxation,
customs duties or other revenue matters, extradition may not be refused on
the ground that the law of the requesting State does not impose the same
kind of tax or duty.
4. If the request for extradition includes several separate offenses each of
which is punishable under the laws of both Parties, but some of which do
not fulfill other conditions set out in paragraph 1 of this article, the
 requested Party may grant extradition for the latter offenses provided the
persons is to be extradited for at least one extraditable offense.

Mandatory grounds for refusal

Extradition shall not be granted in any of the following circumstances:

a. If the offense for which extradition is requested is regarded as apolitical

offense;
b. If there are grounds to believe the request has been made to prosecute or
punish a person on account of that person's race, religion, nationality, ethnic
origin, political opinions, sex or status, or that the person's position may be
prejudiced for any of these reasons;
c. If the offense is an offense under military law and not also an offense under
criminal law;
d. If final judgment has been rendered against the person in the requested State
in respect of the offense for which the persons' extradition is requested;
e. If the person whose extradition has been requested has, under the law of
either Party, become immune from prosecution or punishment for any
reason, including lapse of time or amnesty;
f. If the person would be subjected to torture or cruel, inhuman treatment or
degrading punishment or if that person has not or would not receive the
minimum guarantees in criminal proceedings as contained in the
International Covenant on Civil and Political Rights, article 14.
g. If the judgment of the requesting State has been rendered in absentia, the
convicted person has not had sufficient notice of the trial nor opportunity to
arrange for a defense and has not or will not have the opportunity to have
the case retried.

ARTICLE 4

Optional grounds for refusal

Extradition may be refused in any of the following circumstances:

a. If the person whose extradition is requested is a national of the requested

State;
b. If the competent authorities of the requested State have decided either not to
institute or to terminate proceedings against the person for the offense for
which extradition is requested;
c. If prosecution in the requested State is pending for the same offense;
d. If the offense carries the death penalty under the law of the requesting State;
e. If the offense has been committed outside the territory of either Party and
the law of the requested State does not provide for jurisdiction over such an
offense committed outside its territory;
f. If the offense is regarded under the law of the requested State as having been
committed in whole or in part within that State;
g. If the person whose extradition has been requested has been sentenced or
would be liable to be tried in the requesting State by an extraordinary or ad
hoc court or tribunal;
h. If extradition would be incompatible with humanitarian considerations in
view of age, health or other personal circumstances of that person.

i. nternational Extradition Without a Treaty

j. In countries with no extradition treaty with the United States, it's still possible
to extradite someone. In these cases, the United States must negotiate with
the non-extradition treaty country, but they can say no.

k. For instance, Edward Snowden faced theft and espionage charges in the

United States for disclosing classified information, but fled to Russia. There's
no extradition treaty between the U.S. and Russia which, in effect, shielded
him from prosecution.

l. This is also what happened with Julian Assange, who'd taken refuge in the
Ecuadorian embassy in London. Ecuador does not have an extradition treaty
with the United States and had refused to surrender him to U.S. authorities.
Conceivably, Assange could have remained in the embassy until his death,
but Ecuador became unhappy with his behavior and withdrew its asylum prior
to his arrest by London police.