Concept, Definitions and Procedure

EXTRADITION
 MEANING OF
EXTRADITION

In simple terms extradition is the act one government formally turning over an alleged
criminal to another government authority for prosecution for a criminal charge.

International extradition is the surrender by one nation to another, for trial and
punishment, of a person accused or convicted of an offence within the jurisdiction of
the latter. A request for extradition is generally initiated against a fugitive criminal, who
is formally accused of, or is charged with, or is convicted of an extradition sentence.

Currently, the Indian Extradition Act, 1962 with its latest amendment in 1993 provides
the Indian statutory regime of extradition
Concepts
 a. Who is a fugitive criminal?
 b. What is a foreign state?
 c. What for the fugitive criminal is
extradited and on what basis?
Definitions
 In Oppenheim’s International Law, the expression extradition
has been defined as follows:
 “Extradition is the delivery of an accused or a convicted
individual to the State where he/she is accused of or has been
convicted of a crime, by the State on whose territory he/she
happens for the time to be.”
 According to Black’s Law Dictionary:
 “The surrender by one State or Country to another of an
individual accused or convicted of an offence outside its own
territory and within the territorial jurisdiction of the other, which,
being competent to try and punish him, demands the surrender.”
 How is Extradition Regulated
 This delivery of individuals to the requesting
sovereign is based on treaties and/or bilateral
arrangements; however, sometimes this delivery
of individuals occurs by reciprocity and comity as
a matter of courtesy and goodwill between the
sovereigns.
Principles that govern Extradition
 Principles of Double Criminality: This
principle, also known as “Dual Criminality”
states that, extradition is available only when the
act in question is an offence in the jurisdictions
of both the States (the requesting State and the
State requested). The rationale behind this
principle is that, the requested State should be at
liberty to refuse to extradite the fugitive
offender if they do not view the conduct of the
fugitive offender as a criminal act.
 Principle of Speciality: An extradited individual can be
tried only for offences specified in the extradition request;
the object of this principle is to prevent blanket
extradition requests. The requesting State pledges to
judge the requested person only for the crime for which
extradition was requested, and not for any other offence.
As a matter of fact, post the surrender of a fugitive
offender, he/she can expressly waive the rule of
speciality, and can be tried for offences in addition to, or
in furtherance of the offences qua which he/she was
surrendered. Moreover, in certain cases, the requested
State can agree to the fugitive offender being tried for
other offences, in addition to offences apropos which the
fugitive offender was surrendered to the requesting State.
 Political Exception: Request albeit extradition must be
declined if the real purpose of the request made is to
punish the person requested for his political opinion
rather than for the crime committed by him. Political
offences exception holds that a person cannot be
extradited for an offence of political character. The term
‗political offences‘ has not been clearly defined in
international law. What shall construe as a political
offence, usually, depends on the domestic law of the
requested State. It is generally accepted that, acts of
terrorism do not fall under the exception of political
offences, even if they are committed with political
motive.
Procedure
 Extradition is governed by international treaties, bilateral or
multilateral, enshrining the principle, nulla extradition sine lege
(no extradition without a law), this principle is in fact a version of
nullum crimine nullapena sine lege (no crime and no penalty
without a law).
 The State seeking the surrender of a person must present a formal
extradition request, which must identify the wanted person and the
offence imputed on him/her. The requesting State is required to
submit certain documents in support of the request. The kind and
format of the evidence required, so also the standard of proof
applied by the requested State may differ significantly from one
country to another. The formal extradition request may be
preceded by a provisional arrest warrant
 Principle of comity of nations captivates that, each
Member State must comply with a request from a
court or prosecutor of another Member State for
the execution of an arrest warrant issued by it
against an individual accused of an offence
carrying a minimum sentence of 12 months of
imprisonment.
 The arrest warrant needs to contain only a
description of the circumstances albeit which the
offence was committed.
 The judicial authorities and not the executive, is to
decide upon the request of extradition.
Basic Principles
 Principle of relative Seriousness of the
offence - Extradition is usually permissible
only for relatively more serious offences, and
not for trivial misdemeanours or petty
offences. For instance, the extradition treaty
between US and India permits extradition
only for those offences which are punishable
with more than one year of imprisonment
(apart from the condition of dual criminality,
which will be dealt a little later).
Principle of reciprocity
 Principle of Reciprocity in exchange
of fugitives between requesting and
requested State.
Principle of dual criminality
 Principle of Dual Criminality: This is the most important
principle governing Extradition Law. This requires that the
offence that the fugitive is alleged to have committed, should
be an offence both in the requesting as well as the requested
state (however, it may be noted that this refers to the
substance of the offence and not the nomenclature given to it
in a specific country, which may vary). For instance : In
Quattrocchi's case - the request for extradition was declined
as the CBI had not filed the requisite documents making out a
specific case for extradition and had not satisfied the court as
to the basic requirement of 'dual criminality'. To satisfy oneself
as to the requirement of dual criminality, one has to examine
the treaty between the two countries and see if the offence in
question finds mention there.
Existence of prima facie case
 Existence of prima facie case against
the fugitive: This is a safety valve to
ensure, at-least on broad probabilities,
the existence of a triable case against the
fugitive. This is sought to be ensured by a
magisterial inquiry that is to precede the
actual surrender/extradition. If the case
lacks merit on the face of it, extradition
may be disallowed at the very outset.
Principle of Proportionality
 Principle of proportionality between offence
and sentence: Requesting state should respect
the principle of proportionality between offence and
sentence and punishment for that particular crime
should not be excessively harsh or inhuman, in
which case extradition request may be declined.
The possibility of a death sentence to the fugitive
by the requesting state usually leads to the
extradition request being turned down or allowed
only after an assurance from the requesting state
that death penalty will not be carried out.
Fugitive seeking asylum from political
persecution
 Whether the fugitive is seeking asylum from
political persecution and trial for an offence of a
political character: This requires an enquiry into
whether the accused is likely to suffer political
persecution or death sentence in the requesting
country. In such cases extradition is disallowed. For
instance, in the Indian Context, the provision of death
penalty in India and alleged human rights violations in
prisons/police torture have proved to be major hurdles
in acceding extradition requests from India to other
countries, especially the UK with the European
Commission on Human Rights (ECHR) taking a strict
note of the same.
Possibility of fair trial
 Possibility of fair trial in requesting state, post
surrender - Before an extradition request is
processed it should be ensured that post-surrender
the fugitive will get a fair trial in the requesting
country. However, it may be noted that this entails
only a broad examination of judicial procedures in
the requesting state. This principle also needs to be
read subject to the principle of non-inquiry, which
stipulates that the judicial process in the requesting
country is not to be subjected to finicky evaluations
and fairness of judicial procedure in requesting
country is not to be normally questioned.
Possibility of a fair trial
 However, this is not an absolute principle
and the requested state may question the
procedure of the requesting state if the
same is prima facie contrary to
fundamental principles of justice and
there is a high risk of fugitive being
prejudiced by the process of extradition.
The apprehension of denial of fair trial
has to be substantiated with cogent
material.
Possibility of a fair trial
 In a case where a man chose to reside in
USA, received his education and worked
there, was not allowed to plead threat or
denial of fair trial in US in order to evade
extradition. In the context of extradition
from UK, issues such as human rights
violations in jails, minority rights, possible
political motivation, have weighed heavily
with UK authorities in not acceding to
extradition requests made by India.
Extradition offence
 Section 2(c) defines Extradition Offence as:-

  Offence provided in the extradition treaty with

the foreign states; (with respect to treaty states)
  Offence punishable with imprisonment not less
than one year under India Law or law of a
foreign state. (non treaty states)
  Composite offence - offence committed wholly,
or in part, in India and Foreign State, which
would constitute an extradition offence in India.
Who may be extradited?
 A fugitive criminal may be extradited.
 A fugitive criminal as per section 2 (f) is
a person who is accused or convicted of
an extradition offence within the
jurisdiction of a foreign state.