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No one can outturn the long arm of the law, however with increasing globalisation, travel becoming faster, more efficient and more affordable; it has become conveniently very easy for people to commit crimes and flee the country to evade trials.
This is when extradition comes into picture, the requesting country call upon the foreign country to deport the person back to the requested country for the purpose of facing trial investigation.
The name Vijay Mallya today is synonymous with the term ‘extradition’. The liquor baron fled India in 2016 on account of a ₹9000 Crore bank fraud. In 2017, he was arrested by authorities in the United Kingdom, but made bail and subsequently took the legal recourse. In a win to India, the UK High Court rejected Mr. Mallya’s plea to approach the Supreme Court, effectively creating a setback to Mr. Mallya, where he may be forced to return to India in the following days.
When one reads about extradition, a general question that pops-up in the mind is that why to bring back the person to the requested country rather investigate or prosecute in the foreign country itself, thus, saving time, money and possibility of conflict arising between the states. This is because different states have different legal proceedings and also, witnesses and evidence are present in that particular country. Furthermore, it is imperative for the country to get rid of certain individuals for security reasons.
What is Extradition?
In simple words, extradition can be understood as the formal transfer of an individual from the jurisdiction of one country to another upon the request of one of the countries.
The Supreme Court of India defines the extradition as ‘the delivery of an individual from one state to another in light of the crimes that an individual is accused of or convicted which are also justifiable in the foreign state’s courts.’
The person who is to be extradited is termed as a fugitive. A fugitive is a person who has fled captivity and/or is in hiding.
Extradition, although practical, is customary. This means that every country is considered a sovereign, and no country can impose its will to extradite an individual from another country. This effectively means that a country could deny handing over a criminal to the requesting state upon its discretion and there lies no obligation to abide.
However, countries are bound to respect treaties and agreements that that govern extraditions with certain caveats laid down by the principles of extradition. These treaties lay down what crimes call for extradition.
Principles governing extradition treaties
In order to maintain the equity and parity in the extradition process, certain principles guide the extradition process. These include Principles of Natural Justice such as Audi Alteram Partem (every man must be heard) which allow the fugitive to contest wrongful deportation.
Apart from the Principles of Natural Justice, the following are certain Doctrines/principles that govern extradition treaties:
- Doctrine of Speciality:
The Doctrine of Speciality is foundation to Extradition Law and has developed over the years through its inclusion in numerous Bilateral and Multilateral treaties. The Doctrine, in essence, allows the sending country to lay restrictions on the receiving countries as to what crimes the receiving country can sue the fugitive for.
For example, if there exists an Extradition Treaty between India and USA and A drug cartel kingpin is deported to the USA, he/she can only be tried for the crimes he committed in the USA and not for any crime he committed in India.
This doctrine ensures that no country takes sovereignty of another country in its own hand.
- Doctrine of Dual Criminality:
The Doctrine of Dual Criminality lays base as to whether the country will extradite an individual or no. This Doctrine permits extradition from one country to another only if the act is a crime in both the sending state and requesting state.
For example, Saudi Arabia may not be able to extradite a citizen from Canada for blasphemy under Shari’a law. However, China may be allowed to extradite a citizen from Malaysia for a crime such as terrorism.
- Principles of Human Rights:
Numerous countries would be unwilling to extradite individuals on the grounds of human rights and humanity as the fugitive may be subject to inhumane situations amounting to torture. Furthermore, the policy followed by such country may also guide its conscience. For example, A country such as The Netherlands may hesitate to deport a criminal to The USA where he may face a death sentence as The Netherlands is fundamentally against the Death Penalty.
Extradition happens to be an instrument governed by customary and international law. The following are certain International Conventions that involve extradition.
- The European Convention on Extradition:
The European Convention on Extradition is an effective agreement between all members of the erstwhile Council of Europe in 1957 to extradite any individual on the request of another country. In 2012, this agreement was opened to countries outside the European Union as well, with Israel, South Africa and South Korea. This treaty governed the extradition process between European Union Countries till 2001.
- The European Arrest Warrant:
The European Arrest Warrant (EAW) is an extension of the European Convention on Extradition. Unlike the previous convention or treaties, the EAW does not function on diplomatic channels and can be used to facilitate deportations for crimes, regardless of the apprehension of the sending state.
However, the EAW does follow the Principle of Double Criminality wiz. It prescribes certain crimes to provide grounds to allow extradition such as rape, xenophobia, counterfeiting and terrorism.
The European Arrest Warrant system is formed in a framework which intricately lays down the procedure, time limitations and exceptions as to who can be held from deportation.
- Inter-American Convention on Extradition:
The Organization of American States brought about an obligation upon themselves to extradite individuals between signatories under the Inter-American Convention on Extradition. The crimes that permit extradition are mentioned in Article 3 of the treaty, which also sees the applicability of Double Criminality, where the average of sentence for a particular crime is taken in order to punish and individual. The treaty also states exceptions to who can be extradited under Article 4.
The Inter American Convention on Extradition also includes certain sub-treaties such as the Inter-American Treaty Convention to Prevent and Punish Torture, which allows member states to deport individuals who are involved in torture and related crimes on the basis of that crime.
Apart from the aforementioned conventions, the United Nations has prescribed a Model Extradition Treaty so as to comprehensively cover all principles of Extradition to ensure equity and justice.
As time has passed, the complexity and intricacy of extradition situations have also increased. Following are some developments which highlight the same
- The Julian Assange Case:
The case of extradition involving charges of rape and sexual assault on the founder of WikiLeaks Julian Assange was one that rattled the world with the complexities of diplomatic law and extradition law.
In this particular instance, Mr. Assange fled Sweden to the United Kingdom after being accused of sexual assault and rape. He was subsequently arrested by British authorities and was facing extradition to Sweden. However, he sought refuge in the Ecuadorian Embassy on grounds of threat to human rights, which was subsequently granted.
However, he often faced issues with the Ecuadorian authorities as well, who subsequently cut his internet and also laid house rules, which included conditions asking him to take better care of his cat.
However, in 2019, Mr. Assange was arrested from the London Embassy and subsequently faced charges on numerous counts in UK, Sweden and USA.
- Edward Snowden Case:
One of the most popular cases of extradition, Mr. Snowden was a security attaché and a sub-contractor with the Central Intelligence Agency, responsible for intelligence collection for the USA. In the course of his employment, he leaked certain classified information about American Intelligence, effectively showing that the USA spied on countries like China and Spain. This Deemed Mr. Snowden as a whistleblower, facing arrest in his home country.
In June 2013, Mr. Snowden fled to Russia, where he still resides. However, due to the presence of local laws that prevent extradition, Mr. Snowden is safe from facing extradition to the USA anytime soon. However, he was commended for his acts.
- The Mehul Choksi Case:
The case involving Mr. Choksi was one that stirred great controversy in India. Mr Choksi is wanted in India for counts of criminal conspiracy, corruption, money laundering and criminal breach of trust on account of the Punjab National Bank Loan Fraud.
After being accused of his crimes, Mr. Choksi fled to Antigua, where he purchased citizenship under am investor scheme, in light of avoiding deportation to India for his Trial.
The Antiguan authorities are naturally reluctant to extradite one of their citizens as they believed he would be subject to inhumane conditions in India. Thus, India is facing a difficult time retrieving Mr. Choksi from Antigua.
- The Ravi Pujari Case:
Ravi Pujari was a popular gangster in the early 2000s who was known for threatening eminent personalities in the film and real estate industries. He was wanted by officials on counts of murder of Mr. Kukreja, a popular builder and on attempt to murder charges by Mr. Suresh Wadhwa.
Mr Pujari fled India and remained a fugitive in numerous countries such as Australia, The United Arab Emirates, Burkina Faso and Senegal. His threat calls to a Kerala MLA traced his location to Senegal, where he lived under the alias of Anthony Fernandez.
The fact that India had extradition arrangements with Senegal allowed Mr Pujari to be extradited to Bangalore in the subsequent days.
In recent times, a globalized world with easy travel & communication and complex geopolitics has increased the importance of extradition both in terms of international and municipal law. Crimes are often committed remotely, which may affect more than just one country at a time.
At the same time, the lack of a common global consensus on extradition i.e. no country has an agreement with all other countries on extradition means that a fugitive always has options to seek refuge.
Furthermore, the fact that most extradition treaties exclude political and military crimes from the list makes it difficult to answer or account more heinous crimes such as genocide and forced starvation, with no principles of justice being followed.
The complex geopolitics and unwillingness of a country to send a fugitive to the requesting country can negatively impact the principles of natural justice by allowing bias to seep in as adherence to extradition is completely customary.
Lastly, the lack of double criminality may lead to numerous crimes going unnoticed as certain acts may not be punishable in one country while they are in others. For example, whistleblowing is a crime in the United States of America and China, but is not so in Sweden. Thus, extraditing a fugitive for a crime of this nature would be close to impossible.
Extradition happens to be an important tool in ensuring law and justice today. However, the irregularity in its application between nations poses a threat to the principles of justice.
However, it is essential to ensure a balance between extradition law and rights of an individual. It can be understood that this field is a work in progress as the customary nature of this law vis a vis the standing nature of human and individual rights makes the balancing act one of great difficulty.
This essentially means that extradition must at the least be in line with ensuring basic human rights of an individual. Effectively, every country must comply with extradition request unless the fugitive has a compelling reason to prevent such action.
It is safe to say that the existing international framework does undoubtedly increase the effectivity of law enforcement. But as a caveat, it is essential to ensure to ensure the safety of the individual is ensured before the interest of the other country so as to ensure that extradition is practical both in terms of respect and practice.
Author: Kshitij Kasi Viswanath from KPMSOL, NMIMS.
Editor: Priyanshu Grover from Symbiosis Law School, NOIDA, Uttar Pradesh.