Extradition

Extradition (sometimes called rendition) is the procedure by which a person accused or convicted of a crime is formally transferred to a state where he is wanted for trial or to serve his sentence.

The purposes of an extradition are:

- Prosecution

Example: The investigating authorities make inquiries about a person suspected of committing several white-collar crimes. The person concerned does not appear for a hearing, so they are put on the wanted list at home and abroad. If this person is arrested abroad, their extradition may be requested with a view to concluding prosecution and to bringing them to court for trial.

- The execution of a custodial sentence.

Example: A drug dealer, convicted and sentenced to several years in prison, does not return from leave. He is then put on the wanted list at home and abroad. If arrested abroad, extradition may be requested in order that the drug dealer can serve the remainder of his prison sentence.

Extradition should be distinguished from expulsion and deportation:

- Expulsion is the strictest measure that can be ordered by the immigration authorities against a foreigner, and means that they are no longer permitted to remain on a particular territory. The person concerned is expelled in the interests of the security of the country in which they were staying. Their expulsion is ordered without a request by a third state.

- If a foreigner whose expulsion has been ordered does not comply with his duty to leave the country, he may be deported; i.e. the police will organize and supervise the ordered departure from the country.

Between states, extradition is regulated by treaties. Most are bilateral and specify the crimes that are extraditable, usually serious offences such as those punishable by imprisonment for at least one year.

No country in the world has an extradition treaty with all other countries; for example, the United States lacks extradition treaties with several nations, including the People's Republic of China, Namibia, and North Korea.

By enacting laws or concluding treaties or agreements, countries determine the conditions under which they may entertain or deny extradition requests.

Common bars to extradition include:

- Failure to fulfill dual 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 parties.

- Political nature of the alleged crime – most countries refuse to extradite suspects of political crimes.

- Possibility of certain forms of punishment – some countries refuse extradition on grounds that the person, if extradited, may receive capital punishment or face torture.

- Jurisdiction – jurisdiction over a crime can be invoked to refuse extradition. In particular, the fact that the person in question is own citizen causes a country to have jurisdiction.

- Citizenship of the person in question – some countries refuse extradition of own citizens, holding trials for the persons themselves. In some cases the suspect will not face criminal charges at all.

The request for extradition is normally made formally through the diplomatic channel, accompanied by the arrest warrant, information about the identity of the accused, and the basic facts of the offence. Often, the request will ask for provisional arrest pending arrival for all the necessary paperwork. In most states, the request will be scrutinized by the courts, where the accused can challenge it. Usually, the final decision will be taken by the executive, to which the domestic law will usually give discretion to refuse the request, subject only to treaty obligations.

The constitutions of many states, including some European states, prohibit the extradition of their own nationals, but their laws enable them to prosecute their nationals for serious crimes committed abroad. The problem created by the own nationals prohibition can be partly overcome by universal or quasi-universal jurisdiction regimes, although such regimes are limited to “international crimes”. The accused may successfully plead that it would be contrary to the human rights obligations of the requested state to extradite him to the requesting state. This is particularly so if there are grounds for believing that the accused may be tortured or subject to other cruel or inhuman treatment.

Extradition should be effected directly between the two states by the police of the extraditing state taking the person in their custody to the requesting state (and if by air or sea, preferably in an aircraft or ship registered in the extraditing state) and there handing him over to its police. A transit stop in a third state should not cause problems if the accused remains on the aircraft or ship. But once he leaves it there is the danger that he may challenge the lawfulness of his custody, and a request for extradition from the third state may then be needed.

There are also treaties providing for prisoners to be transferred from the state where they were convicted to serve their sentence in another state, normally their state of nationality. Such arrangements can be mutually beneficial: the first state gets rid of an undesirable, and the offender is nearer his family.

Domestic law and extradition treaties often provide that a “political offence” is not extraditable. This political exception is not required by international law, and must be clearly distinguished from provisions in domestic law or mutual legal assistance or extradition treaties. The political exception has been excluded in respect of some especially cruel offences, such as genocide and certain terrorist offences.

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