This article has been written by Harasees Kaur, a student of Lovely professional university, Phagwara.
As air traffic increased, the number of cases of criminals fleeing to another state after committing a crime increased. Due to a lack of jurisdiction, a state cannot punish a person who has committed a crime elsewhere. As a result, these individuals are turned over to the state in which the crime was committed. Extradition refers to the process of an accused or convicted person’s surrender. The historic practise of the governments to give asylum is in opposition to the surrender of a person. Therefore, extradition is used in situations where the custom of providing sanctuary is broken.
Definition
The Latin words ex and traditum are the source of the word extradition. Typically, it might be interpreted as “delivery of criminals,” “surrender of Fugitive,” or “handover of Fugitive.” Oppenheim defines extradition as the transfer of an accused or convicted person from the state on whose territory they chance to be at the moment to the state where they are charged with, or have been found guilty of, a crime.
For the following reasons-:
A criminal gets extradited to the state making the request.
- Crime suppression: extradition is a step in the right direction. Normally, due to lack of jurisdiction or certain technical requirements of criminal law, a person cannot be punished or prosecuted in a state from which they have fled. Therefore, extradition of criminals is done so that their crimes might be punished.
- Deterrent effect: Extradition serves as a reminder to criminals that they cannot evade justice by relocating to another state. Therefore, extradition has a deterrent impact.
- Protecting the interests of the Territorial state: By surrendering criminals, the territorial state’s interests are protected. If a certain state has a policy of not extraditing criminals, then only that state should be used as a haven for them. As a result, the state would attract foreign criminals, which would be harmful for it because, if they were to be set free, they may commit crimes there once more.
- 4. Reciprocity—Reciprocity is the foundation of extradition. A state that is asked to turn over a criminal today could need to ask for extradition of that criminal at a later time.
- International co-operation – Extradition is carried out because it is a step towards achieving international cooperation in resolving global socioeconomic issues. As outlined in paragraph 3 of Article 1 of the UN Charter, it thereby satisfies one of its purposes.
- Evidence – Due to the fact that the evidence is more easily accessible in the state where the crime was committed, only that state is best positioned to prosecute the defendant.
The underlying tenets of extradition are-:
That every State has full authority over everyone who is on its soil. However, it is possible that there will be instances where a criminal flees to another nation. In such a circumstance, the afflicted nation is rendered powerless to exercise jurisdiction to punish the offending party. For peace and order, this scenario is unquestionably very bad. Only when there is international cooperation among the States. If there was no collaboration in the administration of justice, the incapacity of a State to exercise its jurisdiction within the territory of another State would significantly jeopardise the maintenance of law and order. The common practise of extraditing a person accused or found guilty of a crime back to the State where the crime was committed serves as an example of how national decision-makers are conscious of the social necessity of jurisdictional cooperation. can peace and order be maintained in such a circumstance. There is a social need to punish these criminals, and the notion of extradition has been accepted in order to meet this need.
The following are the principles of extradition:
- nationality
- refugee
- extraditable offence
- double jeopardy
- rule of specialisation
- rule of reciprocity
- political or military character
- conviction based on trial in absentia
The term “double criminality” relates to the description of the relator’s unlawful behaviour insofar as it violates the laws of the two different jurisdictions. The usual rule is that the crime for which extradition is sought must be one for which extradition is permitted under both the laws of the requesting and receiving states. Therefore, extradition is denied if any act is deemed criminal by the state seeking it and if it is not criminal in the place of refuge.
For instance, in the Eisler case from 1939, the fugitive Eisler was found guilty of being a CPUSA member yet was able to escape and travel to the UK. He was detained because the offence for which he was found guilty in the USA was not considered a criminal in the UK when he was apprehended and presented for trial before an English magistrate.
Extraditable offence:
The primary prerequisite for successful extradition is that the crime committed must qualify for extradition. Since extradition is only appropriate for more serious offences, most States’ national extradition laws restrict the list of offences that can be extradited to either a certain set of charges or offences that carry a defined level of punishment.
Double jeopardy
Double jeopardy is most commonly understood to mean that a person is being tried twice for the same crime. However, if you have been cleared or found guilty of breaking the law in a particular instance, the same government will not bring charges against you again (or punish you if you are found guilty). Guy Paul Morin is a prominent case, whose second trial resulted in his unjust conviction after the Supreme Court of Canada overturned the conviction from his first trial.
Rule of specialisation
This doctrine is predicated on the idea that whenever a state uses its formal procedures to extradite a person to another state for a particular offence, the requesting state must carry out its intended purpose of trying or punishing the offender only for the crime for which it agreed to extradition. The idea of specialisation was created to safeguard the requesting nation from abuse of its discretionary extradition statute.
A fugitive criminal cannot be tried for a crime other than the one for which he was extradited, but he can be tried for additional offences if he is apprehended again (US versus Rouscher, in which the US Supreme Court ruled that an extraditee could only be tried for the crime for which he was extradited and not for another, and R versus Corrigan, 1931, are two other significant cases).
Rule of reciprocity
Reciprocity, which is a component of the international principles of friendly cooperation among nations, is one of the legal bases for extradition in the absence of a treaty. Reciprocity emerges with regard to certain particular components of the procedure as a substantive necessity of extradition (whether based on a treaty or not).
Extradition of nationals
It is theoretically possible to extradite any person, regardless of whether they are a citizen of the requesting State, the recipient State, or a third State. But many countries never hand over a citizen to a foreign country. Does that imply that the perpetrator escapes justice? The response is unfavourable. In this situation, the requesting party must file a criminal complaint against any such person for the same offence in accordance with its laws.
Political or military character
The idea that the political criminal shall not be extradited is a crucial one in international law. For instance, in the Re Meunier case, the anarchist accused was accused of setting off two bombs in two barracks and a café. He committed the crime and then ran away to England. He was demanded by France. The accused claimed that because of the political nature of his crime, he could not be extradited. With the French Revolution of 1789, the practise of not extraditing for political offences was established. Additionally, it limits the range of extradition.
Importance of Extradition:
The universal aim of all states to prevent impunity for heinous crimes. A state cannot prosecute or punish a criminal who has sought sanctuary on its soil for no other reason than a technical legal quirk or a lack of jurisdiction. The maxim “aut punier aut didere” (the offender must be punished by the state of refuge or surrendered to the state which can and will punish him, or either punish or extradite) is therefore applied by international law to close the net around the fugitive offenders. Therefore, the necessity of extradition is caused by: a desire for criminal justice reform. It would be preferable if the offender was punished where the crime was committed (criminal jurisdiction’s territoriality).
CASE STUDIES-:
The Eastern District of Virginia grand jury purportedly looked into Julian Assange for computer-related crimes committed in the US in 2012. His asylum request was approved, and he has resided in the Ecuadorian Embassy in London ever since 2012. Following the loss of his asylum status and the subsequent arrest by the Metropolitan Police of UK in London, an indictment from 2017 was made public in 2019. In the indictment, Assange was charged with conspiring to hack computers in order to provide Chelsea Manning access to confidential information that he planned to leak to WikiLeaks. As stated in the indictment. Assange was charged with conspiring to hack a computer in order to provide Chelsea Manning access to confidential information that he planned to release on WikiLeaks. The maximum term for this offence, which is less serious than the charges brought against Manning, is five years in prison with the possibility of parole.
Assange was detained on April 11 by the London Metropolitan Police for failing to show up for court, and his extradition to the US is now a possibility. As a result of the likelihood that WikiLeaks’ founder and editor-in-chief would be extradited to the US to stand trial, news of his detention quickly spread on social media, particularly on Twitter and Facebook. Assange actively works to block this from happening and does not consent to his extradition to the US. There are now 18 federal accusations against Assange in the US after a grand jury added 17 extra espionage allegations stemming from his interactions with former US Army intelligence analyst Chelsea Manning on May 23, 2019. On July 15, 2019, documents surfaced that showed Assange had met with Russian hackers and other international hackers at the Ecuadorian embassy to influence the 2016 US presidential election.
On October 21, 2019, Assange attended a case management meeting at the court. Assange’s defence attorneys asked for a three-month delay so they could gather evidence, but Judge Vanessa Barrister dismissed their motion. James Lewis, the government’s chief prosecutor, and the US opposed any postponement. Both parties to the dispute requested extra time for planning in January 2020. The judge grudgingly consented, setting hearing dates for three weeks starting on May 18 and one week beginning on February 24.
Conclusion
Though in theory extradition appears to be a stage in the delivery of justice where an accused or convicted person is transferred to the state on whose territory the alleged crime has allegedly occurred after being found guilty of a crime by the state on whose territory the alleged criminal happens to be residing at the time, in reality extradition is heavily influenced by international diplomacy. Unless there is a suitable bilateral extradition treaty, political factors clearly come into play in this situation: The judiciaries of the two countries typically intervene in the extradition process. International ties may become strained if one government refuses to extradite offenders to another.