A PROJECT PROJECT REPORT REPORT ON EXTRADITION
Objective • •
To study what is Extradition and there issues, To study the cases related to Extradition in India.
Research Methodology This work is descriptive and analytical in nature. Secondary and Electronic resources have been largely used to gather information and data about the topic. Books and other references as guided by aculty of Sociology have been primarily helpful in giving this pro!ect a firm structure. "ebsites and articles have also been referred. ootnotes have been provided wherever needed, either to acknowledge the source or to point to a particular provision of law.
Introduction
The practice of extradition enables one state to hand over to another suspected or convicted criminals who have fled abroad.# It is based upon bilateral treaty law and does not exist as an obligation upon states in customary law.$ It is usual to derive from existing treaties on the sub!ect certain general principles, for example that of double criminality, i.e. that the crime involved should be a crime in both the states concerned,% and that of speciality, i.e. a person surrendered may be tried and punished only for the offence for which extradition had been sought and granted.& In general offences, offences of a political character have been excluded, but this would not cover terrorist activities.' It is common for many treaties laying down multiple bases for the exercise of !urisdiction to insist that states parties in whose territory the alleged offender is present either prosecute or extradite such person.( )any treaties include the automatic inclusion within existing bilateral extradition treaties which states parties to such treaties of the offence concerned.* )any states will not allow the extradition of its nationals to another state,+ but this usually in circumstances where the state concerned has wide powers to prosecute nationals for
1 efer -xford ictionary / Thesaurus, 0ulia Elliot, #% th edn, p.$(' 2 See the !oint declaration of !udges Evenson , Tarassov, 1uillaume and 2guilar )audsley, the 3ockerbie
case I40 eports, #55$pp%,$& 3 See, Government of Denmark v .Neilsen 6#5+&7$2llE+#8 United States Government v. Mc Caffey6#5+&7$2llE'*9
4 See, -ppenhaim:s International 3aw, p.5(# 5 See, the European 4onvention on the Suppression of Terrorism, #5**8 the )c)ullen 4ase,*& 20I3
#5+9, p.&%&, also note the Times, $' 0une #5+', p.# which said political offences has a loophole known as terrorism. 6 See ;ome -ffice
?@. 7 See the ;ague 4onvention for the Suppression of unlawful SeiAure of 2ircraft, #5*9 =article +@ 8 See the rench Extradition 3aw of #5$*, article %=#@, Basic 3aw of the ederal epublic of 1ermany,
article #(
offences committed abroad. -nce must also note the relevance of ;uman ights law to the process of Extradition.5 The following rational considerations have conditioned the law and practise to extradition a@ The general desire of all states to ensure that serious crimes do not go unpunished. reCuently a state in whose territory a criminal has taken refuge cannot prosecute or punish him purely because of some technical rule of criminal law or for lack of !urisdiction. Therefore to close the net round such international offenders, international law applies the maxim ‘aut punier aut dedere’ D the offender must be punished by the state of refuge or surrendered to the state which can and will punish him. b@ The state on whose territory#9 the crime has been committed is best able to try the offender because the evidence is more freely available there, and that the state has the greatest interest in the punishment of the offender, and the greatest facilities for ascertaining the truth. It follows that it is only right and proper that to the territorial state should be surrendered such criminals as have taken refuge abroad. There are two types of extradition treaties list and dual criminality treaties. ## The most common and traditional is the list treaty, which contains a list of crimes for which a suspect will be extradited. ual criminality treaties, used since the #5+9s, generally allow for extradition of a criminal suspect if the punishment is more than one year imprisonment in both countries.#$ -ccasionally the amount of the time of the sentence agreed upon between the two countries is varied. >nder both types of treaties, if the conduct is not a crime in both countries then it will not be an extraditable offense. 9 See the Soering case, the European 4ourt of ;uman ights, #5+5, Series 2,o.#(# 10 See, 0.1.Strake, Intoduction to International 3aw, p.%'$, #9 th edn, 2ditya Books Butterworths, F
territory can cover for this purpose, also ships and aircraft registered with the reCuesting stateG8 also see 2rt icle #( of the Tokyo 4onvention of #& September #5(% on F-ffences and 4ertain -ther 2cts 4ommitted on Board 2ircraftG 11 en.wikipedia.orgHwikiHExtradition 12 httpsHHwww.ag.gov.auHwwwHagdHagd.nsfH
2n extradition treaty reCuires that a country seeking extradition be able to show that#% •
The relevant crime is sufficiently serious.
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There exists a prima facie case against the individual sought.
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The event in Cuestion Cualifies as a crime in both countries.
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The extradited person can reasonably expect a fair trial in the recipient country.
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The likely penalty will be proportionate to the crime.
TERRITORIAL ISSUES WITH EXTRADITION:-
"ith the increasing rapidly and facility of international transport and communications, extradition began to assume prominence in the nineteenth century, although actually extradition arrangements date from the eighteen century. Because of the negative or neutral attitude #& of customary international law on the sub!ect, extradition was at first dealt with by bilateral treaties. These treaties, in as much as they affected the rights of private citiAens, reCuired in their turn alterations to the laws and statutes of the states which had concluded them. ;ence the general principle became established that without some formal authority either by treaty or by statute, fugitive criminals would not be surrendered nor would their surrender be reCuested.#' Issues of international law relating to extradition have proven controversial in cases where a state has abducted and removed an individual from the territory of another state without 13efer, )alcolm Shaw J4, International 3aw, 'th edition, 4ambridge >niversity
the one hand international customary law imposed no duty upon states to surrender alleged or convicted offenders to another state, while on the other hand it did not forbid the state of refugee to deliver over the alleged delinCuent to the state reCuesting his surrenderG 15 Ibid p.%'%
previously reCuesting permission, or following normal extradition procedures. Such abductions are usually in violation of the domestic law of the country in which they occur, as infringements of laws forbidding kidnapping. )any also regard abduction as violation of international law K in particular of a prohibition on arbitrary detention. 2 small number of countries have been reported to use kidnapping to circumvent the formal extradition process otable or controversial cases involving abduction of foreign citiAens •
)orton Sobell from )exico by the >nited States in #5'9 Engineer
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2dolf Eichmann from 2rgentina by Israel in #5(9
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Isang Lun from "est 1ermany by South ?orea in #5(* 6'7 como!e
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onnie Biggs from BraAil by independent bounty hunters in #5+# "#ie$ "r%in ro&r%r'
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)ordechai Manunu from Italy by Israel in #5+( n(c)e%r "ec#nici!n
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)anuel oriega from nited States following a >S invasion in #5+5 =although this was arguably taking an enemy head of state as a prisoner of war @ politician and soldier
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;umberto NlvareA )achaOn from )exico by the >nited States rug Enforcement 2dministration in #559
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)ir 2imal ?ansi from
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)artin )ubanga from Pambia to 1uantanamo Bay by the >nited States in $99$
)any claims have arisen in the context of economic issues whereby some states, particularly the >nited States, seek to apply their laws outside their territory#( in a manner which may precipitate conflicts with other states. "here the claims are founded upon the territorial and 16 See !olmes v. "an#lades$ "iman Corporation 6#5+57#24###$8 %ir India v. &i##ins
6#5+97#"3+#'8 ''(C v. %rabian %merican (il Company and %ramco Services 59I3,pp.(#*.($$, note the above cases portray that there is a general presumption against the extraterritorial application of legislation
nationality theories of !urisdiction, problems do not often arise, but claims made upon the basis of the so called Qeffects: doctrine have provoked considerable controversy. This goes beyond the ob!ective territorial principle to a situation where the state assumes !urisdiction on the grounds that the behavior of a party producing Qeffects: within the territory. This is so even though all the conduct complained of takes place in another state.#* The effects doctrine has been energetically maintained particularly by the >.S in the area of antitrust regulation.#+ The classic statement of the 2merican doctrine was made in US v. %luminumCo. (f %merica,#5 in which the court declared that Fany state may impose liabilities, even upon persons not within its allegiance, for conduct outside its borders that has conseCuences within its borders which the state reprehends.G )*
R
INTERNATIONAL STRAINS
The refusal of a country to extradite suspects or criminals to another may lead to international relations being strained. -ften, the country to which extradition is refused will accuse the other country of refusing extradition for political reasons. Some >.S. political observers and officials of the state of
other heads of !urisdiction such as the ob!ective territorial principle, where part of the offence takes place within the !urisdictionG 18 See, 2.M.3owe, S
Sherman 2ntitrust 2ct #+5( 19 #&+.$d&#(=#5&'9 20 Ibid ,p.&&% . This approach was reaffirmed in a series of later cases see US v. +imken ,oller "earin# Co.
+%.Supp.$+&=#5&5@, US v. +$e &atc$ makers of S-iterland Information Center Inc +$.Supp.&9, US v. General 'lectric Co.+$.Supp*'%
>nited States$# and the death penalty by refusing to extradite Ira Einhorn despite the facts that an independent court =rather than the rench president or prime minister@ decides extradition cases in rance and that rench executives cannot intervene. Einhorn was extradited after three years. The matters are often complex when the country from which suspects are to be extradited is a democratic country with a rule of law. Typically, in such countries, the final decision of extradition lies with the national executive = prime minister , president or eCuivalent@. ;owever, such countries typically allow extradition defendants recourse to the law, with multiple appeals. These may significantly slow down the procedures. -n the one hand, this may lead to unwarranted international difficulties, as the public, politicians and !ournalists from the reCuesting country will ask their executive to put pressure on the executive of the country from which extradition is to take place, while that executive may not in fact have the authority to deport the suspect or criminal on their own. -n the other hand, certain delays, or the unwillingness of the local prosecution authorities to present a good extradition case before the court on behalf of the reCuesting state, may possibly result from the unwillingness of the countrys executive to extradite. or example, there is at present a disagreement between the >nited States and the >nited ?ingdom about the Extradition 2ct $99% =text here@ that dispenses with the need for a prima facie case for extradition.
It is important to emphasise, however, that even had the treaty been ratified by the >.S., the treaty would still be oneRsided, because it stipulates that extradition reCuests from the >? to the >.S. must show a reasonable case that the suspect committed the offense, but reCuests from the >.S. to the >? have no such reCuirement imposed on them.$$
21 -ne famous example of the rench custom in practice is the case of the director oman
nited States in #5** but fled to rance before sentencing. rom there, as a rench citiAen, he cannot be extradited to the >nited States. The rench government has pointed out that .S. authorities so reCuested. >.S. authorities declined that possibility 22 httpHHen.wikipedia.orgHwikiHTreaty
This came to a head over the extradition of the atwest Three from the >? to the >.S., for their alleged role in the Enron fraud, with various British political leaders weighing in to attack the British governments handling of the issue. The former leader of the >?s 3iberal emocrat party, Sir )enAies 4ampbell, had argued that the >.S. had not ratified the treaty primarily due to the influence of what he calls the Irish lobby K which, he said, is opposed to the treaty because it could make it easier for Britain to have alleged I2 terrorist suspects extradited from the >.S. The precedent of the atwest Three may also be used to extraditeHprosecute ?s business community, some of whom stated that they were avoiding doing business with or in the >.S., because of legal concerns such as the extradition treaty, among other concerns.
INDIAN CASES WITH REGARD TO EXTRADITION
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,am "abu Sa/ena v. State)012 The provision in Cuestion is the Section * of the Indian Extradition
2ct, #59%. r.am Babu Saxena was an employee under the >< 4ivil Service and was deputed to Tonk state. Tonk was an Indian state and it had an extradition treaty with the British government according to which both states were bound to extradite certain persons who were accused of certain specified crimes. r. am Babu Saxena was later on living in ainital. It was contented that while serving Tonk state he committed crimes of extortion under section %+% and cheating under section &$9. r.am Babu agreed in defense that the British government had an extradition treaty with the Tonk state and that treaty did not provide for crimes for which his extraditionUUn was being claimed. ;ence he could not be extradited under section * of the Extradition act #59%. The Supreme court held F the act does not derogate from any such treaty when it authoriAes the Indian 1overnment to grant extradition for some additional offences, thereby enlarging, not
23 2I#5'9S4#''
curtailing, the power of the other party to claim surrender of criminals. or does the act derogate in the true sense of the term from the position of an Indian sub!ect under the treaty of #+(5.G D$aram +e3a’s Case12
ahram Te!a was a managing director of 0ayanti Shipping
4orporation, committed embeAAlement and bungling of croces of rupees. ;e fled from one country to another to escape his arrest. "hen he was in Ivory coast the 1overnment of India reCuested the 1overnment of Ivory 4oast to extradite haram Te!a so that proceedings against him could be started in India. The 1overnment of Ivory 4oast refused to extradite haram Te!a on the ground that there was no extradition treaty with India. 3ater on when haram was in 3ondon the Indian 1overnment reCuested his extradition as Indian had an extradition with England under which both countries are bound to extradite the accused of each other who runs away after committing crimes in either country. 4onseCuently aram Te!a was extradited to India where he was convicted for embeAAlement and bungling of crores of rupees of 0ayanti Shipping 4orporation. Naval (fficer '/tradition Case12
4ommander Eli!ah Ebrahim 0hirhad of Indian avy was
charged by the government of India with misappropriating s.#%lakhs of the aval
In -ctober #5*( the Indian 1overnment successfully
concluded extradition proceeding in 3ondon against )anmohar arang and his brother -m
Conclusion Extradition is the official process by which one nation or state reCuests and obtains from another nation or state the surrender of a suspected or convicted criminal. Between nation states, extradition is regulated by treaties. Between subRnational regions =for example, the individual states of the >.S.@, where extradition is reCuired by law it is more accurately known as rendition 2ristotle said man is gregarious, if he can stay alone he must either be a god or a beast. In the same way state is gregarious in nature. It must depend on its fellow states to survive. 2s said before that many tensions have been created in regard to extradition of nationals, especially politically powerful nationals, to another state for prosecution. Every state is dependent on another for some reason or another. 2bducting a national from their state for purposes of committing a crime in another state is violation of rules of customary international law. Even the >S has soften its position in 2ntitrust laws in 4aker %ir-ays v. Sabena.The sub!ect of every state is its sub!ects. It is a matter of fact that the state is duty bound to protect its sub!ect matter or its nationals. The consensus in international law is that a state does not have any obligation to surrender an alleged criminal to a foreign state, as one principle of sovereignty is that every state has legal authority over the people within its borders. o country in the world has an extradition treaty with all other countries8 for example, the >nited States lacks extradition treaties with over fifty nations, including the
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2.M.3-"E ,
Butterworths
)234-3) S;2" J4, International 3aw, 'th edition, 4ambridge >niversity
