Extradition: Legal Framework and Principles

Introduction

Extradition refers to the process where one state hands over an individual, either accused of a crime or a convicted criminal who has escaped, to another state. This process occurs at the request of the state seeking to prosecute or imprison the individual for crimes committed against its laws. Extradition is based on the principle "aut punier aut dedere," which means "either punish or surrender." The legal framework for extradition is primarily established through bilateral or multilateral treaties and the domestic laws of individual countries.

Within countries, extradition is governed by specific extradition acts, while between countries, it is managed through diplomatic treaties. The first systematic effort to define extradition was made by Belgium in 1833, which also enacted the first law concerning the right to asylum.

Although each state generally has full jurisdiction over individuals within its territory, there are instances where a state is unable to prosecute a criminal because the individual has fled to another country. Without extradition, justice cannot be fully served. Thus, countries adopt the practice of extradition, allowing them to hand over criminals to the affected state to ensure proper administration of justice.

Definition of Extradition in International Law

Oppenheim defines extradition as the delivery of an accused or convicted individual to the state where the crime was committed, or where the alleged criminal is currently located.

According to Black’s Law Dictionary, extradition is "the surrender by one state or country to another of an individual accused or convicted of an offense outside its own territory and within the territorial jurisdiction of the other, which, being competent to try and punish him, demands the surrender."

When an alleged offender is in a different territory than the state seeking jurisdiction, the lawful method to secure their return for trial is through an extradition request. Extradition typically occurs through a treaty between two states, and there is no obligation to extradite in the absence of such a treaty. Requests for extradition are made through diplomatic channels to the relevant foreign state. Upon receiving the request, the foreign government conducts a judicial investigation to determine if there is sufficient evidence under local law to justify the arrest of the fugitive. If a prima facie case of guilt is established, the fugitive is surrendered. Once extradited, the individual must be tried only for the offenses mentioned in the extradition request and no other crimes.

Rules for Extradition

In recent years, extradition treaties have generally adopted a "dual criminality" approach, meaning that a crime must be punishable in both countries involved for extradition to be possible. Older treaties, however, often specify a list of extraditable offenses. For example, the 1933 treaty between Albania and the United States lists more than two dozen crimes, including murder, rape, arson, and burglary. Many treaties stipulate that only crimes carrying a punishment of more than one year are eligible for extradition.

General Conditions for Extradition

• Existence of a Formal Treaty: A formal treaty between the states is usually required for extradition to occur.
• Political Offenses: Extradition is often denied if the offense is deemed political in nature.
• Military and Religious Offenses: Crimes related to military service, religion, or minor offenses are generally not subject to extradition proceedings.
• The Rule of Speciality: A person extradited cannot be tried for any offense other than the one for which extradition was requested.

Double Criminality

For extradition to occur, the crime in question must be an offense in both the requesting and surrendering states. This requirement is based on the principle of Double Criminality. In the Eisher Extradition Case, Gerhert Eisher, an alien communist convicted of certain offenses in America, fled to England. Although he was arrested by British police, a British magistrate ultimately discharged him because the offense of perjury, for which he was convicted in America, did not technically align with the offense of perjury in England. This case highlights the importance of the Double Criminality principle in extradition law.

Prima Facie Evidence

Before a fugitive criminal is surrendered to the requesting state, there must be prima facie evidence of their guilt. The requested state needs to be satisfied that such evidence exists. If there is no prima facie evidence, the fugitive cannot be extradited. For example, in Singh’s Case, the Nepalese government was convinced of the fugitive's guilt based on prima facie evidence before surrendering him to India.

Principle of Proportional Punishment

Extradition may be refused if there is a possibility that the individual will receive a disproportionately severe punishment compared to the severity of the offense. This principle is especially invoked to prevent violations of globally accepted human rights norms.

Extradition in India

India and the United Kingdom signed an extradition treaty on 22 September 1992, which was ratified on 15 November 1993. The treaty includes several key preconditions for extradition:

• Dual Criminality: The offense for which extradition is sought must be a crime in both countries.
• Punishment Severity: The crime must carry a punishment of more than one year in the requesting state.
• Death Penalty Exception: Extradition may be denied if the punishment is the death penalty unless the requesting state assures that the death penalty will not be imposed.
• Legal Process: A charge sheet must have been filed, and an arrest warrant issued in the requesting state.

State Position in International Law

States are not obligated to extradite an individual, though they may do so voluntarily or through treaties. While treaties can compel states to extradite criminals, they must still adhere to their own municipal laws and international conventions during