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Extradition

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Extradition is a formal process by which a criminal suspect held by one government is handed over to another government for trial or, if the suspect has already been tried and found guilty, to serve his or her sentence.

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Extradition treaties

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. Since there is no such international obligation, but since most countries desire the right to demand such criminals of other countries, a web of extradition treaties has evolved; most countries in the world have signed bilateral extradition treaties with most other countries.

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

An extradition treaty spells out the terms of an extradition. It includes a list of crimes for which a person can be extradited, or else covers them all with descriptions such as "any crime for which a prison term could exceed two years". It is usually reciprocal in terms of conditions, but there are exceptions. Generally, an extradition treaty requires that a country seeking extradition be able to show that:

  • The relevant crime is serious.
  • There exists a prima facie case against the individual sought.
  • The event in question qualifies as a crime in both countries. This is known as the principle of 'double-criminality'.
  • The extradited person can reasonably expect a fair trial in the recipient country.
  • The likely penalty will be proportionate to the crime.

Many countries reserve the right to refuse to extradite an individual if, in the government's opinion, they are being sought for a political crime. Many countries, such as Mexico, Canada and most European nations, will not allow extradition to nations with the capital punishment unless they are assured that the death penalty will not subsequently be imposed. Such restrictions are normally clearly spelled out in the extradition treaties that the US government has agreed upon. They are however controversial in the United States, where the death penalty is practiced, as it is seen by many as an attempt by foreign nations to interfere with the US criminal justice system. In contrast, pressures by the US government on these countries to change their laws is perceived by many in those nations as an attempt by the United States to interfere in their sovereign right to manage justice within their own borders.

In certain countries, such as France and Germany, the law bars the government from extraditing anyone who is a citizen of the state. This is reflected in the extradition treaties to which such countries are a party. Such restrictions are occasionally controversial in other countries when, for example, a French citizen commits a crime abroad and then returns to his home country to avoid prosecution1. The laws of France and Germany do, however, allow for the trying citizens in their home country for serious crimes committed abroad. Those governments will prosecute such a case on the demand of the foreign country in which the crime was allegedly committed.

The usual extradition treaty safeguards relating to double-criminality, the presence of prima facie evidence and the possibility of a fair trial have been waived by many European nations for a list of specified offences under the terms of the European Union arrest warrant. The warrant entered into force in eight European Union (EU) member-states on 1st January, 2004. Defenders of the warrant argue that the usual safeguards are not necessary because every EU nation is committed by treaty, and often by legal and constitutional provisions, to the right to a fair trial, and because every EU member-state is subject to the European Convention on Human Rights.

Extradition and abduction

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 previously requesting 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. Many also regard abductions as violations of international law--in particular of a prohibition on arbitrary detention. Controversial cases have included the abduction:

Extradition to federations

The federal structure of some nations, such as the United States (US), can pose particular problems with respect to extraditions. This is because foreign countries do not have official relations with sub-national units such as the individual states composing the US; rather, they have relations with the federal government. This means, for example, that the federal government may, in a particular case, certify to a foreign nation that the death penalty will not be sought, and that if it is pronounced it will not be applied, but some contend that such a commitment is not binding on state courts when the matter is of state jurisdiction. On the other hand, should an individual state decide to execute a person extradicted, the federal government would be in violation of its commitment with respect to foreign nations and to what it has agreed upon by treaty.

Less important problems can arise due to differing qualifications for crimes. For instance, in the United States, transportation across state lines is a prerequisite for certain federal crimes (without transportation, crimes such as murder etc. are judged by state governments, except in certain circumstances such as the killing of a federal official). This transportation clause is, understandably, absent from the laws of many countries. Extradition treaties or subsequent diplomatic correspondence often include language providing that such criteria should not be taken into account when checking if the offense is an offense in the country from where extradition should take place.

Footnote

  1. One famous example of the French custom in practice is the case of the director Roman Polanski. Polanski was convicted of statutory rape in the United States in 1977 but fled to France before sentencing. From there, as a French citizen, he cannot be extradited to the United States. The French government has pointed out that Polanski could be prosecuted in France if the US authorities so requested.

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