Extradition procedures are regarded as an essential tool in the fight against transnational crime. Critically evaluate the developments in extradition law following the events of September 11, 2001.
Extradition is the surrender of a person by one state to another, the person being accused of a crime in the requesting state or unlawfully at large after conviction. In international law, there is a compromise that a state is not obliged to surrender an alleged criminal to a foreign state as one principle of sovereignty as every state has legal authority over the person within its boundaries.
Extradition is the oldest and most favourable constituent found in international law regarding criminal law. It derives from ancient societies such as Chinese and Egyptian. The first recorded extradition treaty originates from a peace treaty signed between Ramses II, Pharaoh of Egypt, with the Hittites, which lay down that refugees requested by each sovereign should be returned back.
Extradition has been mostly the main instrument used when dealing with relations between the states, however its purpose and role, through ages, has been subject to drastic changes. In the early 1800s, extradition was used as a mean for returning fugitives which were convicted of religious or political charges. It was a way seen by the states to their political order.
Belonging to present day, the focal point on extradition has experienced radical changes to common serious crime, which in a number of ways has substituted political offences as the key challenge to the nation's stability. However, paradoxically, actually political offences are barred generally from extradition regimes.
The most fundamental developments regarding extradition have evolved mainly throughout the last 50 years, regardless of its long and antique history. This is due to the fact that people travel more and more around the world and with the rise of criminality on both sides of the countries, especially as the countries deal with different legal systems.
The centre point for extradition begins with the investigating judge or the prosecutor deciding if the suspect or accused person dossier is found in a foreign country, and to investigate whether it is likely to have the suspect extradited and to stand up for trial.
Shearer raised the following point in his article, at International level, states does not have to extradite suspects as there is no legal or moral duty, mainly as a result of the lack of specific binding agreement. The civil law countries have entered into agreements with states whose domestic law have an authority in such connection. And the outcome of it is that many countries have bilateral extradition treaties between themselves. However, even there are bilateral countries, this is insufficient to address on increase amount of extradition relations. Following this, there has been a development towards substitute's extradition bases.
The result is that historically and even today, most countries have at least some bilateral extradition treaties and this remains the predominant and still, for many states, the exclusive basis for extradition. However, considering the ever-expanding list of nations, it is safe to say that the number of bilateral extradition treaties is clearly insufficient to address the growing need for extradition relations. And it is this reality, which has led to a trend toward alternative bases for extradition. The following is a brief overview of the network of instruments that ground modern extradition, as well as alternative approaches to treaty based relations.
This has led to the creation of many extradition treaties and agreements, as there is no international obligation. Most countries have bilateral treaties signed among them. However, there are some countries that have not signed all of them, for example United States.
There are bars to the extradition: (1) the failure to fulfil dual criminality: the act must be a crime which is punishable by both countries, so as an extradition may be sought.
(2) Political nature of the act: many countries are unwilling to extradite suspects which are involved in political crimes.
(3) Possibility of certain forms of punishment: some countries object that a person is extradited because the suspect may face torture or receive capital punishment.
(4) Citizenship of the person in question: there are countries that prefer to hold trials for their own citizens rather that to extradite them.
Countries such as Canada or on the whole of the European nations, may refuse to extradite if it is imposed on the suspect death penalty sentence, however they may extradite, if guaranteed such will not be the circumstance. The case of Soering v United Kingdom in 1989, it was held that it was not conform to Article 3 of the European convention on human rights to extradite a person from the United Kingdom to the united nation in a capital case. The defendant argued that he if he as to be extradited him will be sentenced to death. The court therefore, based on the evidence obtained, upheld his plea.
This important principle is relied on when a person can establish to the court that he has reasonable grounds to fear if extradited, there is a risk of punishment or degrading inhumane treatment.
The human rights issues as regards to extradition has for a long time been a matter of discussion. In the framework of extradition, when evaluating the human rights issues, two criteria could be used. Firstly, the appropriate ones need to be identified under the fundamental human rights, when dealing with extradition. Secondly, as have been raised in the Soering case , when there are substantial grounds for believing that the extradite will face a real danger of being tortured or subject to inhumane and degrading treatment, the country may object to the extradition.
In Ng v Canada, a real risk test has been adopted following the UN Human Rights Committee. When there is a “blatant unjust”, violation to the principles of fundamental justice among others, the national courts seem to agree on the same grounds. The test has also been confirmed following the International Law Association, in Taipei Conference in criminal matters in 1998 and by the Conference on International Cooperation in Criminal matters in 1998.