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In an extradition, one
jurisdiction Jurisdiction (from Latin 'law' and 'speech' or 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, the concept of jurisdiction applies at multiple level ...
delivers a person accused or
convicted In law, a conviction is the determination by a court of law that a defendant is guilty of a crime. A conviction may follow a guilty plea that is accepted by the court, a jury trial in which a verdict of guilty is delivered, or a trial by jud ...
of committing a
crime In ordinary language, a crime is an unlawful act punishable by a State (polity), state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definiti ...
in another jurisdiction, into the custody of the other's
law enforcement Law enforcement is the activity of some members of the government or other social institutions who act in an organized manner to enforce the law by investigating, deterring, rehabilitating, or punishing people who violate the rules and norms gove ...
. It is a cooperative law enforcement procedure between the two jurisdictions, and depends on the arrangements made between them. In addition to legal aspects of the process, extradition also involves the physical transfer of custody of the person being extradited to the legal authority of the requesting jurisdiction. In an extradition process, one sovereign jurisdiction makes a formal request to another sovereign jurisdiction ("the requested state"). If the fugitive is found within the territory of the requested state, then the requested state may arrest the fugitive and subject them to its extradition process. The extradition procedures to which the fugitive will be subjected are dependent on the law and practice of the requested state. Between countries, extradition is normally regulated by
treaties A treaty is a formal, legally binding written agreement between sovereign states and/or international organizations that is governed by international law. A treaty may also be known as an international agreement, protocol, covenant, convention ...
. Where extradition is compelled by laws, such as among sub-national jurisdictions, the concept may be known more generally as rendition. It is an ancient mechanism, dating back to at least the 13th century BCE, when an Egyptian
pharaoh Pharaoh (, ; Egyptian language, Egyptian: ''wikt:pr ꜥꜣ, pr ꜥꜣ''; Meroitic language, Meroitic: 𐦲𐦤𐦧, ; Biblical Hebrew: ''Parʿō'') was the title of the monarch of ancient Egypt from the First Dynasty of Egypt, First Dynasty ( ...
,
Ramesses II Ramesses II (sometimes written Ramses or Rameses) (; , , ; ), commonly known as Ramesses the Great, was an Egyptian pharaoh. He was the third ruler of the Nineteenth Dynasty. Along with Thutmose III of the Eighteenth Dynasty, he is often reg ...
, negotiated an extradition treaty with a
Hittite king The dating and sequence of Hittite kings is compiled by scholars from fragmentary records, supplemented by the finds in Ḫattuša and other administrative centers of cuneiform tablets and more than 3,500 seal impressions providing the names, tit ...
, Hattusili III.


Extradition treaties or agreements

The consensus in
international law International law, also known as public international law and the law of nations, is the set of Rule of law, rules, norms, Customary law, legal customs and standards that State (polity), states and other actors feel an obligation to, and generall ...
is that a
state State most commonly refers to: * State (polity), a centralized political organization that regulates law and society within a territory **Sovereign state, a sovereign polity in international law, commonly referred to as a country **Nation state, a ...
does not have any obligation to surrender an alleged criminal to a foreign state, because one principle of
sovereignty Sovereignty can generally be defined as supreme authority. Sovereignty entails hierarchy within a state as well as external autonomy for states. In any state, sovereignty is assigned to the person, body or institution that has the ultimate au ...
is that every state has legal authority over the people within its borders. Such absence of international obligation, and the desire for the right to demand such criminals from other countries, have caused a web of extradition
treaties A treaty is a formal, legally binding written agreement between sovereign states and/or international organizations that is governed by international law. A treaty may also be known as an international agreement, protocol, covenant, convention ...
or agreements to evolve. When no applicable extradition agreement is in place, a state may still request the expulsion or lawful return of an individual pursuant to the requested state's domestic law. This can be accomplished through the immigration laws of the requested state or other facets of the requested state's domestic law. Similarly, the codes of penal procedure in many countries contain provisions allowing for extradition to take place in the absence of an extradition agreement. States may, therefore, still request the expulsion or lawful return of a fugitive from the territory of a requested state in the absence of an extradition treaty. No country in the world has an extradition treaty with all other countries; for example, the United States lacks extradition treaties with China, Russia, Namibia, the United Arab Emirates, North Korea, Bahrain, and many other countries. 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 is to be extradited. Dual criminality treaties generally allow for the extradition of a criminal suspect if the punishment is more than one year imprisonment in accordance with the laws of both countries. Occasionally the length of the sentence agreed upon between the two countries is varied. Under both types of treaties, if the conduct is not considered a crime in both of the countries involved then it will not be an extraditable offense. Generally, an extradition treaty requires that a country seeking extradition be able to show that: *The relevant crime is sufficiently serious. *There exists a ''prima facie'' case against the individual sought. *The event in question qualifies as a crime in both countries. *The extradited person can reasonably expect a fair trial in the recipient country. *The likely penalty will be proportionate to the crime.


Restrictions

Most countries require themselves to deny extradition requests if, in the government's opinion, the suspect is being sought for a
political crime In criminology, a political crime or political offence is an offence that prejudices the interests of the state or its government. States may criminalise any behaviour perceived as a threat, real or imagined, to the state's survival, including ...
. Many countries, such as Mexico, Canada and most European nations, will not allow extradition if the death penalty may be imposed on the suspect unless they are assured that the death sentence will not be passed or carried out. In the case of '' Soering v. United Kingdom'', the
European Court of Human Rights The European Court of Human Rights (ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights (ECHR). The court hears applications alleging that a co ...
held that it would violate Article 3 of the
European Convention on Human Rights The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is a Supranational law, supranational convention to protect human rights and political freedoms in Europe. Draf ...
to extradite a person to the United States from the United Kingdom in a capital case. This was due to the harsh conditions on death row and the uncertain timescale within which the sentence would be executed. Parties to the European Convention also cannot extradite people where they would be at significant risk of being tortured inhumanely or degradingly treated or punished. These restrictions are normally clearly spelled out in the extradition treaties that a government has agreed upon. They are, however, controversial in the United States, where the death penalty is practiced in some U.S. states, as it is seen by many as an attempt by foreign nations to interfere with the U.S. criminal justice system. In contrast, pressures by the U.S. government on these countries to change their laws, or even sometimes to ignore 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. Famous examples include the extradition dispute with Canada on
Charles Ng Charles Chi-tat Ng (born Ng Chi-tat) ( zh, t=吳志達, j=ng4 zi3 daat6; born 24 December 1960) is a Hong Kong-born convicted serial killer who committed numerous crimes in the United States. He is believed to have raped, tortured, and murder ...
, who was eventually extradited to the United States on murder charges. Countries with a
rule of law The essence of the rule of law is that all people and institutions within a Body politic, political body are subject to the same laws. This concept is sometimes stated simply as "no one is above the law" or "all are equal before the law". Acco ...
typically make extradition subject to review by that country's courts. These courts may impose certain restrictions on extradition, or prevent it altogether, if for instance they deem the accusations to be based on dubious evidence, or evidence obtained from
torture Torture is the deliberate infliction of severe pain or suffering on a person for reasons including corporal punishment, punishment, forced confession, extracting a confession, interrogational torture, interrogation for information, or intimid ...
, or if they believe that the defendant will not be granted a
fair trial A fair (archaic: faire or fayre) is a gathering of people for a variety of entertainment or commercial activities. Fairs are typically temporary with scheduled times lasting from an afternoon to several weeks. Fairs showcase a wide range of go ...
on arrival, or will be subject to cruel, inhumane or degrading treatment if extradited. Several countries, such as
France France, officially the French Republic, is a country located primarily in Western Europe. Overseas France, Its overseas regions and territories include French Guiana in South America, Saint Pierre and Miquelon in the Atlantic Ocean#North Atlan ...
, the
Russian Federation Russia, or the Russian Federation, is a country spanning Eastern Europe and North Asia. It is the list of countries and dependencies by area, largest country in the world, and extends across Time in Russia, eleven time zones, sharing Borders ...
,
Austria Austria, formally the Republic of Austria, is a landlocked country in Central Europe, lying in the Eastern Alps. It is a federation of nine Federal states of Austria, states, of which the capital Vienna is the List of largest cities in Aust ...
,
China China, officially the People's Republic of China (PRC), is a country in East Asia. With population of China, a population exceeding 1.4 billion, it is the list of countries by population (United Nations), second-most populous country after ...
and
Japan Japan is an island country in East Asia. Located in the Pacific Ocean off the northeast coast of the Asia, Asian mainland, it is bordered on the west by the Sea of Japan and extends from the Sea of Okhotsk in the north to the East China Sea ...
, have laws against extraditing their respective citizens. Others, such as
Germany Germany, officially the Federal Republic of Germany, is a country in Central Europe. It lies between the Baltic Sea and the North Sea to the north and the Alps to the south. Its sixteen States of Germany, constituent states have a total popu ...
and
Israel Israel, officially the State of Israel, is a country in West Asia. It Borders of Israel, shares borders with Lebanon to the north, Syria to the north-east, Jordan to the east, Egypt to the south-west, and the Mediterranean Sea to the west. Isr ...
, do not allow for extradition of their own citizens in their constitutions. Some others stipulate such prohibition on extradition agreements rather than their laws. Such restrictions are occasionally controversial in other countries when, for example, a French citizen commits a crime abroad and then returns to their home country, often being perceived as doing so to avoid prosecution. These countries, however, make their criminal laws applicable to citizens abroad, and they try citizens suspected of crimes committed abroad under their own laws. Such suspects are typically prosecuted as if the crime had occurred within the country's borders.


Exemptions in the European Union

The usual extradition agreement safeguards relating to dual-criminality, the presence of ''prima facie'' evidence and the possibility of a
fair trial A fair (archaic: faire or fayre) is a gathering of people for a variety of entertainment or commercial activities. Fairs are typically temporary with scheduled times lasting from an afternoon to several weeks. Fairs showcase a wide range of go ...
have been waived by many European nations for a list of specified offences under the terms of the
European Arrest Warrant The European Arrest Warrant (EAW) is an arrest warrant valid throughout all member states of the European Union (EU). Once issued, it requires another member state to arrest and transfer a criminal suspect or sentenced person to the issuing stat ...
. The warrant entered into force in eight European Union (EU) member-states on 1 January 2004, and is in force in all member-states since 22 April 2005. 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 The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is a Supranational law, supranational convention to protect human rights and political freedoms in Europe. Draf ...
.


Extradition to federations

The federal structure of some countries, such as the
United States The United States of America (USA), also known as the United States (U.S.) or America, is a country primarily located in North America. It is a federal republic of 50 U.S. state, states and a federal capital district, Washington, D.C. The 48 ...
, can pose particular problems for extraditions when the police power and the power of foreign relations are held at different levels of the federal hierarchy. For instance, in the United States, most criminal prosecutions occur at the state level, and most foreign relations occurs on the federal level. In fact, under the
United States Constitution The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, on March 4, 1789. Originally includi ...
, foreign countries may not have official treaty relations with the individual states; rather, they may have treaty relations only with the federal government. As a result, a US state that wishes to prosecute an individual located in foreign territory must direct its extradition request through the federal government, which will negotiate the extradition with the requested state. However, due to the constraints of
federalism Federalism is a mode of government that combines a general level of government (a central or federal government) with a regional level of sub-unit governments (e.g., provinces, State (sub-national), states, Canton (administrative division), ca ...
, any conditions on the extradition accepted by the federal government – such as not to impose the death penalty – are not binding on the states. In the case of '' Soering v. United Kingdom'', the
European Court of Human Rights The European Court of Human Rights (ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights (ECHR). The court hears applications alleging that a co ...
ruled that the
United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Northwestern Europe, off the coast of European mainland, the continental mainland. It comprises England, Scotlan ...
was not permitted under its treaty obligations to extradite an individual to the United States, because the United States' federal government was constitutionally unable to offer binding assurances that the death penalty would not be sought in
Virginia Virginia, officially the Commonwealth of Virginia, is a U.S. state, state in the Southeastern United States, Southeastern and Mid-Atlantic (United States), Mid-Atlantic regions of the United States between the East Coast of the United States ...
state courts. Ultimately, the Commonwealth of Virginia itself had to offer assurances to the federal government, which passed those assurances on to the United Kingdom, which then extradited the individual to the United States. Less important problems can arise due to differing qualifications for crimes. For instance, in the United States, crossing state lines is a prerequisite for certain federal crimes (otherwise crimes such as murder, etc. are handled 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, however. Extradition treaties or subsequent diplomatic correspondence often include language providing that such criteria should not be taken into account when checking if the crime is one in the country from which extradition should apply.


Bars to extradition

By enacting laws or in concluding treaties or agreements, countries determine the conditions under which they may entertain or deny extradition requests. Observing fundamental human rights is also an important reason for denying some extradition requests. It is common for human rights exceptions to be specifically incorporated in bilateral treaties. (2014) 76 Australian Institute of Administrative Law Forum 20. Such bars can be invoked in relation to the treatment of the individual in the receiving country, including their trial and sentence. These bars may also extend to take account of the effect on family of the individual if extradition proceeds. Therefore, human rights recognised by international and regional agreements may be the basis for denying extradition requests. However, cases where extradition is denied should be treated as independent exceptions and will only occur in exceptional circumstances.Mariana (Mitra) Radu, Cătălina Mititelu (2013) "The Observance of Human Rights and Freedoms in the Extradition Proceedings at National and International Levels" JDSR 3, 100 at 101 Common bars to extradition include:


Failure to fulfill dual criminality

Generally the act for which extradition is sought must constitute a crime punishable by some minimum penalty in both the requesting and the requested states. This requirement has been abolished for broad categories of crimes in some jurisdictions, notably within the
European Union The European Union (EU) is a supranational union, supranational political union, political and economic union of Member state of the European Union, member states that are Geography of the European Union, located primarily in Europe. The u ...
.


Political nature of the alleged crime

Many countries refuse to extradite suspects of
political crimes In criminology, a political crime or political offence is an offence that prejudices the interests of the state or its government. States may criminalise any behaviour perceived as a threat, real or imagined, to the state's survival, including ...
. Such exceptions aim to prevent the misuse of extradition for political purposes, protecting individuals from being prosecuted or punished for their political beliefs or activities in another country. Countries may refuse extradition to avoid becoming involved in politically motivated cases, or gaining a bargaining chip over a rival state.


Possibility of certain forms of punishment

Some countries refuse extradition on grounds that the person, if extradited, may receive capital punishment or face
torture Torture is the deliberate infliction of severe pain or suffering on a person for reasons including corporal punishment, punishment, forced confession, extracting a confession, interrogational torture, interrogation for information, or intimid ...
. A few go as far as to cover all punishments that they themselves would not administer. * Death penalty: Several jurisdictions, such as Australia, Canada, Macao, New Zealand, South Africa, United Kingdom and most European nations except Belarus, will not consent to the extradition of a suspect if the death penalty is a possible sentencing option unless they are assured that the death sentence will not be passed or carried out. The
United Nations Human Rights Committee The United Nations Human Rights Committee is a treaty body composed of 18 experts, established by a 1966 human rights treaty, the International Covenant on Civil and Political Rights (ICCPR). The Committee meets for three four-week sessions per yea ...
considered the case of Joseph Kindler, following the Canadian Supreme Court's decision in '' Kindler v Canada'' to extradite Kindler who faced the death penalty in the United States. This decision was given despite the fact that it was expressly provided in the extradition treaty between these two states that extradition may be refused, unless assurances were given that the death penalty shall not be imposed or executed, as well as arguably being a violation of the individual's rights under the Canadian Charter of Human Rights. The decision by the Committee considered Article 6 of the
International Covenant on Civil and Political Rights The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty that commits nations to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom ...
, the "inherent right to life" and whether this right prohibited Canada from extraditing the individual to the United States where he faced the death penalty. The Committee decided that there was nothing contained in the terms of Article 6 which required Canada to seek assurance that the individual would not face the death penalty if extradited. However, the Committee noted that if Canada had extradited without due process it would have breached its obligation under the Convention in this case. * Torture,
inhuman or degrading treatment Cruel, inhuman or degrading treatment (CIDT) is treatment of persons which is contrary to human rights or dignity, but is not classified as torture. It is forbidden by the Universal Declaration of Human Rights, Article 3 of the European Convention ...
or punishment: Many countries will not extradite if there is a risk that a requested person will be subjected to torture, inhuman or degrading treatment or punishment. In regard to torture the
European Court of Human Rights The European Court of Human Rights (ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights (ECHR). The court hears applications alleging that a co ...
has in the past not accepted assurances that torture will not occur when given by a state where torture is systematic or endemic.Edward Fitzgerald (2013). Recent Human Rights Developments in Extradition Law & Related Immigration Law, The Denning Law Journal 25 89 at 90. Although in the more recent case before the same court '' Othman (Abu Qatada) v. United Kingdom'' the court retreated from this firm refusal and instead took a more subjective approach for assessing state assurances. Unlike capital punishment it is often more difficult to prove the existence of torture within a state and considerations often depend on the assessment of quality and validity of assurances given by the requesting state. In the deportation case of '' Othman (Abu Qatada)'' the court provided 11 factors the court will assess in determining the validity of these assurances. While torture is provided for as a bar to extradition by the European Convention on Human Rights and more universally by the Convention Against Torture, it is also a ''
jus cogens Jus or JUS may refer to: Language * Jussive mood, in grammar * Yus, two early Cyrillic letters * Jumla Sign Language, of Nepal (ISO 639-3:jus) Law * Jus (law), a right afforded to ancient Romans * Jus (canon law), a Roman Catholic custo ...
'' norm under international law and can therefore be invoked as a bar even if it is not provided for in an extradition agreement. In the case of '' Soering v United Kingdom'', the
European Court of Human Rights The European Court of Human Rights (ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights (ECHR). The court hears applications alleging that a co ...
held that it would violate Article 3 of the
European Convention on Human Rights The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is a Supranational law, supranational convention to protect human rights and political freedoms in Europe. Draf ...
to extradite a person to the United States from the United Kingdom in a capital punishment case. This was due to the harsh conditions on death row and the uncertain timescale within which the sentence would be executed, but not the death penalty sentence itself. The Court in Soering stressed however that the personal circumstances of the individual, including age and mental state (the individual in this case was 18 years old) were relevant in assessing whether their extradition would give rise to a real risk of treatment exceeding the threshold in Article 3.


Jurisdiction

Jurisdiction over a crime can be invoked to refuse extradition.


Own citizens

Several countries, such as Austria, Brazil, Bulgaria, Czechia (the Czech Republic), France, Germany, Israel, Japan, Morocco, Norway, the People's Republic of China (Mainland China), Portugal, the Republic of China (Taiwan), Russia, Saudi Arabia, Slovenia, Switzerland, Syria, Turkey, the UAE, and Vietnam have laws against extraditing their own citizens to other countries' jurisdictions. Instead, they often have special laws in place that give them jurisdiction over crimes committed abroad by or against citizens. By virtue of such jurisdiction, they can locally prosecute and try citizens accused of crimes committed abroad as if the crime had occurred within the country's borders (see, e.g., trial of Xiao Zhen).
Israeli law Israeli law is based mostly on a common law legal system, though it also reflects the diverse history of the territory of the State of Israel throughout the last hundred years (which was at various times prior to independence under Ottoman, t ...
permits the extradition of Israeli citizens who have not established residency in Israel; resident citizens may be extradited to stand trial in a foreign country, provided that the prosecuting country agrees that any prison sentence imposed will be served in Israel.


Right to private and family life

In a limited number of cases
Article 8 of the European Convention on Human Rights Article 8 of the European Convention on Human Rights provides a right to respect for one's " private and family life, his home and his correspondence", subject to certain restrictions that are "in accordance with law" and "necessary in a democrat ...
has been invoked to stop extradition from proceeding. Article 8 states that everyone has the right to the respect of their private and family life. This is achieved by way of balancing the potential harm to private life against the public interest in upholding the extradition arrangement. While this article is useful as it provide for a prohibition to extradition, the threshold required to meet this prohibition is high. Article 8 does explicitly provide that this right is subject to limits in the interests of national security and public safety, so these limits must be weighed in a balancing of priority against this right. Cases where extradition is sought usually involve serious crimes so while these limits are often justified there have been cases where extradition could not be justified in light of the individual's family life. Cases to date have mostly involved dependant children where the extradition would be counter to the best interests of this child. In the case of ''FK v. Polish Judicial Authority'' the court held that it would violate article 8 for a mother of five young children to be extradited amidst charges of minor fraud which were committed a number of years ago. This case is an example of how the gravity of the crime for which extradition was sought was not proportionate to protecting the interests of the individual's family. However the court in this case noted that even in circumstances where extradition is refused a custodial sentence will be given to comply with the principles of international comity. In contrast the case of ''HH v Deputy Prosecutor of the Italian Republic, Genoa'' is an example of when the public interest for allowing extradition outweighed the best interests of the children. In this case both parents were being extradited to Italy for serious drug importation crimes. Article 8 does not only address the needs of children, but also all family members, yet the high threshold required to satisfy Article 8 means that the vulnerability of children is the most likely circumstance to meet this threshold. In the case of ''Norris v US (No 2)'' a man sought to argue that if extradited his health would be undermined and it would cause his wife depression. This claim was rejected by the Court which stated that a successful claim under Article 8 would require "exceptional" circumstances. Suicide Risk: Cases where there is risk of the individual committing suicide have also invoked article 8 as the public interest of extraditing must be considered in light of the risk of suicide by the individual if extradited. In the case of ''Jason's v Latvia'' extradition was refused on these grounds, as the crime for which the individual was sought was not enough of a threat to public interest to outweigh the high risk of suicide which had been assessed to exist for the individual if extradited.


Fair trial standards

Consideration of the
right to a fair trial A fair trial is a trial which is "conducted fairly, justly, and with procedural regularity by an impartial judge". Various rights associated with a fair trial are explicitly proclaimed in Article 10 of the Universal Declaration of Human Rights, th ...
is particularly complex in extradition cases. Its complexity arises from the fact that while the court deciding whether to surrender the individual must uphold these rights this same court must also be satisfied that any trial undertaken by the requesting state after extradition is granted also respects these rights. Article 14 of the
ICCPR The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty that commits nations to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom ...
provides a number of criteria for fair trial standards. These standards have been reflected in courts who have shown that subjective considerations should be made in determining whether such trials would be ‘unjust’ or ‘oppressive’ by taking into account factors such as the duration of time since the alleged offences occurred, health of the individual, prison conditions in the requesting state and likelihood of conviction among other considerations. Yet exactly how the standards provided for in ICCPR are incorporated or recognised by domestic courts and decision makers is still unclear although it seems that these standards can at a minimum be used to inform the notions of such decision makers. If it is found that fair trial standards will not be satisfied in the requesting country this may be a sufficient bar to extradition. Article 6 of the ECHR also provides for fair trial standards, which must be observed by European countries when making an extradition request. This court in the ''Othman'' case, whom if extradited would face trial where evidence against him had been obtained by way of torture. This was held to be a violation of Article 6 ECHR as it presented a real risk of a ‘flagrant denial of justice’. The court in Othman stressed that for a breach of Article 6 to occur the trial in the requesting country must constitute a flagrant denial of justice, going beyond merely an unfair trial. Evidence obtained by way of torture has been sufficient to satisfy the threshold of a flagrant denial of justice in a number of case. This is in part because torture evidence threatens the "integrity of the trial process and the rule of law itself."


Human rights and extradition

Human rights as a bar to extradition can be invoked in relation to the treatment of the individual in the receiving country, including their trial and sentence as well as the effect on family of the individual if extradition is granted. The repressive nature and the limitations of freedoms imposed on an individual is part of the extradition process and is the reason for these exceptions and the importance that human rights are observed in the extradition process. Therefore, human rights protected by international and regional agreements may be the basis for denying extradition requests, but only as independent exceptions. While human rights concerns can add to the complexity of extradition cases it is positive as it adds to the legitimacy and institutionalisation of the extradition system. Determining whether to allow extradition by the requested state is, among other considerations, a balancing exercise between the interests of the requesting state's pursuit of justice over the accused individuals, the requested state's interests in holding dominion over those presently in its territory, and the rights of the extraditable persons. Extradition raises human rights concerns in determining this balance in relation to the extraditable person. States make provision to recognise these rights both expressing in bilateral treaty agreements and also, potentially by way of state's obligations under the
Universal Declaration of Human Rights The Universal Declaration of Human Rights (UDHR) is an international document adopted by the United Nations General Assembly that enshrines the Human rights, rights and freedoms of all human beings. Drafted by a UN Drafting of the Universal D ...
, of which the
International Covenant on Civil and Political Rights The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty that commits nations to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom ...
is particularly relevant to extradition. Although regional, the
European Convention of Human Rights The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is a supranational convention to protect human rights and political freedoms in Europe. Drafted in 1950 by the ...
has also been invoked as a bar to extradition in a number of cases falling within its jurisdiction and decisions from the
European Court of Human Rights The European Court of Human Rights (ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights (ECHR). The court hears applications alleging that a co ...
have been a useful source of development in this area.


''Aut dedere aut judicare''

A concept related to extradition that has significant implications in transnational criminal law is that of ''
aut dedere aut judicare In law, the principle of ''aut dedere aut judicare'' (Latin for "either Extradition, extradite or Prosecution, prosecute") refers to the obligation, legal obligation of Sovereign state, states under public international law to prosecute persons who ...
''. This maxim represents the principle that states must either surrender a criminal within their jurisdiction to a state that wishes to prosecute the criminal or prosecute the offender in its own courts. Many international agreements contain provisions for ''aut dedere aut judicare''. These include all four 1949 Geneva Conventions, the U.N. Convention for the Suppression of Terrorist Bombings, the U.N. Convention Against Corruption, the Convention for the Suppression of Unlawful Seizure of Aircraft, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the
Convention for the Protection of Cultural Property in the Event of an Armed Conflict Convention may refer to: * Convention (norm), a custom or tradition, a standard of presentation or conduct ** Treaty, an agreement in international law ** Convention (political norm), uncodified legal or political tradition * Convention (meeting) ...
, and the International Convention for the Suppression and Punishment of the Crime of Apartheid. Some contemporary scholars hold the opinion that ''aut dedere aut judicare'' is not an obligation under customary international law but rather "a specific conventional clause relating to specific crimes" and, accordingly, an obligation that only exists when a state has voluntarily assumed the obligation. Cherif Bassiouni, however, has posited that, at least with regard to international crimes, it is not only a rule of customary international law but a ''
jus cogens Jus or JUS may refer to: Language * Jussive mood, in grammar * Yus, two early Cyrillic letters * Jumla Sign Language, of Nepal (ISO 639-3:jus) Law * Jus (law), a right afforded to ancient Romans * Jus (canon law), a Roman Catholic custo ...
'' principle. Professor Michael Kelly, citing Israeli and Austrian judicial decisions, has noted that "there is some supporting anecdotal evidence that judges within national systems are beginning to apply the doctrine on their own".


Controversies


International tensions

The refusal of a country to extradite suspects or criminals to another may lead to international relations being strained. Often, the country to which extradition is refused will accuse the other country of refusing extradition for political reasons (regardless of whether or not this is justified). A case in point is that of
Ira Einhorn Ira Samuel Einhorn (May 15, 1940 – April 3, 2020), known as "The Unicorn Killer", was an American environmental activist and murderer. His moniker, "the Unicorn", was derived from his surname; Einhorn means "unicorn" in German. As an envi ...
, in which some US commentators pressured President
Jacques Chirac Jacques René Chirac (, ; ; 29 November 193226 September 2019) was a French politician who served as President of France from 1995 to 2007. He was previously Prime Minister of France from 1974 to 1976 and 1986 to 1988, as well as Mayor of Pari ...
of France, who does not intervene in legal cases, to permit extradition when the case was held up due to differences between French and American human rights law. Another long-standing example is
Roman Polanski Raymond Roman Thierry Polański (; born 18 August 1933) is a Polish and French filmmaker and actor. He is the recipient of List of awards and nominations received by Roman Polanski, numerous accolades, including an Academy Award, three Britis ...
whose extradition was pursued by California for over 20 years. For a brief period he was placed under arrest in Switzerland, however subsequent legal appeals there prevented extradition. The questions involved are often complex when the country from which suspects are to be extradited is a democratic country with a
rule of law The essence of the rule of law is that all people and institutions within a Body politic, political body are subject to the same laws. This concept is sometimes stated simply as "no one is above the law" or "all are equal before the law". Acco ...
. Typically, in such countries, the final decision to extradite lies with the national executive (prime minister,
president President most commonly refers to: *President (corporate title) * President (education), a leader of a college or university *President (government title) President may also refer to: Arts and entertainment Film and television *'' Præsident ...
or equivalent). However, such countries typically allow extradition defendants recourse to the law, with multiple appeals. These may significantly slow down procedures. On the one hand, this may lead to unwarranted international difficulties, as the public, politicians and journalists from the requesting 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. On 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 requesting state, may possibly result from the unwillingness of the country's executive to extradite. Even though the United States has an extradition treaty with Japan, most extraditions are not successful due to Japan's domestic laws. For the United States to be successful, they must present their case for extradition to the Japanese authorities. However, certain evidence is barred from being in these proceedings such as the use of confessions, searches or electronic surveillance. In most cases involving international drug trafficking, this kind of evidence constitutes the bulk of evidence gathered in the investigation on a suspect for a drug-related charge. Therefore, this usually hinders the United States from moving forward with the extradition of a suspect. There is at present controversy in the United Kingdom about the Extradition Act 2003, which dispenses with the need for a ''prima facie'' case for extradition. This came to a head over the extradition of the Natwest Three from the UK to the U.S., for their alleged fraudulent conduct related to
Enron Enron Corporation was an American Energy development, energy, Commodity, commodities, and services company based in Houston, Texas. It was led by Kenneth Lay and developed in 1985 via a merger between Houston Natural Gas and InterNorth, both re ...
. Several British political leaders were heavily critical of the British government's handling of the issue. In 2013, the United States submitted extradition requests to many nations for former National Security Agency employee
Edward Snowden Edward Joseph Snowden (born June 21, 1983) is a former National Security Agency (NSA) intelligence contractor and whistleblower who leaked classified documents revealing the existence of global surveillance programs. Born in 1983 in Elizabeth ...
. It criticized Hong Kong for allowing him to leave despite an extradition request.


Extradition case of Huawei CFO Meng Wanzhou

It is a part of the
China–United States trade war An economic conflict between China and the United States has been ongoing since January 2018, when U.S. president Donald Trump began Tariffs in the first Trump administration, imposing tariffs and other trade barriers on China with the aim of fo ...
, which is political in nature.


2019 Hong Kong extradition law protests

A proposed Hong Kong extradition law tabled in April 2019 led to one of the biggest protests in the city's history, with 1 million demonstrators joining the protests on 9 June 2019. They took place three days before the Hong Kong government planned to bypass the committee process and bring the contentious bill straight to the full legislature to hasten its approval. The bill, which would ease extradition to
Mainland China "Mainland China", also referred to as "the Chinese mainland", is a Geopolitics, geopolitical term defined as the territory under direct administration of the People's Republic of China (PRC) in the aftermath of the Chinese Civil War. In addit ...
, includes 37 types of crimes. While the Beijing-friendly ruling party maintains that the proposal contains protections of the dual criminality requirement and human rights, its opponents allege that after people are surrendered to the mainland, it could charge them with some other crime and impose the death penalty (which has been abolished in Hong Kong) for that other crime. There are also concerns about the retroactive effect of the new law. The government's proposal was amended to remove some categories after complaints from the business sector, such as "the unlawful use of computers". Experts have noted that the legal systems of mainland China and Hong Kong follow 'different protocols' with regard to the important conditions of ''double criminality'' and
non-refoulement Non-refoulement () is a fundamental principle of international law anchored in the Convention Relating to the Status of Refugees that forbids a country from deporting (" refoulement") any person to any country in which their "life or freedom woul ...
, as well as on the matter of executive vs. judicial oversight on any extradition request.


Abductions

In some cases a state has abducted an alleged criminal from the territory of another state either after normal extradition procedures failed, or without attempting to use them. Notable cases are listed below:


"Extraordinary rendition"

"Extraordinary rendition" is an
extrajudicial Extrajudicial punishment is a punishment for an alleged crime or offense which is carried out without legal process or supervision by a court or tribunal through a legal proceeding. Politically motivated Extrajudicial punishment is often a fe ...
procedure in which criminal suspects, generally suspected
terrorist Terrorism, in its broadest sense, is the use of violence against non-combatants to achieve political or ideological aims. The term is used in this regard primarily to refer to intentional violence during peacetime or in the context of war aga ...
s or supporters of terrorist organisations, are transferred from one country to another.Michael John Garcia, Legislative Attorney American Law Division
Renditions: Constraints Imposed by Laws on Torture
8 September 2009; link from the United State

The procedure differs from extradition as the purpose of the rendition is to extract information from suspects, while extradition is used to return fugitives so that they can stand trial or fulfill their sentence. The United States'
Central Intelligence Agency The Central Intelligence Agency (CIA; ) is a civilian foreign intelligence service of the federal government of the United States tasked with advancing national security through collecting and analyzing intelligence from around the world and ...
(CIA) allegedly operates a global extraordinary rendition programme, which from 2001 to 2005 captured an estimated 150 people and transported them around the world.Background Paper on CIA's Combined Use of Interrogation Techniques
. 30 December 2004. Retrieved 2 January 2010.

. ''Huffington Post''. 28 August 2009. Retrieved 2 January 2010.

American Civil Liberties Union The American Civil Liberties Union (ACLU) is an American nonprofit civil rights organization founded in 1920. ACLU affiliates are active in all 50 states, Washington, D.C., and Puerto Rico. The budget of the ACLU in 2024 was $383 million. T ...
. Retrieved 29 March 2007
The alleged US programme prompted several official investigations in Europe into alleged secret detentions and illegal international transfers involving
Council of Europe The Council of Europe (CoE; , CdE) is an international organisation with the goal of upholding human rights, democracy and the Law in Europe, rule of law in Europe. Founded in 1949, it is Europe's oldest intergovernmental organisation, represe ...
member states. A June 2006 report from the Council of Europe estimated 100 people had been kidnapped by the CIA on EU territory (with the cooperation of Council of Europe members), and rendered to other countries, often after having transited through secret detention centres (" black sites") used by the CIA, some of which could be located in Europe. According to the separate European Parliament report of February 2007, the CIA has conducted 1,245 flights, many of them to destinations where suspects could face torture, in violation of article 3 of the United Nations Convention Against Torture.Resolution 1507 (2006).
Alleged secret detentions and unlawful inter-state transfers of detainees involving Council of Europe member states]
A large majority of the
European Union Parliament The European Parliament (EP) is one of the two legislative bodies of the European Union and one of its seven institutions. Together with the Council of the European Union (known as the Council and informally as the Council of Ministers), it a ...
endorsed the report's conclusion that many member states tolerated illegal actions by the CIA, and criticised such actions. Within days of his inauguration, President Obama signed an Executive Order opposing rendition torture and established a task force to provide recommendations about processes to prevent rendition torture.


Uyghur extradition

In June 2021,
CNN Cable News Network (CNN) is a multinational news organization operating, most notably, a website and a TV channel headquartered in Atlanta. Founded in 1980 by American media proprietor Ted Turner and Reese Schonfeld as a 24-hour cable ne ...
reported testimonies of several
Uyghurs The Uyghurs,. alternatively spelled Uighurs, Uygurs or Uigurs, are a Turkic peoples, Turkic ethnic group originating from and culturally affiliated with the general region of Central Asia and East Asia. The Uyghurs are recognized as the ti ...
accounting for the detention and extradition of people they knew or were related to, from the United Arab Emirates. Documents issued by the Dubai public prosecutor and viewed by CNN, showed the confirmation of
China China, officially the People's Republic of China (PRC), is a country in East Asia. With population of China, a population exceeding 1.4 billion, it is the list of countries by population (United Nations), second-most populous country after ...
’s request for the extradition of a detained Uyghur man, Ahmad Talip, despite insufficient proof of reasons for extradition. In 2019, UAE, along with several other Muslim nations publicly endorsed China's Xinjiang policies, despite Beijing being accused of
genocide Genocide is violence that targets individuals because of their membership of a group and aims at the destruction of a people. Raphael Lemkin, who first coined the term, defined genocide as "the destruction of a nation or of an ethnic group" by ...
by the
US State Department The United States Department of State (DOS), or simply the State Department, is an executive department of the U.S. federal government responsible for the country's foreign policy and relations. Equivalent to the ministry of foreign affairs o ...
. Neither Dubai authorities nor the foreign ministry of UAE respond to the several requests for comment made by CNN on the detention and extradition of Uyghurs.


See also

*
Deportation Deportation is the expulsion of a person or group of people by a state from its sovereign territory. The actual definition changes depending on the place and context, and it also changes over time. A person who has been deported or is under sen ...
*
Extraterritorial jurisdiction Extraterritorial jurisdiction (ETJ) is the legal ability of a government to exercise authority beyond its normal boundaries. Any authority can claim ETJ over any external territory they wish. However, for the claim to be effective in the external ...
*
Extraterritoriality In international law, extraterritoriality or exterritoriality is the state of being exempted from the jurisdiction of local law, usually as the result of diplomatic negotiations. Historically, this primarily applied to individuals, as jurisdict ...
*
Immunity from prosecution Legal immunity, or immunity from prosecution, is a legal status wherein an individual or entity cannot be held liable for a violation of the law, in order to facilitate societal aims that outweigh the value of imposing liability in such cases. S ...
*
Right of asylum The right of asylum, sometimes called right of political asylum (''asylum'' ), is a juridical concept, under which people persecuted by their own rulers might be protected by another sovereign authority, such as a second country or another enti ...
*
Universal jurisdiction Universal jurisdiction is a legal principle that allows Sovereign state, states or International organization, international organizations to prosecute individuals for serious crimes, such as genocide, War crime, war crimes, and crimes against hu ...
* '' Sosa v. Alvarez-Machain'' International *
European Arrest Warrant The European Arrest Warrant (EAW) is an arrest warrant valid throughout all member states of the European Union (EU). Once issued, it requires another member state to arrest and transfer a criminal suspect or sentenced person to the issuing stat ...
* European Convention on Extradition * Extradition law in Australia * Extradition law in China * * Extradition law in Israel * Extradition law in Ireland * Extradition law in the United States (including inter-state extradition) * Extradition law in Nigeria * Extradition law in the Philippines Lists * List of Australian extradition treaties * List of Hong Kong extradition treaties * List of Indian extradition treaties *
List of Dutch extradition treaties The Netherlands has, in the light of assistance in criminal matters, concluded treaties for the extradition of suspects and fugitive convicts with several states. The treaties can bi- as well as multilateral. With some countries the Netherlands ha ...
* List of United States extradition treaties Individuals: * Luis Posada Carriles, anti-Castrist detained in the U.S. and wanted by Cuba and Venezuela *
Brian O'Rourke Sir Brian O'Rourke (; c. 1540 – 1591) was first king and then lord of West Bréifne in the west of Ireland from 1566 until his execution in 1591. He reigned during the later stages of the Tudor conquest of Ireland and his rule was marked by ...
(1540?–1591), first man to be extradited within Britain * Ramil Safarov, Azerbaijani officer extradited from Hungary to Azerbaijan Protest: * 2019–20 Hong Kong protests


Footnotes


External links


What Is Extradition?
��A primer from the Council on Foreign Relations. Jonathan Masters, 2019.

��with cases and commentary. Nathaniel Burney, 2007.
Extraditions Cut Short
—Extraditions between Colombia and United States
Chiquita Board Members: Total Identification
—Extradition of Chiquita board members
Expulsions and extraditions
fact sheet of the ECtHR case law

pp. 340–342 in Encyclopedia of American Civil Rights and Liberties: Revised and Expanded, edited by Kara E. Stooksbury, John M. Scheb II, and Otis H. Stephens Jr.. Santa Barbara, CA: ABC-CLIO. {{Authority control Court orders Criminal law International law