Extradition is the formal process whereby a State requests from the requested State the return of a person accused or convicted of a crime to stand trial or serve a sentence in the requesting State. Historically, there was no general duty to extradite. Extradition was often based on informal relations between leaders of sovereign States. The increasing numbers of such cases created the need for more formal agreements.
Article 16 of the Organized Crime Conventions deals with extradition. This article is 17 paragraphs in length, making it the second longest article of the Convention, after article 18 on mutual legal assistance. This shows, on one hand, the complexity of international cooperation and, on the other, its importance in the context of fighting transnational organized crime.
In the extradition process, the challenges are similar to those for mutual legal assistance. Different legal systems and frameworks need to be reconciled. Despite the legal differences, there are several principles on extradition that are common to most countries. The Organized Crime Convention draws on these principles to build a comprehensive framework for extradition.
Principles of extradition
Probably the most common principle is the so-called double (or dual) criminality, according to which the alleged offense for which extradition is being sought must be of a criminal offence in both the requesting and requested State.
Recent trends and developments in extradition law have focused on relaxing the strict application of certain grounds for refusal of extradition requests. Attempts have been made to ease, for example, difficulties with double criminality by focusing on the underlying conduct of the offence in question irrespective of the denomination of the offence or its "legal label" in the requesting and requested States.
Under the principle of specialty, which is codified in numerous bilateral extradition treaties and regional extradition schemes, an extradited person shall not be proceeded against, sentenced, detained, re‑extradited to a third State, or subjected to any other restriction of personal liberty in the territory of the requesting State for any offence committed before surrender other than offence for which extradition was granted or any other offence in respect of which the requested State consents. Specialty serves as a safeguard against prosecutions in the requesting State for political offences and violations of other substantive rules of extradition law, such as dual criminality and the principle of ne bis in idem.
According to the principle of non-extradition of nationals, many States decline any obligation to surrender their own citizens. In some countries, there are even constitutional provisions which prohibit the extradition of the respective country's nationals. Nonetheless, despite this general principle, public international law dictates that States have the legal obligation to either extradite or prosecute ( aut dedere aut judicare) persons who commit serious international crimes. This obligation is predicated on the extraterritorial nature of international crimes and reflects an attempt of the international community to ensure that perpetrators are prosecuted either by the national authorities of that State or by another State which indicates that it is willing to prosecute the case by requesting extradition.
Article 16. Extradition
A State Party in whose territory an alleged offender is found, if it does not extradite such person in respect of an offence to which this article applies solely on the ground that he or she is one of its nationals, shall, at the request of the State Party seeking extradition, be obliged to submit the case without undue delay to its competent authorities for the purpose of prosecution. Those authorities shall take their decision and conduct their proceedings in the same manner as in the case of any other offence of a grave nature under the domestic law of that State Party. The States Parties concerned shall cooperate with each other, in particular on procedural and evidentiary aspects, to ensure the efficiency of such prosecution.
Among other principles is the non-discrimination clause, which stipulates that requested States have no obligation to extradite if there are reasons to believe that the person would be persecuted in the requesting State on account of gender, race, religion, nationality, ethnic origin, or political opinion.
It should be added that the political offense exception for extradition has been one of the most controversial features of the extradition process. While in theory this principle provides the requested State with the right to refuse extradition for political crimes, the practical obligation of this principle is far from settled as there is no universally accepted definition of "political crime". Recent developments also suggest that attempts are being made to restrict the scope of the political offence exception or even abolish it. The increase, for example, in international terrorism has led to the willingness of States to limit the extent of the political offence exception, which is generally no longer applicable to crimes against international law.
There is no obligation for the requested State to surrender individuals in cases of the possible risk of torture and other inhuman or degrading treatment in the requesting State or in cases there are grounds to believe that the requesting State cannot provide a fair trial or secure minimum guarantees in criminal proceedings.
It is also very likely that the requested State will not surrender a person who has already been prosecuted (independently from the result of the prosecution) by its authorities in respect to the offense for which extradition is requested ("double jeopardy" or " ne bis in idem").
Most extradition agreements to date have been bilateral in nature, but increasingly multilateral agreements are signed and implemented either at the regional level or at the international level (the Organized Crime Convention is a characteristic example of international instrument in this regard). The advantage of multilateral conventions is that they offer common definitions of offenses and procedures for States that often have different legal traditions and procedures. (Nicholls, Montgomery, Knowles, Doobay and Summers, 2013; Missbach, 2015)
The Organized Crime Convention states that any offence included in the Convention is "deemed to be included as an extraditable offence in any extradition treaty existing between States Parties." In the absence of a treaty, and if a State insists on the existence of a treaty for extradition, an option is provided for that State to use the Convention itself as the vehicle for extradition (art. 16.3 of the Organized Crime Convention).
European Arrest Warrant (EAW)
The European Arrest Warrant (EAW), applied throughout the EU, replaced lengthy extradition procedures within the EU's territorial jurisdiction. It improves and simplifies judicial procedures designed to surrender people for the purpose of conducting a criminal prosecution or executing a custodial sentence or spell in detention. Simplifying and improving the surrendering procedure between EU countries was made possible by a high level of mutual trust and cooperation between countries
Conditions: An EAW may be issued by a national judicial authority if:
Legal basis: The EU document governing the operation of the EAW is the Council Framework Decision of 13 June 2002. This was the first instrument to be adopted on the basis of the principle of mutual recognition of judicial decisions. It came into force on 1 January 2004 and is founded on the principle of direct contacts between the judicial authorities.
Proportionality: There is a need to ensure that the EAW is used proportionately so that the system is not undermined by a glut of EAWs for trivial offences. The judicial authorities in the EU Member States issuing the EAW should apply a "proportionality check" by considering the seriousness of the offence, the length of sentence and the costs and benefits of executing an EAW.
Guaranteeing fair trials and fundamental rights: The operation of the EAW will also benefit the work of the European Union on helping to guarantee fair trials by having minimum EU standards for the rights of people suspected or accused of a crime.
This includes measures setting out common rules in the EU on:
The EAW process introduces the following novelties compared to the former extradition procedures:
UNODC technical assistance tools on extradition
UNODC has prepared a Model Treaty on Extradition and a Model Law on Extradition (2004). These technical assistance tools are intended to be used by States in the negotiation of bilateral and regional agreements to promote more effective cooperation in criminal cases with transnational implications, and in enactment of relevant national laws.
The process of one State seeking the extradition of a person from another State for the purpose of a criminal trial is a complex and serious endeavour. The submission and execution of an extradition request involves the legal systems of more than one State-a complex set of laws and procedures that are meant to protect the sovereignty of the States involved and the rights of the person sought. Therefore, careful attention to procedural rules and requirements is needed to ensure that both States are doing justice under their legal systems and to the accused person.
Depending upon its domestic legislation, a number of factors are considered by a requested State receiving an extradition request. The decision to extradite a person to another State is, in most cases and with the exception of the EAW process, the result of a two-tier system involving the judiciary at the outset of the process and the executive branch at the final point of decision-making (if the judiciary has ruled positively on the granting of the extradition request). Depending on the jurisdiction, the courts consider a number of factors in deciding whether to extradite or not, including dual criminality, identity, sufficiency of the supporting evidence and the existence of an extradition treaty. In some jurisdictions, the decisions of the court or the executive can be appealed or reviewed. The extradition process is subject to strict timelines for filing documents, appeals, bringing the suspect before court, and surrendering the suspect if ordered to do so.
The death penalty is an issue in some extradition requests. States that abolished the death penalty deny extradition to States where the death penalty might be imposed, unless assurances are made that the individual concerned would not be sentenced to death or, if sentenced to death, that the penalty would not be carried out. Most of these cases in recent years have involved terrorist suspects. (United Nations Economic and Social Council, 2010)