Extradition - Lecture notes 1 PDF

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Extradition lecture international law...

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Extradition ;Extradition: - Extradition is a Latin term for ex tradition meaning 'to give up'. The extradition may be defined as under: Definition: - “The delivery of a person; suspected or convicted of a crime, by the state where he has taken refuge or taken asylum, to the state that asserts jurisdiction over him.” L . O p p e n h e i m: “ E x t ra d i t i o n ” i s t he de l i v e r y of an accused or a convicted individual to the state on whose territory he is alleged to have committed, to have been convicted of a crime. According to the Starke, “the term extradition’ denotes the process whereby under treaty or upon a basis of reciprocity one state surrenders to another state at this request a person accused or convicted of a criminal offence committed against the laws of the requesting state, such requesting state being competent to try the alleged offender.” Explanation: -Generally each state has full jurisdiction over all its subjects within its territory. But sometimes a state becomes helpless to punish a guilty person. It is so because such guilty person after committing crimes fled away to another country. So if there is no co-operation between nation states in handing over the criminals to the affected states, the end of justice with its real sprite cannot be attained. Due to this fact the nation-states adopt the doctrine of extradition. In other words, the nation states hand over the criminals to the affected states in the administration of justice. BASES International law neither recognizes the rules regarding extradition, nor it recognizes any general duty on the nation-states in this connection. Rather the doctrine of extradition is based on some general universal principles. And it arises from the provisions of treaties between the nation-states. If there is no treaty between nation states for extradition, the country asserts jurisdiction over the criminal is not bound to extradite him to the affected country. In other words extradition is the product of the treaties between the nation states, but it may not be said that without any treaty there would be no extradition. Rather the nation states in pursuance of mutual co-operation sometimes extradite the criminals to the other country although in the absence of any treaty. Restriction: - As for as Extradition is concerned, it mostly depends upon treaties. But before, the conclusions of a treaty the nation-states usually consider the following restrictions established by Courts in this behalf;

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Extradition 1. Existence of a Formal Treaty: - The existence of a formal treaty is also sometimes becomes much necessary. Because, it is generally a matter of bilateral treaty. So, mere agreement or notification is not sufficient to bind the state to extradite a criminal. The existence of a formal treaty is necessary because the state may refuse to extradite the criminals in the absence of any treaty in this behalf. 2. Honour of Treaty: - In case of a treaty for extradition it is important to fulfill all the conditions and terms of the said treaty. 3. Political Criminal: - There is an important principle in international law that the political criminal shall not be extradited. For example Re Meunier case in which the accused was an anarchist and was charged with causing two explosions in paris café and two barracks. After committing the offence, he fled to England. France demanded his extradition. The accused contended that the nature of his crime was political and therefore he could not be extradited. The practice of non-extradition for political crimes began with French Revolution of 1789. It is also a restriction on the scope of extradition. 4. Military Criminals: - Military criminals shall also not be extradited who have not been charged of war crimes. 5. Religious Criminals: - Religious persons shall also not be extradited. 6. The Rule of Speciality: - The extradition of a criminal for a particular crime entitles the requesting state only to prosecute him for that crime and not otherwise, the rule is said to be rule of speciality. It is also a bar on the soul extradition. The example of this type of restriction include U.S vs Rauscher case in which U.S got extradited Rauscher from Britain on ground that he had fled to Britain after murdering a fellow servant in an American ship. In America Rauscher was tried not for murder but for causing grievously hurt to a man named Janssen. The Supreme Court of U.S held that when a person is brought under the jurisdiction of court under extradition treaty, he may be tried for such offence for which his extradition was sought. 7. Double Criminality: - Another bar on the extradition is the principle of double criminality. According to this principle the crime for which the extradition of a person is requested shall be of a nature be incorporated in the domestic laws of both the states.

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Extradition 8. Prima facie Evidence: - Prima facie evidence is another restriction on the scope of extradition. It means that there should be sufficient evidence for crimes relating to extradition. 9. Fulfillment of Formalities: - It is also equally important to fulfill all other formalities as are necessary for extradition. Conclusion: - So, in the light of the above discussion it may be concluded, that extradition is subjected to many restrictions. And an attempt should be made to overcome such restriction. Because, it is inevitable to punish a person for the crime committed by him in the administration.

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