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The U. For each of these well-known cases handled by authorities around the world, however, U. The process by which the United States evaluates these incoming and potential outgoing extradition requests may be unfamiliar to some practitioners.
This Advisory is meant to provide a basic primer for those interested in understanding the law and practice of international extradition, with a focus on the U. It first addresses the basic elements common to most bilateral extradition treaties. Next, it describes the process for extradition to and from the United States.
Finally, it discusses some of the defenses most commonly raised in extradition cases, along with suggestions for handling such matters to achieve the best results for individuals facing potential extradition. Extradition treaties are intended to operate like contracts and obligate the parties to arrest and surrender a person to a foreign treaty partner upon request, provided that the treaty's requirements are met and no exceptions apply.
Extradition treaties are individually negotiated and may vary in order to accommodate the legal systems and priorities of the negotiating countries, but they generally share common elements. They establish requirements for both the country sending the extradition request the "requesting state" and the country receiving the request the "requested state". The United States has extradition treaties with more than countries.
In general, the United States will extradite an individual to another country only under the authority of a bilateral extradition treaty with that country, 7 but it will accept fugitives from other countries whether based on a bilateral extradition treaty, the provisions of a multilateral convention, 8 or other means of return.
Extraditable offenses. All treaties include provisions defining which crimes are extraditable. Treaties agreed upon prior to the s typically contain a negotiated list of specific extraditable offenses such as "murder," "manslaughter," or "larceny" and permit extradition only for the crimes that are listed in the treaty.
Modern treaties have largely done away with these lists, however, and use a "dual criminality" approach instead. Exceptions to extradition. Every extradition treaty contains exceptions to the parties' extradition obligations. The most common exceptions include:.
The extradition process in the United States and in most other countries involves both executive officials and judges who preside over extradition proceedings. In the United States, executive-branch responsibility for overseeing the extradition process is shared by the Department of State's Office of the Legal Adviser specifically the Office of Law Enforcement and Intelligence and the Department of Justice's Office of International Affairs OIA , with substantial assistance from federal prosecutors around the United States.
Given the complexity and sensitivity of the issues involved, extradition is a time-consuming process, often taking years. Step 1: The Department of State receives and conducts an initial review of the extradition request. The process begins when the requesting state sends an extradition request to the State Department through diplomatic channels.
Most modern extradition treaties allow the requesting state to seek "provisional arrest" of the subject while it prepares the formal request, which can reduce the possibility that a person will flee while the request is being finalized. OIA conducts its own review of the request to verify that the request is complete and that the documents establish probable cause to believe that subject committed the crime charged.
Step 3: OIA forwards the request to an appropriate U. Attorney's Office, which then seeks an arrest warrant. If the request survives this initial review, OIA forwards the relevant documents to the U. Attorney's Office in the district in which the subject is located with instructions on how to proceed. The individual then appears before a U.
In connection with the probable cause hearing, the extradition judge determines whether: " 1 [t]here is a treaty in force; 2 [t]he person arrested is in fact the person sought by the requesting state; 3 [t]he crime of which the fugitive is accused is an extraditable crime under the treaty; 4 [t]he request sets out probable cause to believe that the fugitive committed the charged crime; and 4 [t]here are no treaty grounds requiring denial of extradition.
Importantly, the probable cause hearing is not a trial on the merits, and the rules of evidence and criminal procedure do not apply as they would at a criminal trial.
Step 5: Certification by the extradition judge and decision by the Secretary of State. If the extradition judge concludes that the request satisfies the probable cause standard and that the other requirements of the treaty are met, the judge will prepare a certification of extraditability and transmit the record of the case to the Secretary of State for a final decision on whether to order the extradition.
The Department "considers any written materials submitted to the Secretary of the State by the fugitive, his or her counsel, family, or interested parties. Certifications of extraditability are not directly appealable. Once the Secretary of State decides whether an individual should be extradited, U. Step 1: Federal, state, or local prosecutor forwards extradition request to OIA.
Requests for extradition are initiated by the prosecutor handling the potential prosecution in the United States and must be reviewed and approved by OIA before they are forwarded to the Department of State. OIA is responsible in the first instance for reviewing possible outgoing extradition requests, ensuring that they are legally sufficient, and deciding whether to ask the State Department to make a formal extradition request through diplomatic channels.
After receiving a request, OIA, consulting with the State Department as needed, confirms the following:. OIA attorneys are the Department of Justice's subject-matter experts on extradition, and federal, state, and local prosecutors are required to route requests through OIA rather than directly contacting their foreign counterparts.
If OIA determines that the request is sufficient, it forwards it to the Department of State for additional review. While the formal request for extradition is being prepared, the Justice Department may request the provisional arrest of the subject. The person can be released if the United States does not submit a formal extradition request within the specified time period.
Step 4: The Department of State forwards the request to the requested state for extradition proceedings. The Department of State then sends the extradition documents to the U. Procedures vary by country, but many countries' processes entail a review similar to that in the United States, including executive approval and review by a judge. Extradition determinations may be subject to appeal and, as in the United States, proceedings may take months or years to complete.
Step 5: Notification and transit or release or other disposition. Once the requested state reaches a decision regarding a U. If the request is denied, OIA may work with prosecutors and the Department of State to evaluate other options for obtaining custody of the individual, such as deportation. The intricate substantive and procedural requirements of the extradition process provide several possible defenses to extradition requests.
Practitioners should remember that each extradition treaty is individually negotiated and that the analysis will turn on the provisions of the particular treaty in question. Some of the most common defenses include:. Extradition is a lengthy and sometimes controversial process. Delays are especially common in high-profile cases involving allegations of political motivation or other improper considerations. Yet even the least controversial cases require in-depth analyses of the relevant treaty, the facts of the case, and the laws of both countries.
International extradition[iii] is an obligation undertaken by States in good faith to promote and execute justice[iv]. The first formal act providing for extradition was adopted in by Belgium, which also passed the first law on the right to asylum.
Extradition Acts not only specify extraditable crimes, but also detail procedures and safeguards whilst defining the relationship between the Act and the treaty. Some states allow extradition requests in cases where they have exchanged declaration of reciprocity with the requesting States. Although there has been a practice of refusing extradition requests in the absence of a binding international obligation between the states, often fugitives are surrendered on the basis of municipal law or as an act of good faith by the State parties.
However, the uncertainty implies that non-party States to extradition treaties may be a safe haven for fugitives. The process of extradition is subject to two factors: existence of a binding extradition agreement and the municipal laws of the country from which the extradition is being requested. The Government of India presently has bilateral Extradition Treaties with forty-two countries and Extradition Arrangements with nine more countries to quicken and ease the process of extradition.
In India, the extradition of a fugitive from India to a foreign country or vice-versa is governed by the provisions of the Indian Extradition Act, [v]. The basis of extradition could be a treaty between India and a foreign country and in absence of a treaty, an arrangement for extradition.
The legal basis for Extradition with States with whom India does not have an Extradition Treaty non-Treaty States is provided by Section 3 4 of the Indian Extradition Act, , which states that the Central Government may, by notified order, treat any convention to which India and a foreign state are parties, as an Extradition Treaty made by India with that foreign state providing for extradition in respect of the offences specified in that Convention.
India is also a party to the International Convention for the Suppression of Terrorist Bombings. This also provides a legal basis for Extradition in Terror Crimes. Where there exists an Extradition Treaty between the concerned countries , the extradition request has to be in terms of the specific requirements therein. It typically involves a treaty between two states. If one country agrees to extradite a person to another, this is done as a matter of comity rather than because of a legal obligation.
Australian law governs extradition through the Extradition Act The act sets a framework for courts to determine if a person is to be extradited from Australia.
It also empowers the government to make extradition requests of other governments. The Australian government can consider extradition requests from countries designated under domestic regulations as extradition countries. The majority of these are countries with which Australia has bilateral extradition treaties. Australia also has extradition obligations through multilateral treaties that focus on specific forms of crime. It may consider extradition requests from other Commonwealth countries through the non-binding London Scheme.
In a case where Australia is the requesting state, it can request extradition from any other country. However, it cannot expect extradition. Under the Extradition Act, extradition matters are formally dealt with by the Commonwealth Attorney-General.
Exceptional arrangements operate with New Zealand, with extradition matters largely being dealt with police-to-police rather than between the national governments. If another country makes an extradition request of Australia, the Attorney-General will issue a written notice to the Federal Circuit Court. A judge must then determine if the person subject to the request is eligible to be extradited.
In making this decision, a judge will consider :. After a judge finds a person is eligible for extradition, the Attorney-General has the final say. In the reverse case, where Australia is the requesting state, the process will depend on the law of the extraditing state. This is painfully apparent in the Leifer case for her alleged victims.
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