Extradition is the process by which one State (the requested State) surrenders an individual found on its territory to another State (the requesting State) where he is wanted either to stand trial for an offence he is alleged to have committed, or to serve a penal sentence already pronounced against him.
A distinction should be drawn between extradition and:
deportation, which takes place for reasons (often administrative) which are specific to the deporting State;
refusing a person entry into a country at the border;
repatriation, which does not come within the scope of a penal procedure;
transfer, which is a notion deriving from the Statute of the International Tribunal set up for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991: this involves transferring to the Tribunal a person who was initially being tried by a national court, in application of the principle of the primacy of the Tribunal over national courts for the prosecution of crimes for which it is competent.
surrender as understood by the European Union within the framework of the European arrest warrant, which is intended to abolish formal extradition procedures by accepting the principle of mutual recognition of judicial decisions.
Extradition presupposes that the individual is to be prosecuted: if he is merely wanted to give evidence as a witness, the matter must be settled by a letter rogatory and not by extradition.
2. Sources of extradition law
In addition to international courtesy based on the principle of reciprocity, there are two legal sources: international law and national legislation.
The content of national extradition laws varies considerably: they may for example lay down the procedural rules, or define the conditions to be incorporated in future extradition treaties.
There are various types of international legal text. They may be bilateral extradition treaties (it is worth noting that in 1990, the United Nations drew up a model extradition treaty providing a framework to assist those Member States wishing to negotiate and conclude bilateral extradition agreements); or multilateral extradition conventions, such as the European Convention on Extradition, the Commonwealth Scheme for the Rendition of Fugitive Offenders, the Arab League Extradition Convention, the Interamerican Extradition Convention and the Economic Community of West African States Extradition Convention, or again, international conventions which, without being extradition conventions as such, incorporate provisions relating to extradition law.
3. Principles of extradition law
Since there are numerous provisions which deal with extradition, each case has to be considered individually and according to the applicable provisions. However, there are six basic principles which are common to most extradition laws.
3.1 Influence of nationality on extradition
Many States apply the principle of not extraditing their own nationals. In such cases, a State may undertake to place its nationals on trial under the conditions laid down in its own laws, in application of the principle ‘Aut tradere, aut judicare’ (either extradite or judge).
3.2 Nature of the extraditable offence
It is an accepted principle in international extradition law that political offences may not give rise to extradition. Since no precise definition of a political offence exists in international law, it is up to the requested country to determine whether a given offence is political. In the case of more complex offences (offences which are ordinary law crimes by nature but inspired by political motives), the current tendency is to restrict the definition of a political offence and to allow extradition (see, for example, the European Convention on the suppression of terrorism, which includes a list of offences that, for extradition purposes, are not to be considered as political offences). In addition, whereas earlier treaties contained lists of extraditable offences, more recent treaties define extraditable offences in general terms, according to their gravity and to the penalty which may be incurred (for example, minimum duration of a prison sentence).
3.3 ‘Double criminality’
According to this principle, extraditable offences are only those which are punishable offences in the requesting State, and would have been punishable in the requested State if committed there. By extension of this principle, extradition may be refused if the time limit for prosecution in the requested State has expired. This principle is gradually losing ground.
3.4 ‘Non bis in idem’
In application of this principle, extradition must be refused if the individual whose extradition is requested has already been tried for the same offence. However, if the individual has been pardoned, he may – under the terms of some recent extradition treaties – be tried again.
According to this principle, the person whose extradition has been requested may only be prosecuted, tried or detained for those offences which provided grounds for extradition or those committed subsequent to extradition. If an individual has been extradited in application of a judgment, only the penalty imposed by the decision for
which extradition was granted may be enforced. The principle of speciality means that an individual may only be tried for the offences cited in the extradition request, on the basis of the definition of the offences applicable at that time. If the requesting State discovers, subsequent to extradition, that offences had been committed prior to that date and those offences should give rise to prosecution, it may ask the requested State for authorization to prosecute the extradited person for the new offences (this constitutes a request for extension of extradition).
3.6 Capital punishment
If the requested State does not apply the death penalty to its own nationals who are to stand trial, or if it does not carry out the death penalty even though it is one of the penalties that may be applicable, the requested State may refuse extradition if the person whose extradition is requested is likely to be sentenced to death in the requesting State. However, extradition may be granted if the requesting State provides sufficient assurance that the death penalty will not be carried out.
4. Extradition procedure
The extradition procedure in the requested State may be one of three types:
A combination of both judicial and administrative: this is the most frequent type. In this procedure, a refusal on the part of the judicial authorities to grant extradition is binding on the administrative authorities; on the other hand, if the judicial authorities give their consent to extradition, the administrative authorities may – in addition to purely legal considerations – examine the question of reciprocity or whether extradition is desirable.
Depending on extradition laws, there are two kinds of examination:
an examination of the documents submitted with the extradition request, the purpose of which is to verify whether the formal conditions for extradition have been met (this is the system in ‘Continental-law’ countries);
an examination of the substance of the case, and of the evidence to determine whether there is ‘reasonable and probable cause’ (this is the system in common-law countries).