9 August, 2019
Part I of the article elaborates on legal basis and purpose extradition, the procedure and the statutory provisions of Indian Extradition Act, 1962 as well as the key aspects of the extradition treaty between India and the UK. Here we will discuss the extradition treaties between India and the US, India and UAE. This post further elaborates on the practice of non-extradition of own nationals and various issues that may be faced by States whilst processing a request for extradition.
Extradition Treaty Between India & the United States (US)
The offence is extraditable if punishable under the laws in both contracting parties by imprisonments for more than one year or by a more severe penalty. This applies:
- Whether or not the laws in the contracting state place the offence within the same category of offences or describe the offence by the same terminology.
- Whether or not the office is one for which US federal law requires the showing of such matters as interstate transportation, or use of mail or other facilities affecting interstate or foreign commerce, such matters being merely for the purpose of establishing jurisdiction in a US federal court.
- Whether or not it relates to taxation or revenue or is one of a purely fiscal character.
Extradition shall be granted for an extraditable offence regardless of where the act or acts constituting the offence were committed.
Usually, an extradition treaty contains a list of extraditable offences agreed upon between the contracting States, and generally exclude political and military offences With regards to offences such as murder or other willful crimes against a Head of State or Head of Government or a member of their family, aircraft hijacking offences, aviation sabotage, crimes against internationally protected persons including diplomats, hostage taking, offences related to illegal drugs, or any other offences for which both contracting states have the obligation to extradite the person pursuant to a multilateral international agreement.
Extradition shall not be refused on the ground that the person sought is a national of the requested State.[i] Extradition may be refused in cases of offences under military law or political offences or where the extradition request is politically motivated.
Extradition Treaty Between India & UAE
The Government of the United Arab Emirates (UAE) and the Government of the Republic of India entered into an agreement in 1999 on mutual legal assistance in criminal suits, following which the two countries signed an extradition treaty in 2000. Under the agreement, both countries are required to hand over the accused to the other country, where the person to be extradited is accused of an offence in the country requesting extradition. Further, such an offence must be punishable under the laws of both India and the UAE with imprisonment for at least one year, or the person has been sentenced by the court of the other country for at least six months.
Absolute Exemption of Nationals
Traditionally, many States are strongly opposed to extraditing their own nationals. This attitude and practice are commonly based on or confirmed in national legislation granting nationals the right to remain in the territory of the State and not to be extradited or expelled.[ii] The history of the practice of non-extradition of nationals can be traced back to the ancient times. The studies reveal that the Romans and the Greek City States did not surrender their citizens.
The first treaty in which an express exemption of nationals appeared was the treaty of 1834 between France and Belgium. French treaty practice after 1844 uniformly excluded the extradition of the requested State’s own nationals.[iii]
Nationality as an exception to extradition has its origin in the sovereign authority of the ruler to control his subjects and the lack of trust in other legal systems. Under existing international practice, a State is assumed to have practically unlimited legal control over its nationals.[iv] Thus, nationality is the legal basis for the exemption of citizens from extradition because allegiance and protection go together: where States demand obedience from their subjects, it is natural for nationals to expect protection from being extradited to a foreign State.
Indian nationals who return to India after committing offences in West Asia/Gulf countries are not extradited to those countries. They are liable to be prosecuted in India in accordance with Indian Law, as the bilateral treaties with these States preclude (except Oman) extradition of own nationals. India adheres to the principle of not extraditing its own nationals. The memorandum on “Extradition” was submitted by the Government of India to the Asian-African Legal Consultative Committee at its Third Session (Colombo, 1960), clarifying its position on the issue.
However, in practice, India follows a dual system, by extraditing nationals on the basis of reciprocity where, if the other Treaty State does not extradite, India also bars extradition of its own nationals.
There are various Multilateral Conventions, Codes and Projects that contain provisions prohibiting the extradition of nationals of the signatory Parties and make it obligatory for them to take action against them for crimes with which they are charged. This ensures the State cannot allow the nationality of the accused to impede punishment in any way.
Process in Case of Multiple Extradition Requests
The Extradition Act, 1962 makes provisions for the situation where the request comes from more than one State for the surrender of a fugitive criminal. The discretion in this regard is given to the Central Government as provided under Section 30 of the Act, which stipulates that, “if requisition for the surrender of a fugitive criminal are received from more than one foreign State the Central Government may, having regard to the circumstances of the case, surrender the fugitive criminal to such State or country as the Government thinks fit.”
Generally, there is no agreed rule covering the case where extradition is requested concurrently by more than one State, either for the same offence or for different offences. If a requested State receives more than one request for the same offence, reference will be given to the State in whose territory the act was committed. But, if the act was committed in more than one requesting State, the requested State may extradite the person claimed to the State whose request is first received. When a State receives requests from two or more States for the same person in respect of different offences, the requested State may, in extraditing the person claimed, decide to which State it will extradite such person, having regard to all circumstances, especially the relative seriousness of the offences, the nationality of the person claimed, the times when the requests were received and the possibility of subsequent extradition to another State.
The treaty between the UK, India and the Netherlands[v] and the treaty between the UK, Ireland and the Swiss Federal Council[vi] give preference to those States whose requests were received first. A few treaties accord preference priority wise: first priority is given to the party whose security or interest or its nationals or their interests are most affected by the offence; second priority is given to the party on whose territory the offence is committed; and the last priority is given to the party of which the person to be extradited is a national. Where the circumstances are identical, then the requesting State that made the first request is accorded preference.
Where the request for extradition is for several offences, then the circumstances of the offence and its gravity are factored in.
Treaties between India and the Kingdom of Bahrain, Kuwait, the Sultanate of Oman, the UAE and Uzbekistan all consider requests priority wise. Other treaties also make provision in this matter. However, treaties with Bhutan and Nepal remain silent in this matter.
Where there is no provision made in treaties on the subject, the discretion lies with the Central Government whether to grant or deny the request.
Absence of a Formal Extradition Treaty
Contrary to the popular assumption that there can be no extradition in the absence of a formal extradition treaty, ad hoc arrangements can be entered into between the State parties for the purpose of seeking extradition. Factors that affect the grant of request include the extent of diplomatic ties between the States and the legal system of the requested State. Existence of a formal treaty merely simplifies the process and places an obligation on the State parties to abide by the terms of the treaty.
The lack of a formal extradition arrangement may lead to rejection of the request, for instance the lack of a formal agreement with Argentina was a primary reason for the denial of extradition of Ottavio Quattrocchi, who was wanted in India in relation to the infamous Bofors case. However, a lack of extradition treaty does not defeat the process of extradition as the States can enter into specific arrangements for the purpose of extradition.
Today, extradition is an invaluable process to bring back those accused of corruption and financial crimes to stand trial and answer for their offences. Despite the fact that it is a laborious, time consuming process, eventually subjective to benevolence of a foreign government – extradition is the only way to bring back the accused persons evading the grasp of justice. The process depends extensively on good will between countries and the intimacy in diplomatic relations apart from the procedure to be followed under the municipal laws of the concerned states.
For further information, please contact:
Faraz Alam Sagar, Partner, Cyril Amarchand Mangaldas
faraz.sagar@cyrilshroff.com
[i] Extradition Treaty between the Government of the Republic of India and the Government of the United States of America, signed June 25, 1997, ratified July 21, 1999.
[ii] Zsuzsanna Deen Racsmany and Judge Rob Blekxtoon “The Decline of the Nationality Exception in European Extradition? The impact of the Regulation (Non) Surrender of Nationality Dual Criminality under the European Arrest warrant”, 13 European Journal of Crime, Criminal Law and Criminal Justice (EJCCL & CJ) 317-363(2005).
[iii] Ivan A Shearer, “Non-Extradition of Nationals”, The Adelaide Law Review.
[iv] Sharon A Williams, “Nationality, Double Jeopardy, Prescription and the Death Sentence as Bases for Refusing Extradition’, 62 International Review of Penal Law 259 (1991).
[v] Extradition treaty between United Kingdom of Great Britain, Republic of India and Netherlands, 1989, Article XIV.
[vi] Extradition treaty between United Kingdom of Great Britain and Ireland and Swiss Federal Council, 1996, Article XV.
