MOUSAM RANJAN DASH ON EXTRADITION

8/14/2019 MOUSAM RANJAN DASH ON EXTRADITION

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KIIT LAW SCHOOL

A PROJECT REPORT ONEXTRADITION

UNDER GUIDANCE OF

MR. ABHISHEK MISHRA AND MR.RAMCHANDRA NAIRLECTURER, KIIT LAW SCOOL, BHUBANESWAR

BY MOUSAM RANJAN DASH, BSc.LLB, ROLL.NO. 884006, FOURTH SEMESTER, SECONDYEAR.


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Contents

Contents ...................................................................................................................... 2

EXTRADITION: MEANING AND DEFINITION ................................................................... 2

PRINCIPLE OF EXTRADITION AND ITS BASIS ................................................................ 3

DOES EXTRADITION IMPOSE ANY DUTY ON STATES? .................................................. 3

Factor v. Laubenheimer, 290 U.S. 276 (1933) ............................................................ 4

DISTINCTION BETWEEN EXPULSION AND EXTRADITION ............................................. 4

ESSENTIAL CONDITIONS OF GRANTING EXTRADTION OR RESTRICTIONS ON

SURRENDER ................................................................................................................. 6

RESTRICTIONS ON SURRENDER UNDER INDIAN LAW .................................................. 7

EXTRADITION: MEANING AND DEFINITION

In general a state can exercise its jurisdiction within its territory only. This

means the jurisdiction of states has certain limitation. So taking a very layman

man approach lets try to understand what if an individual commits a crime in

one state and after committing the crime he fled away to another state. So can


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the state where the crime is committed exercise its jurisdiction upon this

individual in another state? The answer will raise the principle of extradition.

Before approaching towards its principle, it becomes necessary to understand

and know the meaning and definition of extradition.

Extradition is the delivery of an individual, to the state where he hascommitted or has been convicted of an offence or crime, by the state where

the individual happens to be for time being. According to J.G. Starke, the

term extradition denotes whereby under a treaty or on a basis of reciprocity a

state surrenders an individual to another requesting state of a person accused

or convicted of a criminal offence.

The nature of such treaty is bilateral. According to the section 2 of Extradition

act 19621, the definition says as follows;

PRINCIPLE OF EXTRADITION AND ITS BASIS

The inability of a state to exercise its jurisdiction within the territory of another

state became the basis to the principle of extradition. There was a basic social

need among the states for the maintenance of law and order and that was only

possible if there would be cooperation between the states in the administration

of justice. So in order to establish law and order in the society and bring peace

there was a social need and thus the principle of extradition was recognized.

The awareness among the national decision makers leads to the widespread

practice of jurisdictional cooperation, returning an accused or who has beenconvicted of a crime to the state in which the crime was committed.

DOES EXTRADITION IMPOSE ANY DUTY ON STATES?

International law does not recognize any general duty of states regarding

extradition. Extradition depends upon existing bilateral treaties between

1 The Indian extradition act,1962


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states. The Court in general has always held that the principles of international

law recognizes no right to extradition apart from the treaty while the

government may, if agreeable to its own constitution and law, voluntarily

exercise the power to surrender a fugitive from justice to the country to which

he fled. The legal right to demand his extradition and correlative duty to

surrender him to the demanding state exist only when created by treaty.2 This

is because states have always upheld their right to asylum to foreign

individuals as an inference from their territorial supremacy, those cases where

a treaty imposes an obligation to extradit them. There is no universal rule of

customary international law in existence which imposes the duty of extradition.

DISTINCTION BETWEEN EXPULSION AND EXTRADITION

Detention with a view to extraditionThe detention of a person (already having entered the country) must have the

sole ground of a view of extradition/deportation, to prevent a falsification of

the ground for detention. The lawfulness of the detention with a view to

extradition was an issue in Bozano v. France3, where the Court found that the

applicants detention was unlawful. The Court decided that the deportation of

the applicant from France to Switzerland was arbitrary: although a French

court had refused Italys request for the applicants extradition, the French

government made a deportation order against him; the authorities waited

about a month before serving the deportation order, prevented the applicant

to use any judicial avenue, to contact his wife and lawyer or to nominate a

country for deportation; the applicant was forcibly taken by police across

France to the Swiss border, taken into custody in Switzerland and later

extradited to Italy. The Court found that the circumstance of the case proved

that the applicants detention was a disguised form of extradition that could

not be justified under the Convention.

2Factor v. Laubenheimer, 290 U.S. 276 (1933)

3 Bozano v. France, 9990/82, Council of Europe: European Court of Human Rights, 2December 1987, available at: http://www.unhcr.org/refworld/docid/4029fa4f4.html
http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695325&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695325&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649


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Viewing the circumstances of the case as a whole and having regard to the

volume of material pointing in the same direction, the Court consequently

concludes that the applicant's deprivation of liberty in the night of 26 to 27

October 1975 was neither "lawful", nor compatible with the "right to security of

person". Depriving Mr. Bozano of his liberty in this way amounted in fact to a

disguised form of extradition designed to circumvent the negative ruling of the

Limoges Court of Appeal, and not to "detention" necessary in the ordinary

course of "action ... taken with a view to deportation".

Detention with a view to deportation

The lawfulness of the detention with the view to deportation was examined in

Dougoz v. Greece4, where the Court found although there was a legal basis for

deportation in the national law, the Court observed that the expulsion was

ordered by another body than the one provided by the national law, following

the opinion of a senior public prosecutor concerning the applicability by

analogy of a ministerial decision on the detention of persons facing

administrative expulsion; and that the public danger requirement in the

national law was not fulfilled. In addition, the Court held that the opinion of a

senior public prosecutor concerning the applicability by analogy of a ministerial

decision on the detention of persons facing administrative expulsion did not

constitute a law of sufficient quality within the meaning of the Convention.

Dougoz v. Greece

4 Dougoz v. Greece, 40907/98, Council of Europe: European Court of Human Rights, 8February 2000, available at: http://www.unhcr.org/refworld/docid/3e7203d14.html


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In this connection the Court recalls that in laying down that any deprivation of

liberty must be effected in accordance with a procedure prescribed by law,

the arrest or detention has a legal basis in domestic law. However, these words

do not merely refer back to domestic law; they also relate to the quality of the

law, requiring it to be compatible with the rule of law, a concept inherent in all

Articles of the Convention. Quality in this sense implies that where a national

law authorizes deprivation of liberty, it must be sufficiently accessible and

precise, in order to avoid all risk of arbitrariness.

ESSENTIAL CONDITIONS OF GRANTING EXTRADTION OR RESTRICTIONS

ON SURRENDER

i. Non extradition of political criminal

ii. Extradition is not allowed for military criminals

iii. Also for religious criminals extradition is not granted

iv. The rule of specialty

1. A person extradited under the present Treaty shall not be proceededagainst, sentenced, detained, re-extradited to a third State, orsubjected to any other restriction of personal liberty in the territory ofthe requesting State for any offence committed before surrender otherthan:

(a)An offence for which extradition was granted;

(b) Any other offence in respect of which the requested State consents.Consent shall be given if the offence for which it is requested is itself subjectto extradition in accordance with the present Treaty.

2. A request for the consent of the requested State under the presentarticle shall be accompanied by the documents mentioned in paragraph


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2 of article 5 of the present Treaty and a legal record of any statementmade by the extradited person with respect to the offence.

3. Paragraph 1 of the present article shall not apply if the person has hadan opportunity to leave the requesting State and has not done so within

[30/45] days of final discharge in respect of the offence for which thatperson was extradited or if the person has voluntarily returned to theterritory of the requesting State after leaving it.

v. Double criminality

vi. There should be sufficient evidence for crimes relating extradition, inother words, the crime should be such that it should appear to be acrime prima facie

vii. For the extradition it is also necessary that certain other prescribedformalities should be fulfilled.

viii. The conditions and terms mentioned in the extradition treaty should begenerally fulfilled

ix. When a person is charged with having been an accessory in a crimecommitted in a foreign state which seeks his extradition.

RESTRICTIONS ON SURRENDER UNDER INDIAN LAW

Section 31 of the Indian Extradition act 1962 provides certain restrictions on

surrender of fugitive criminals. These restrictions are as follows;


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MOUSAM RANJAN DASH ON EXTRADITION

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