When you are in one country, and the government of another country asks for your extradition, and this issue is being considered between the highest authorities of the two states, it may seem that nothing can be done and all you can do is wait. At the same time, the extradition process usually lasts a long time and is extremely exhausting, but there are still ways to protect yourself.
First, let’s try to understand what we mean by the word “extradition.”
In simple words: one state (let’s call it in this article, to avoid confusion, “state X”) receives reliable information that on the territory of another state (it will be “state Y”) a person who is considered a criminal (accused of committing a crime or already sentenced) has been found ⏩ State X sends a request to State Y for the extradition of this person ⏩ the request is considered by State Y in accordance with the requirements established by law and (if a decision is made to satisfy it) negotiations begin on the issue of organizing the transfer of the person to a certain parties place and time.
But there are cases when state Y may refuse to extradite a person. Let’s try to figure out when this happens and why.
It is difficult to call the legal institution of extradition something new in international law. History knows examples when agreements on the extradition of persons were concluded between states back in Ancient Greece. The first known extradition treaty was signed between Egypt and the Hittite Empire in the 13th century BC.
This procedure gained the greatest “popularity” in the XX century. And this is due to the fact that extradition issues are always closely related to political phenomena. Two world wars and the creation of most international organizations, especially the United Nations (UN), could not but influence the attitude of states to issues of respect for human rights when extraditing him to another jurisdiction.
A serious breakthrough in this matter occurred in 1951, when the UN Convention relating to the Status of Refugees was adopted.
From a purely formal point of view, State Y must simply assess the compliance of State X’s request with international and other domestic requirements, and then make a decision: refuse or extradite.
This legal mechanism was developed only to ensure the global security around the world. But, as often happens, in practice is not like in theory, and any mechanisms are not always implemented as intended.
There are cases when states tried, for some reason, to return to their territory persons who had not committed criminal offenses, recognized as criminally punishable something that was not such at all, etc. To understand what to do if you find yourself in a similar situation, you need to divide the extradition process itself into two blocks. Let’s call them “legal” and “political”.
Legal nuances.
When State Y receives a request for the extradition of a person through its diplomatic channels, the first step is to assess the request for compliance with the principle of double criminality. That is, the crime for which the entire process was initiated must be a criminal offense in both the requesting and the requested country. This is a kind of guarantee that persons will not be extradited for actions that are not generally recognized as criminal.
To grant the request, it must also comply with the principle of non-extradition for political crimes, as a guarantee that people will not be tried for their political opinions.
Many jurisdictions also prohibit extradition if a person faces the death penalty, torture or other inhumane treatment, and there is no guarantee that these penalties will not be imposed.
The courts evaluate all documents and evidence presented to determine whether they are sufficient to extradite a person and whether this would entail a violation of fundamental human rights as set out in the Universal Declaration and other international instruments.
Diplomatic negotiations.
Negotiations between governments often play an important role in the final decision, especially when “politically exposed” persons are involved.
In addition to national legislation, international agreements play an important role in this matter. Moreover, these agreements should always have greater legal force than domestic laws, which, in turn, should not contradict them, but can only clarify procedural issues.
The designated agreements are of two types.
By concluding bilateral treaties, countries agree in advance how they will act if they receive a request from that country. Their legal relations cannot influence a third state that is not participating in the signing of such an agreement.
Multilateral treaties can be generally binding for everyone (the Universal Declaration of Human Rights) or only for a group of countries that have signed them. For example, the European Convention on Extradition, adopted by the Council of Europe in 1957, applies only to EU countries.
Agreements on combating certain types of crimes (terrorism, organized crime, human trafficking, etc.) also play an important role. For example, the UN Convention against Transnational Organized Crime (UNTOC), adopted in 2000, includes provisions on cooperation in the field of extradition.
The principle of non-refoulement of refugees and persons at risk of torture and other cruel, inhuman and degrading treatment contains, perhaps, more questions than answers, and has long been the most pressing issue in extradition processes.
The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) sets out obligations for parties involved when transferring persons to other countries.
Thus, Article 3 of this Convention provides that no state shall expel, return or extradite any person to another state if “there are substantial grounds for believing that he would be in danger of being subjected to torture there.”
This means that it is necessary to take into account “all relevant circumstances, including, where appropriate, the existence in a given state of a consistent pattern of gross, flagrant or mass violations of human rights.”
Courts may require the requesting state to provide assurances that the person will receive a fair trial that complies with international standards. However, who controls the actual compliance with these guarantees after the transfer of a person has taken place is completely unclear.
In fact, diplomatic assurances (guarantees) have no binding force and, therefore, legal weight and are not subject to sanctions if they are violated, and the person in respect of whom these assurances are given has no remedy if they are violated.
The Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment noted in his report to the General Assembly that states may not resort to diplomatic assurances as a guarantee against torture or ill-treatment where there are serious grounds for believing that If returned, the person may be at risk of being subjected to torture or ill-treatment.
There are a number of international bodies (committees, commissions, courts) that can be addressed when all legal mechanisms have been exhausted in the country where the person was detained. In this case, it is necessary to take into account the nuances available in the procedures for submitting applications to each of these bodies, including the principle of non-duplication.
Changes that are taking place in the modern world also have an impact on the practice of extradition.
For example, Brexit has implications for the UK’s participation in the European Arrest Warrant System. Previously, EU countries were obliged to carry out extradition, including their own citizens, on the basis of a European warrant from the UK. Now, more than 10 European countries have notified the EU Special Committee on Law Enforcement Cooperation that they do not intend to extradite their own citizens to the UK, at least without the consent of the citizens themselves.
Events such as military operations in Ukraine and a number of others could not but have an impact on the diplomatic relations of states with the Russian Federation. Statistics show that every year Russia extradites more than 1,000 people, and about 120 people are sent in the opposite direction, which is 10-15% of the total number of requests.
For example, the refusal to extradite Amina Grekhanova, who fled from criminal prosecution in Russia, first to Ukraine, and in March 2022 tried to cross the border with Romania and was detained in accordance with the Interpol notification. According to her, Russian authorities previously detained her in Chechnya, tortured her and accused her of participating in military operations in Syria. Her defenders announced a death threat if she returned to Russia. The initial decision to extradite her was eventually overturned by the Supreme Court of Romania, she received refugee status, and Interpol removed information about her search from its database.
In 2023, foreign states refused Russia 114 requests to extradite suspects and accused, and in 38 cases this was for political reasons. Switzerland has officially suspended the provision of legal assistance to Russia, citing “highest doubts that Russia will adhere to guarantees or other international legal obligations in connection with the legal assistance provided.”
Cybercrime is becoming more common today and also raises questions. Often, cybercriminals operate without leaving their own country, while violating the laws of completely different countries. A striking example is that Scottish hacker Gary MacKinnon (known online as “Solo”) could have been extradited to the United States, where he faced up to 80 years in prison for hacking almost a hundred computers operated by NASA and the US Department of Defense, when he was in his London apartment in 2001-2002. As a result, the United States demanded that London hand over this hacker to them so that he could stand trial in accordance with American laws. This story, known online as “the largest hack of military computers in history,” lasted more than 10 years, and in 2012 the final decision was made – not to extradite.
But it is important to note that the lawyers were able to achieve this decision due to the fact that McKinnon suffers from autism and “cannot take full responsibility for his actions.”
The examples given and emerging practice indicate that if an extradition request is made against you, this does not mean that the game is over. If you are a victim of political persecution, do not agree with the charges brought against you, or have a well-founded fear of being returned to the country, then you have a chance to have your extradition denied. At the same time, you need to be prepared that this issue will require time, effort and qualified legal assistance.
All data presented in this article is for informational purposes only. If you need more detailed advice regarding a specific case, you can always contact our specialists who have many years of experience in the field of international law.
Recommend reading:
– United Nations Treaty Collection
– Manual on Mutual Legal Assistance and Extradition:
https://www.unodc.org/documents/organized-crime/Publications/Mutual_Legal_Assistance_Ebook_E.pdf
What is Extradition?
Extradition is a legal process in which one country formally requests the return of a person from another country to stand trial or serve a sentence for crimes committed. It is the most important mechanism of international law to ensure that justice can be administered across national borders.
Who can be extradited?
Typically, persons accused of serious crimes such as murder, fraud or terrorism are subject to extradition. However, specific extradition criteria may vary depending on the laws of the countries involved and the existence of a treaty between them.
What is double criminality?
Dual criminalization is a principle of extradition law that requires that the act for which extradition is sought be considered a crime in both the requesting and the requested country. This principle ensures that persons are not extradited for acts that are not generally recognized as criminal.
Can political criminals be extradited?
Many extradition treaties include a political crimes exception, meaning that persons accused of political crimes cannot be extradited. This exception is based on the understanding that political dissent should not be punished by foreign jurisdictions. However, acts of violence or terrorism often do not fall within this exception.
How does the extradition process work?
The extradition process typically involves an initial request from the requesting country, a review of the request to ensure it meets legal standards, a judicial review in the requested country to assess the validity and legality of the request, and finally, if approved, extradition of the person to the requesting country.
What role do human rights play in extradition?
Respect for human rights is an integral part of the extradition process. International guarantees such as the prohibition of torture and the right to a fair trial must be respected. Extradition requests may be refused if there is a risk that the person will face human rights abuses in the requesting country.
Can an extradition request be rejected?
Yes, an extradition request can be denied for several reasons, including insufficient evidence, potential human rights violations, the presence of a political crime, or if the person could face the death penalty with no guarantee that it will not be carried out.
What are diplomatic guarantees in extradition cases?
Diplomatic assurances are guarantees given by a requesting country to the requested country that specific conditions, such as not using the death penalty or ensuring fair treatment, will be met. These safeguards are intended to address human rights concerns that might otherwise prevent extradition.
How do international treaties affect extradition?
International treaties between countries establish the legal basis for extradition, including the procedures to be followed, the criteria for extradition, and the protection of the individuals involved. These treaties are necessary to facilitate extradition in a manner that is consistent, transparent and respectful of international legal standards.
Is there an alternative to extradition?
In some cases, countries may use alternatives to extradition, such as prosecuting a person in the requested country for crimes committed abroad or transferring convicted persons to serve their sentences in their home country. These alternatives can sometimes resolve legal and human rights issues more effectively than extradition.
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