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“EXTRADITION LAW: A COMPARATIVE ANALYSIS OF INDIA, USA AND EUROPE”, 1ST EDITION 2023 BY: KIRAN ASHOK KADAM, DR. GIRISH ABHYANKAR & DR. ANAYA SHARMA
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Article Details
“EXTRADITION LAW: A COMPARATIVE
ANALYSIS OF INDIA, USA AND EUROPE”, 1ST EDITION 2023
AUTHORED BY: KIRAN ASHOK KADAM
LL.M
student, Symbiosis Law School, Pune
CO-AUTHOR: DR. GIRISH ABHYANKAR
(Assistant
Professor, Symbiosis Law School, Pune)
CO-AUTHOR 2: DR. ANAYA SHARMA
(Assistant
Professor, Symbiosis Law School, Pune)
Symbiosis Law School (SLS) Symbiosis International
(Deemed University) (SIU), Vimannagar, Pune, Maharashtra, India
Name
of the Book:
“Extradition
Law: A Comparative Analysis of India, USA and Europe”, 1st
Edition 2023
By Author:
Dr. Anil Kumar Dixit
1. About The Book:
“Published by True Sign Publishing
House, E-mail: truesignbooks@gmail.com, Website: www.truesign.in , Copyright © 2023 by True Sign, Extradition
Law (A Comparative Analysis Of India, USA and Europe) Author: Dr. Anil Kumar Dixit,
First Edition: 2023”
“In his book author offers a
compelling exploration of extradition law, skillfully dissecting the nuances
across India, the USA, and Europe. A must-read for anyone seeking a profound
understanding of the legal intricacies surrounding cross-border criminal
justice. The comparative analysis is thorough, shedding light on the unique
challenges each jurisdiction faces.” “A valuable contribution to the discourse
on international law and extradition. Explore the historical evolution, key
principles, and contemporary challenges in extradition proceedings, offering a
nuanced understanding of the divergent approaches taken by these jurisdictions.
From treaty frameworks to case studies, this book provides a valuable resource
for legal scholars, practitioners, and anyone intrigued by the complexities of
international law and justice.”
2.
About The Author:
Dr. Anil Kumar Dixit
(M.A. in Political Science, LL.M.,
PGDJ and Ph.D.)
Professor & Principal, Career
College of Law
Bhopal, (M.P)
Contact-akdagra@yahoo.co.in
Dr. Anil Kumar Dixit is a highly
respected figure in the spheres of law, academia, and social activism. Born in
1973 in Agra, he achieved his degrees in law and political science from Dr.
Bhimrao Ambedkar University in Agra. With an extensive background in teaching
and research, Dr. Dixit has been contributing to legal education as a professor
and has served as Principal at Career College of Law in Bhopal, Madhya Pradesh.
As, this is his fourth Book. Dr. Anil Kumar Dixit has actively participated in
numerous workshops, both national and international seminars, where he not only
presented but also published thought-provoking research papers. His journey
began in the world of journalism with the Hindi daily 'Aaj' in Agra,
eventually ascending to the role of editor in various national newspapers over
a span of 12 years.
3.
The Context and Background of the key theme:
The author deeply immersed in the
field of international law, has crafted this book, "Extradition Law: A
Comparative Analysis of India, the USA, and Europe" to serve as a
comprehensive guide through the intricate legal frameworks of extradition. This
text is borne of a desire to shed light on how sovereign nations collaborate in
the complex pursuit of justice across borders. Through the authors detailed
exploration, he has focused on three distinct jurisdictions—India, the United
States, and Europe—each with its own legal customs and procedures. This
comparative study offers a unique vantage point from which to understand the
shared and distinct elements that govern extradition practices in these
regions.
Chapter 1
Introduction:
International extradition represents
a fundamental aspect of global law enforcement and justice, involving the
formal process by which one sovereign nation requests and secures the transfer
of a person from another sovereign state[1].
This person is typically wanted for trial, sentencing, or to serve a sentence
for an offense committed within the jurisdiction of the requesting nation.(pg.13)
The historical case of "U.S.
v. Rauscher" [2]
illustrates this point by noting that, without treaties, nations are not
inherently obliged to extradite fugitives, thereby emphasizing the importance
of formal agreements in the practice of extradition across international
boundaries. Furthermore, the process of extradition is complex and
multifaceted, involving considerations of justice, human rights, and national
sovereignty.
In Oppenheim's International Law, the
expression extradition has been defined as follows: According to seminal legal
references, According to Black's Law Dictionary[3],
extradition means: ''The surrender by one State or Country to another of an
individual accused or convicted of an offence outside its own territory and
within the territorial jurisdiction of the other, which, being competent
to try and punish him."
The author refers to the Book “Introduction
to International Law” 10th edition by J. G. Strake where he defined the term Extradition, “Though
extradition is granted in implementation of the international commitments of the State, the procedure to
be followed by the courts in
deciding, whether extradition should be granted and on what terms, is
determined by the municipal law of the land.” Thus, extradition is
founded on the broad Principle of Albeit. (Pg.14)
In India, the legal framework for
extradition is established by the Extradition Act of 1962. The term "treaty
state" refers to countries that share active extradition
agreements with India. The authors say that Interestingly, in the absence of a
specific extradition treaty, the Indian government has the authority to
recognize any international convention that both India and another country have
ratified, as the basis for extradition relative to the offences mentioned
within that convention.
“According to Section 2(c)(i), an
extradition treaty is an agreement between two or more countries for reciprocal
extradition of individuals charged with certain offenses. Furthermore, Section
2(d) clarifies that an extradition arrangement includes any pre-independence
treaties from before August 15, 1947, which remain in effect and binding on
India.” The Extradition Act of 1962, along with extradition treaties and
conventions, serves as the legal framework for extradition in India (Subramanian,
S., 2014).(Pg.
14-15)
“In case Daya Singh Lahoria v.
Union of India 2001[4], Supreme
Court of India, expatiating over the importance of extradition law, in
authoritative term” “Extradition is a great step towards international
cooperation in the suppression of crime. It is for this reason that the
Congress of Comparative Law at Hague in 1932, resolved that States should treat
extradition as an obligation resulting from the international solidarity in the
fight against crime.”
“PRINCIPLES
ALBEIT THE LAW OF EXTRADITION:” (Pg. 16-17)
a. Principle of Double
Criminality:
The double criminality principle requires an act to
be illegal in both the requesting and the requested countries for extradition
to proceed. It ensures that states aren't obligated to extradite individuals
for acts that aren't criminal under their own laws.
b. Principle of
Specialty:
The specialty principle in extradition law restricts
the prosecution of an extradited individual to only the offenses listed in the
extradition request. This protects the person from facing charges not
originally consented to by the extraditing state. However, with the
individual's agreement or the extraditing country's permission, other charges
can be pursued.
c. Political Exception:
The political offense exception denies extradition
for politically motivated punishments, but definitions vary by country and
exclude terrorism.
PROCEDURE OF EXTRADITION:
GENERAL (Pg. 17-18)
The authors further specifies that
the extradition operates under the principle "no extradition without
law," akin to "no crime or punishment without law." A
state requesting extradition must specify the person and crime, and submit
necessary supporting documents, although evidence standards may differ by
country.
“In the case of Abu Salem Abdul
Qayoom Ansari v State of Maharashtra, the Indian Supreme Court recognized the
principle of specialty as a universal aspect of international law, interlinking
dual criminality and reciprocity”.[5]
Extradition procedures generally
adhere to the principles outlined in international treaties
INDIA
In India, extradition requests from
foreign states are made to the Central Government, which can initiate a magisterial
inquiry under Section 5 of the Extradition Act, 1962. A designated Magistrate
conducts the inquiry as if the crime occurred domestically, considering
evidence including authenticated legal documents. If the inquiry shows a prima
facie case, the magistrate can detain the fugitive and submit its findings to
the government, otherwise, the fugitive is released (Pg.18-19)
Bail for Fugitive
Criminals:
Section 25 of the Extradition Act,
1962 allows for the application of the Criminal Procedure Code's bail
provisions to fugitive criminals arrested under the Act. This includes the magistrate has equivalent powers
to that of a Court of Session when determining bail matters. Both anticipatory
and regular bail options are available to the accused fugitive criminal. The
Extradition Act of 1962 in India does not offer a statutory appeal for
extradition decisions; grievances must be addressed by appealing to the High
Court's writ jurisdiction. the Arms Act, 1959[6];
the Indian Penal Code of 1860[7],
the Maharashtra Control of Organized Crimes Act, 1999[8],
the Narcotic Drugs and Psychotropic Substances Act, 1985[9],
the Unlawful Activities “Prevention Act, 1967[10],
the Terrorist and Disruptive Activities (Prevention) Act, 1987[11],
and the Prevention of Terrorism Act, 2002”[12].
Conditions Limiting Extradition:
“A fugitive criminal cannot be
surrendered if”:
The offense for which extradition is sought
is considered politically motivated[13]. The
prosecution for the offense has expired under the statute of limitations in the
requesting state[14]. The
individual is charged with an offense in India [15]that
is different from the extradition offense[16].
Exemptions to Political Offenses: Under Section 31 of the Extradition
Act, 1962, certain offenses are not deemed political. (Pg. 20-22)
Important Case Laws: (Pg. 22-30)
·
“Re: K.R.P.L. Chockalingam Chettiar,
AIR 1960 Mad 548”
·
“Rajender Kumar Jain & Ors v.
State through Special Police Establishment & Ors, 1980 (3) SCC 435”
·
Kubic Darusz v. Union Of
India,1990(1) SCC 568
·
Bhavesh Jayanti Lakhani v. State of
Maharashtra, 2009 SCC 551
·
Mohammed Zubair Fauzal Awam v. State
of,2011, Cri LJ 2975
·
“P. Pushpavathy v. Ministry of
External Affairs,2013 Cri LJ 4420”
Chapter 2
CURRENT STATE OF EXTRADITION LAW AND
PRACTICE
Extradition is based on international
comity, a discretionary cooperation between nations not mandated by global law.
It occurs per national laws or treaties and is legally required when states
commit to treaties outlining extradition for specific crimes.
Legal Basis for Extraditing:
· Bilateral extradition agreements:
Bilateral treaties form the basis for
reciprocal extradition between states, and enduring treaties even from the 19th
century are still key today. While such agreements are crucial in many places
like the U.S. and in some civil law nations like Brazil, the Netherlands, and
Slovenia. countries can extradite
without a treaty, relying on national laws and mutual co-operation, reflecting
modern updates to tackle cross-border crime.
2. Multilateral extradition treaties
and conventions:
The international community has
expanded multilateral extradition treaties to unify the extradition process.
The UN's 1990 Model Treaty on Extradition serves as a collaborative guideline
against organized crime and terrorism, although it's not legally binding.
Regional groups, sharing closer legal ties, often form consensus more easily on
extradition, with treaties often including flexible clauses to accommodate
legal differences. Extradition have been established to establish a framework
for cooperation between multiple countries in the extradition process.
Chapter 3
“United States: International
extradition: A guide to U.S. And International Practice”: (Pg.
50-53)
The U.S.'s attempt to extradite
Julian Assange from the UK has sparked widespread discussion about
international extradition law and practices[17],
with a verdict on Assange's case due soon[18].
This event is among other high-profile cases, such as Iraq's controversial
murder charge against refugee Omar Ameen in the U.S.[19],
Mullah Krekar's extradition from Norway to Italy for terrorism-related
activities[20], and
the arrest of Emilio Lozoya in Spain for pending corruption extradition
requests by Mexico[21].
This guide provides an overview of the U.S. role in international extradition,
including standard treaty elements, the U.S. extradition process[22],
and common defenses, aiming to assist practitioners with extradition cases.
Extraditable offenses are defined by treaties and include common
criteria:
Political offenses are usually exempt from extradition[23].
Nationality may affect whether a country will extradite its own citizens[24].
Non bis in idem means an individual cannot be tried again for the same offense
after acquittal or conviction[25].
“The rule of specialty stipulates that an extradited person can only be tried
for the crimes for which they were extradited”[26].
Statutes of limitations dictate that offenses must be eligible for prosecution
within a certain time frame to qualify for extradition.
Chapter 4
United States: (Pg 54-60)
The steps for extradition from the
United States are as follows:
The Department of State reviews the
extradition request. The Office of International Affairs evaluates the
request's sufficiency. OIA sends the request to a U.S. Attorney's Office to
obtain an arrest warrant. The case is presented before an extradition judge. The
judge issues a certification, and the Secretary of State makes a final
decision. The person is notified and either transferred or released depending
on the outcome and extradition process for the United States.
“International extradition a guide to
the European Union and International Practice”: (pg. 61-79)
At the heart of the EU's harmonized
legal environment is the European Arrest Warrant, which has streamlined the
extradition process by reducing administrative procedures and removing
political barriers, thereby expediting judicial cooperation between member
states. This guide offers insight into the complex nature of extradition
practices at an EU and global level, highlighting the EU's advancements in
facilitating swift and collaborative crime-fighting efforts[27].
The EU has notably streamlined
extradition protocol across its member states, paving the way for concerted
efforts in tackling crime that transcends national boundaries[28].
However, contemporary treaties, especially within the EU context, abide by the
principle of 'dual criminality', which mandates that the offence must be
punishable under the laws of both the requesting and requested countries[29].
Chapter 5
List Of the Fugitives Brought to
India in The Last Five Years: (Pg. 80-82)
Rajiv Saxena and Deepak Talwar were extradited from the UAE in
January for involvement in the Agusta Westland chopper scandal. Mohammed
Yahya was brought from Indonesia in October 2018 to face charges of
cheating, forgery, and conspiracy. In a similar case, Vinay Mittal was
also extradited from Indonesia in September 2018. Mansoor/Farooq Takla,
accused of terrorism, was extradited from the UAE in March 2018. In September
2017, Abubakr Kadir Lonut Alexandru was returned from Singapore for a job scam
case. Abdul Raut Merchant Mohammad Sultan was extradited from Bangladesh in
November 2016 on murder charges. Chhota Rajan, involved in murder and kidnapping,
was extradited from Indonesia in November 2015.
Comment on the BOOK:
The dual purpose of the author’s
analysis is straightforward yet ambitious, to demystify the core principles of
extradition law and provide an in-depth look at how these principles manifest
in the specific contexts of the jurisdictions in question. The author will
navigate us together through historical milestones, precedent-setting legal
cases, and the nuanced legislative details that contribute to the overall
mosaic of international extradition law.
The author in this case is employing
a comparative approach, he aims to not only articulate the legal complexities
but also to consider the practical effects of extradition decisions within
different legal systems. It is the hope that this book will prove to be an
insightful and indispensable resource for legal practitioners, scholars, and
decision-makers engaged in the realm of transnational judicial processes.
The book demonstrates the author’s aspiration
that it enriches the readers to understanding and equip themselves to better
navigate the intricacies of extradition law in our increasingly interconnected
global community.
References
[1] S. Agrawal, "A Study on the Concept of Extradition
in India".
[2] S. Goel. "Extradition Law: Indian Perspective". Social Science Research Network. Jan. 2016. 10.2139/ssrn.2712453.
[3] S. Subramanian, "The role of human rights in extradition: the imperatives of reforming the Indian extradition law".
[4] J. Soma, T. F. M. Jr and H. M. L. Brissette, "Transnational Extradition for Computer Crimes: Are New Treaties and Laws Needed?".
[5] S. Vashisth, "Extradition: Its Meaning and Function in India".
[6] R. Patel, "One More Effect of NAFTA - A Multilateral Extradition Treaty".
[7] "Extradition".
[8] C. Doyle. "An Abridged Sketch of Extradition To and From the United States". Library of Congress. Congressional Research Service. Oct. 2016.
[9] "International Extradition And Related Matters".
[10] "Treaty Between the UNITED STATES OF AMERICA and INDIA".
[11] C. Doyle, "An Abridged Sketch of Extradition To and From the United States".
[12] S. Jhingan, "Indian Extradition Law – Process For Seeking Extradition Of Persons From Foreign States".
[2] S. Goel. "Extradition Law: Indian Perspective". Social Science Research Network. Jan. 2016. 10.2139/ssrn.2712453.
[3] S. Subramanian, "The role of human rights in extradition: the imperatives of reforming the Indian extradition law".
[4] J. Soma, T. F. M. Jr and H. M. L. Brissette, "Transnational Extradition for Computer Crimes: Are New Treaties and Laws Needed?".
[5] S. Vashisth, "Extradition: Its Meaning and Function in India".
[6] R. Patel, "One More Effect of NAFTA - A Multilateral Extradition Treaty".
[7] "Extradition".
[8] C. Doyle. "An Abridged Sketch of Extradition To and From the United States". Library of Congress. Congressional Research Service. Oct. 2016.
[9] "International Extradition And Related Matters".
[10] "Treaty Between the UNITED STATES OF AMERICA and INDIA".
[11] C. Doyle, "An Abridged Sketch of Extradition To and From the United States".
[12] S. Jhingan, "Indian Extradition Law – Process For Seeking Extradition Of Persons From Foreign States".
[1] See: P. Ramanatha Aiyar’s Concise
Law Dictionary, Lexis Nexis, Fifth Edition, P.476
[2] See: Abu Salem Abdul Qayyum Ansari
v. CBI& Another, (2013) 7 SCR 1061
[3] See: Black’s Law Dictionary,
Centennial Edition (1891-1991), Sixth Edition, p.585
[4] Daya Singh Lahoria v. Union of
India, 2001(4) SCC 516
[5] “See: As per Section 21 of
the Extradition Act, 1962, an extradited person can only be prosecuted for the
offenses listed in the extradition request. The principle of specialty does not
preclude prosecution for lesser offenses provided under Section 21(b) of the
same Act”
[6] Section27(3) of the Arms Act,1959.
[7]“ Death Penalty under the Indian
Penal Code of 1860 is provided for offences committed under the following Sections: 121, 132, 194, 1954, 302, 305,
307(2) 364A, 396, 376E and 376A”
[8] “Section 3(1)(i) of the Maharashtra Control
of Organized Crimes Act, 1999”
[9] “Section 31A of the Narcotic Drugs and
Psychotropic Substances Act, 1985”
[10] Section 16(1) of the Unlawful
Activities Prevention Act, 1967.
[11]Section 3(2)(i) of the Terrorist and Disruptive
Activities (Prevention) Act, 1987.
[12] “Section 3(2) (a) of the Prevention of
Terrorism Act, 2002”.
[13] “Dr. Babu Ram Saksena v. The
State, AIR 1950 SC-155 the year 1869”
[14] The state of Madras v. C.G. Menon, AIR 1954 SC 517
[15] “Sarabjit Rick Singh v. Union Of
India, 2008(2) SCC417”
[16] “Hans Muller of Nurenburg v.
Superintendent, Presidency Jail, Calcutta and Ors., AIR 1955 SC 367”
[17] “See Mia Swart, Julian Assange extradition
verdict to be delivered on January 4, Al Jazeera (Oct. 2, 2020)”.
[18] “See William Booth, U-Md. professor
testifies, amid glitches, at Assange extradition hearing in London, The Wash.
Post (Sept. 7, 2020)”.
“The U.S.
extradition process involves collaboration between governmental and judicial
figures. It's coordinated by the Department of State’s legal division and the
Department of Justice's Office of International Affairs, with aid from federal
prosecutors nationwide.”
Extradition relies on the presence and stipulations of a relevant treaty and is
a meticulous, often lengthy procedure that can span multiple years.
[19] See Ben Taub, The Fight to Save an Innocent Refugee
from Almost Certain Death, The New Yorker (Jan. 20, 2020).
[20] “See
Norway extradites jihadist preacher Mullah Krekar to Italy, BBC News (Mar 26,
2020)”.
[21] “See
Spain orders detention of ex-head of Mexico oil firm pending extradition
request, Reuters (Feb. 13, 2020)”.
[22] “See U.S. Dept. of State, 7 Foreign Affairs
Manual (FAM) 1613.1(c). The State Department compiles an annual publication
titled Treaties in Force, which contains the most up-to-date list of countries
with which the United States has extradition treaties. See U.S. Dept. of State,
Treaties in Force (last accessed November 10, 2020)”
[23] See, e.g., Extradition Treaty,
U.S.-U.K., art. 4(2), Mar. 31, 2003, S. Treaty Doc. No. 108-23 (listing
specific offenses that "shall not be considered political offenses,"
including "a murder or other violent crime against the person of a Head of
State of one of the Parties, or of a member of the Head of State's
family," and "an offense involving kidnaping, abduction, or any form
of unlawful detention, including the taking of a hostage").
[24] “See 7 FAM 1613.4(c)”
[25] “See 7 FAM 1613.4(a)”
[26] “See 7 FAM 1612”
[27] BBC News. "Vijay Mallya:
India tycoon to learn extradition fate." BBC.
[28] The Guardian. (2023). "Nirav
Modi's extradition case: what we know so far." The Guardian.
[29] BBC News. "Christian Michel:
The story so far." BBC.
Article Information
“EXTRADITION LAW: A COMPARATIVE ANALYSIS OF INDIA, USA AND EUROPE”, 1ST EDITION 2023 BY: KIRAN ASHOK KADAM, DR. GIRISH ABHYANKAR & DR. ANAYA SHARMA
Authors: KIRAN ASHOK KADAM, DR. GIRISH ABHYANKAR, DR. ANAYA SHARMA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/06/27
- Issue 7
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