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RETURN OF FUGITIVE CRIMINALS UNDER INTERNATIONAL LAW -VIS-A-VIS- EXTRADITION ACT 1962
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RETURN OF
FUGITIVE CRIMINALS UNDER INTERNATIONAL LAW -VIS-À-VIS- EXTRADITION ACT,1962
AUTHORED BY -
MEDHAVI KISHOR PETHKAR
ABSTRACT-
The return
of fugitive criminals across borders is a crucial aspect of international law,
aiming to ensure that those accused or convicted of crimes face justice
irrespective of their location. This study focuses on the intersection of International
Law and the Extradition Act of 1962, a legislative instrument designed to
govern the extradition process in various jurisdictions. Treaties and
conventions have been established to streamline and facilitate the extradition
process, reflecting a shared understanding of the importance of cross-border
collaboration in addressing criminal activities. Through this research paper
the author aims to provide a nuanced understanding of the complexities inherent
in the extradition of individuals accused of criminal offenses across borders.
KEYWORDS-
Extradition
Act, International Law, Extraditable Offense, Fugitives
INTRODUCTION-
As India celebrates its
journey of 75 years of Independence, we cheer on its 75 and upcoming years of
massive development. Along with it, there has been an immense development in
Indian Air technology, thus India is also coping with other countries development
as well. However, due to continuously increasing Air technology all over the
world, it is now convenient for lawbreakers to escape another country after
committing a crime in their State. But as per the old axion, “no one can outrun
the long arm of the law”, the aim of the legal system is that after committing
any offense, the offender should be ultimately brought to justice- no matter
where they are. Thus, the concept of Extradition under International Law finds
its roots in this old axion. Extradition simply means, “surrender of fugitives”
or “delivery of criminals”. Therefore, in extradition accused is delivered from
the state in whose territory the alleged criminal happens to be for the time
being to the State on whose territory, he has been alleged for committing a
crime. Thereby, the accused is surrendered by one nation to another, so that
the accused undergoes trial and punishment within the jurisdiction of the State
where he has been alleged of committing a crime.
Suppose, ‘A’ commits
murder in India for which he is punishable as per section 302 of the Indian
Penal Code. Later, to avoid criminal proceedings he escapes the territory of
India and runs to Australia. In such a situation Extradition is a process
through which ‘A’ would be brought back to India to undergo the criminal
proceedings/sentence here. It won’t be wrong to state that the Extradition
process discourages the offenders who reckon escape as an easy way to sabotage
the power and authority of India’s justice system. Moreover, it is obvious that
delayed arrest and prosecution are a continuous threat to India’s peace, safety
and security.
Treaties and/or bilateral
arrangements act as the basis for the delivery of fugitives to the requesting
sovereign. Sometimes, fugitives are also extradited by one sovereign state to
another sovereign state merely on the basis of the principle of reciprocity and
comity as a matter of goodwill and courtesy between the concerned sovereigns.
The territorial state and
the requesting state are two states that are involved in the extradition
process. The Sovereign State in which the convict or accused flees and takes
shelter with the view to escape punishment or trial is the “territorial state”.
Contrarily, the “requesting state” is the state from where the accused or
convict tries to evade justice and escape the trial or punishment by flying to
other sovereign states. Thus, the “requesting state” is the state where the
alleged offense is said to have been committed. Treaties act as channels
through which the requesting state formally demands the surrender of the
convict or accused. The bilateral treaty is the subject matter of extradition
under international law in most of the cases.
However, there are no
obligations imposed on the sovereign states to extradite nor any special
provisions/procedures are laid down while handing over the concerned fugitive
to the requesting state by international law. International Extradition is just
a formal process through which when a fugitive is found in one country, he is surrendered
to the requesting country for trial or punishment.
The request for
extradition of a person differs from extradition and other terms like
banishment, deportation, and expulsion as in the latter the undesirable person
is forcibly removed. In the extradition request, the requesting state stoutly
demands the delivery of the accused from the territorial state.
The law of extradition is
a municipal law; yet is a piece of International Law also, as it determines the
relations between two sovereign states over an issue that whether or not an
accused must be surrendered by one sovereign state to another sovereign state.
This issue is resolved by national courts but it is based on rules of International
Law relating to the subject as well as based on international commitments.
THE
PHILOSOPHY BEHIND EXTRADITION
It is a general rule that
a lawbreaker must be punished in accordance with the laws of the State which
he/she has violated. But it becomes problematic to carry out a prosecution
against the lawbreaker when he commits a crime in one country and takes shelter
in another country. Here, comes the question of extradition. Extradition also
known as Rendition, process through which a criminal or wanted person, is
surrendered by one country to another country.
It is stoutly believed
that the accused can be prosecuted or punished with utmost efficacy only if he
is prosecuted as per the laws of the place where the cause of action arose or
the crime took place. One of the reasons for this is that procuring the
relevant evidence is more accessible and convenient in the country where the
offense was committed rather than in any other country. However, the interest
of such a country is also more significant in punishing the offender.
While dealing with the
philosophy behind extradition, the principle of State Sovereignty also kicks
in. The exclusive authority of the concerned state over its citizens and
territorial jurisdiction is known as State sovereignty. Thus, technically the
jurisdiction of the state fades the moment the accused enters the foreign
country due to the absence of territorial jurisdiction, but the jurisdiction
over the alleged person does not disappear easily.
As per the maxim ‘Aut
Punire Aut Dedere’, either punish or surrender. The refugee state must either
punish the offender or surrender the offender to the requesting state so that the
requesting state can and will punish the offender. But, as the state
(territorial state) where the offender has sought shelter has no jurisdiction
over the offender, they should prefer to surrender the accused to the
requesting state.
However, even though no
state is required or obligated to hand over to another state any person
(citizen or a non-citizen) who happens to be within its territorial jurisdiction,
for the sake of mutual interest and in order to maintain law and order between
two sovereign states, it is essential that sovereign states must cooperate with
each other in surrendering or returning the alleged person to the requesting
state. Thus, this will avoid the possibility of any future clashes between two
sovereign states, plus most states enter into extradition treaties with each
other to safeguard the situation.
PURPOSE OF
EXTRADITION-
We all are aware of the baffling
issue that crime is turning International nowadays. To run from prosecution,
criminals tend to cross the border and seek shelter in a foreign country. These
criminals are no more afraid that they might get arrested, and they continue to
walk freely without any guilt in their minds across the country. Moreover,
today’s increasingly borderless world encourages them to do so and also gives
them the ability to evade arrest.
Trade and travel are now
at ease due to the relaxing of borders, consequently increased freedom/liberty
is subject to the risk of abuse by criminals.
To ensure that no state
would become a haven for criminals who evade their judicial system, all
sovereign states across the globe needs to start an international battle
against crime. It is now obvious that the states are mutually obligated to
ensure that fugitives in the country are sent back to their respective country,
where they are alleged of committing the crime. They are obligated to do so
concerning their mutual interest with each other and also as it is favourable
to the international community as a whole. However, the practice of extradition
is reciprocal.
To suppress the crime
rate, Extradition is a must. Extradition is based on the thought that criminals
should be punished for their acts, they should not go unpunished. But, when a
fugitive has fled to another country hoping to escape from impending punishment
for the offense he has been accused of, he cannot be prosecuted and punished
due to lack of jurisdiction. Therefore, with the help of an Extradition treaty,
criminals with such unjustifiable motives are bought back to the country where
they have been alleged of committing the crime and it is ensured that they are
not left unpunished for the said crime.
Extradition acts as a green
flag, by clarifying that fugitives cannot escape punishment by fleeing from the territory of the juridically competent state.
Criminals are delivered to the requesting State to safeguard the interest of
the territorial State. If any state adopts the policy of non-extradition of
criminals or even if they are reluctant to extradite the criminals, then they
would act as a safe house for criminals as the criminals would consider fleeing
to that State only. The State therefore would become a safe house of international
criminals, which actually would be risky for it, as they may again commit a
crime there if they are left to be free.
Extradition is based on
the principle of reciprocity. If today, ‘A’ State is requested to surrender the
criminal to the requesting State that is ‘B’ State, then the ‘B’ state is
obligated to surrender the criminal to ‘A’ State in some future date if such
demand is made.
While prosecuting the
criminal, the evidence required so is more freely and conveniently accessible
in the State where the crime has been committed. Thus, State on whose territory
the accused has committed an offence is in a better position to carry out the
prosecution proceedings against the accused than any other State. However, Extradition
is one step towards the success of international co-operation in international
dispute resolution via bilateral or multilateral treaties. In order to
eliminate the crime rate, extradition is of utmost importance if it is done
with international co-operation.
EXTRADITION-
A LEGAL DUTY OF A STATE?
As per an intellectual
prodigy, Hugo Grotius,[1] the
refugee State is legally bound to follow the principle of ‘prosecution or
extradition. The refuge State must either punish the offender or surrender the
offender to the requesting State, so that they will carry further trial
proceedings against him and ensure that the offender is not left unpunished.
However, many States have
failed to follow this principle. In the present era, fugitives are extradited
only when there is an Extradition treaty and not otherwise. In only exceptional
cases, Extradition takes place based on reciprocity and courtesy. It is the
moral duty of the refuge State to deliver/surrender the fugitive to the State
seeking his return. The legal duty of the refuge State to deliver/surrender
arises only when Extradition treaties are concluded within the States. There
exists no obligation on the part of the refuge State to surrender /deliver the
alleged person to the requesting State, because States are sovereign in nature
as they have legal authority over the people within its border.
FUNDAMENTALS
OF LAW OF EXTRADITION-
1)
EXTRADITABLE OFFENSE-
Extraditable offenses are usually serious in
nature and it does include petty offenses or
trial misdemeanours. The offenses for which a fugitive is extradited, are mentioned within
the Extradition treaty of the States.
For example, as per the Extradition treaty
between State ‘A’ and State ‘B’, extradition takes place only when the
punishment for the said offense is for more than one year. Thus, if the accused is charged
with an offense for which the punishment is
less than a year, then he won’t be extradited.
2)
DUAL CRIMINALITY-
It simply means that the extradition process can
only happen when the offense for which the person is alleged to have been committed is
an offense in the jurisdiction of both the sovereign
States.
For example, apostasy is a serious offense in
Islamic Countries like Saudi Arabia. But it is not the same in India, as the
renunciation of religion is legally allowed in India. In such circumstances,
India might reject the plea of the extradition request made by Saudi Arabia for
delivering a Saudi Arabian national on the basis that he had refused to follow
his religion.
3)
RULE OF RECIPROCITY-
The Territorial State accepts the request of
extradition from the requesting State merely based on the assurance that in the
future date the favour would be returned by the requesting State.
4)
PRIMA FACIE CASE-
Individuals cannot be extradited merely on basis
of guess and speculation, there must exist a prima facie case against the
individual.
5)
PRINCIPLE OF PROPORTIONALITY-
Punishment inflicted upon the accused must be
proportional to the offense of which he has been convicted. Extradition may be refused
because the punishment of a crime is inhumane in the requesting State or it is
out of proportion and severe in form when compared to the degree of the offense.
For example, suppose in country ‘A’, offenses
like theft, leaking of censored images or disclosing of classified information
are punished with the death penalty, then the request made by country ‘A’ to
surrender the offender might be rejected by the territorial State ‘B’ on the
ground that the punishment inflicted is severe and inhumane, with respect to
the offense committed.
6)
FAIR TRIAL-
Before accepting the extradition request from
requesting state, it needs to be ensured that the fugitive is given a fair
opportunity to represent himself under a fair trial in the requesting state. It
is part of a formality which needs to be done before delivering the fugitive to
the requesting state. One of the major problems, the Indian government is
facing while getting its Extradition request accepted, is the rampant human
rights violation in prison. The offenders usually take this defence in order to
escape from justice.
7)
RULE OF SPECIALTY-
A fugitive must be tried only for the offense for
which he has been extradited and none other in the requesting State. The territorial State has no authority to
regulate the actions of the requesting State regarding the punishment which has
to be imposed on the extradited person. However, the state cannot punish him
for any other offense for which he has not
been extradited unless he is provided with an opportunity to return to the
territorial state.
PROCEDURE
FOR EXTRADITION
When the territorial
state delivers the fugitive to the requesting state, the arrest warrant issued
must be put forth by the territorial state on the basis of the following
evidence:
·
Establishment of the identity of fugitive criminal.
·
The
fugitive criminal must be extraditable.
·
Crime committed by the fugitive criminal or alleged to have been
committed by him must be extraditable.
When India is the
territorial State, the extradition process begins as soon as the request has
been sent by the requesting state to India. The request must be sent along with
necessary evidence through diplomatic channels to the Government of India
(GOI), Division of the Ministry of External Affairs (MEA), Consular, Passport
and Visa division. After receiving it, the Government of India authorizes the
Magistrate of Extradition to issue an arrest warrant. However, an arrest is
issued only when the above-stated requisites are satisfied. The fugitive
criminal undergoes judicial inquiry after the arrest and it is then submitted
to the Government of India. The Government of India may issue a warrant for the
removal and custody of the fugitive criminal only when it is satisfied by the
report thereby submitted. He is then surrendered at the place specified in the
warrant by the requesting state.
However, when India is
the requesting State, the process of extradition of a fugitive criminal is
quite similar. It starts when a juridically competent Magistrate in India sends
a request to the Government of India (GOI), Division of the Ministry of
External Affairs (MEA), Consular, Passport and Visa division upon the prima
facie establishment of a case against the fugitive criminal. The request sent
by the Magistrate is attached with the relevant evidence and an arrest warrant.
The request is officially sent to the territorial state on the establishment of
the above-stated requisites. Later on, a warrant to arrest the fugitive criminal
is issued by the Inquiry Magistrate of the territorial state. His arrest is
communicated to the Indian Embassy. Eventually, in order to escort the fugitive
criminal back to India Indian authorized personnel travel to the territorial
state.
In India, the central
authority for all incoming and outgoing requests is the Ministry of external
affairs and the government of India. The extradition request of a fugitive
criminal sent to the Ministry of External Affairs is sent by-
?
The State Government under whose territorial jurisdiction the
alleged often is said to have been committed.
?
The court of Law from whose territory the fugitive has escaped or
the court of law by whom the fugitive criminal located abroad is wanted.
?
Ministry of Home Affairs in respect of cases put together by
investigating agencies (e.g. CBI)
EXTRADITION
OF POLITICAL OFFENDER
An act done against the state but has been sanctioned by the
people. If any person commits an act against the state, but for the benefit of
the people, then it would be inappropriate to extradite such a person. These
acts do not include terrorist activity. For instance, our freedom fighters were
extradited for the acts done against the British government during the freedom
movement. This statement sounds erroneous. However, earlier political offenders
were also extradited in order to avoid disturbance in other states. But now,
this practice does not prevail as in the present era political offenders are
granted asylum by the territorial state. Extradition laws also state that
political offenders cannot be extradited.
EXTRADITION
LAWS IN INDIA
Extradition is a complicated arena as it is nowhere exclusively
mentioned in the domain in which extradition prevails- municipal law or
international law. The Law of extradition is a dual law. It is governed by both
municipal as well as International Law. The municipal law of the Sovereign State
determines whether the fugitive shall be extradited or not, but at the same, it
is determined on the basis of international relations, commitments and
treaties. Treaties bind the state while returning a fugitive to the
jurisdiction of the court where it has been alleged for committing an offense.
Extradition Act, of 1962 [2]which
was amended in the year 1993 governs the extradition treaties between India and
other countries. The procedure which has
to be followed while surrendering or delivering the fugitive to the requesting
state has been explained in the act. Also, many other provisions related to
extradition are very well mentioned in the act.
The procedure which ought to be followed in the process of Extradition
is laid down in several sections of the Criminal Procedure Code, 1973. These sections provide act as
a guidebook while dealing with the Extradition process.
- Section 41- When
police may arrest without a warrant
- Section 166A- Letter
of request to a competent authority for investigation in a country or
place outside India
- Section 166B- Letter of request from a country or place
outside India to a Court or an authority for investigation in India
- Section 188- offenses committed outside India
Only on the confirmation
of the extradition order by requesting states court, the territorial state
government finalizes the extradition order and co-operates with the requested
state to hand over the person. Necessary documents and information must be
attached to extradition requests. Regardless of all these legal arrangements,
India faces hurdles when it comes to the question of Extradition. The success
rate of extradition in India is extremely low, out of every 3 offenders only 1
offender is successfully extradited.
LANDMARK
CASES -
- Savarkar’s case[3]
Vinayak Damodar Savarkar escaped to France when he was
being brought back to India from Britain as he was charged with murder and
treason. However, he was surrendered to the British authorities by a French
policeman, who had overlooked the formal extradition proceedings. So, France
demanded Britain to deliver Savarkar back to them so that they would discharge
him again with the proper extradition proceedings. But, Britain refused to do
so, and thus the case was put forth before the Permanent Court of Arbitration
in the Hague. The court agreed that the French policeman had failed to execute
his duty. However, the French plea was rejected as no obligation is mentioned
in international law, for the state to return a criminal. The sovereign
receiving the accused is not bound to the return accused even though the
extradition has been carried out irregularly.
The permanent court of Arbitration decided that
international law does not impose any obligation on the State to return a
criminal. Once a person is extradited even in an irregular way, the country
receiving the fugitive is not bound to return the accused.
- Vijay Mallya case
The famous business tycoon as well as the owner of
Kingfisher Airline, Mr Vijay Mallya is undergoing one of the famous extradition
case that is Vijay Mallya v. State Bank of India. He owes a debt of 17 Indian
banks including the State Bank of India and the Indian Overseas Bank of almost
Rs 6,000 crores. To escape justice, Mallya fled in 2016 from India to the
United Kingdom. Later on, his extradition was sought and his case was put forth
of Westminster
Magistrate’s Court in London. However, the court ordered his extradition to
India in 2018. Even though, his appeal in High Court was also rejected, he has
yet not been brought back to India due to ongoing legal procedures.
It
is also important to emphasize that he was declared as a ‘Fugitive Economic
Offender’ under the Fugitive Economic Offenders Act, 2018. Any person who
commits a fraud of more than Rs 100 crore and then escapes from the impending
punishment by flying from India to a foreign country, is known as a fugitive
economic offender.
Vijay Mallya has been pleading in UK courts that the
prison situation in India is not so good, prisons are not hygienic, safe and
especially during the covid times is not safe and that is why his extradition
was delayed because of covid. His bail application has been rejected by the
Trial Court, by the HC and now finally it is at a stage where it is said that
he is being held up in UK and not being extradited because there is some
confidential legal matter.[4]
- Nirav Modi’s case
A
complaint has been filed by Punjab National Bank against diamond merchant Nirav
Modi and his wife Mrs Ami Modi for unscrupulously obtaining fake Letters of
Understanding (LoU) valued at Rs 11,400 crores.
As
per the orders of higher authorities all assets of Nirav Modi in India were
confiscated. However, even before the scam was detected, Nirav Modi left India.
Red corner notice was issued by Interpol against him in 2018. Thereafter, an
arrest warrant was issued by Westminster Court after receiving an extradition
request from India. In 2019, Nirav Modi was arrested and his extradition was
also approved by the court in the year 2021.But, still he has not extradited to
India. His stay was continued at Wandsworth Prison in southwest London after the
arrest.
Further in the appeal filed by Nirav Modi in the High
Courts, his advocates are arguing that he is not in a good medical condition
and the conditions in Indian prisons or the facilities that are available there
are not so good. That is why his trial is still on. Thus, basically on
humanitarian grounds and invoking the principles of human rights, with the help
of human rights convention these offenders they try to escape the extradition
when it is requested.
However, even after hearing the submissions made by
his advocate in High Court, it was held that UK government must not pick any
holes in the assurance provided by the Indian government that adequate medical
care would be provided at Arthur Road Jail in Mumbai to Nirav Modi. The court
also emphasizes that UK must honour its extradition obligations with India.[5]
- RE CASTIONI’S CASE
The principle laid down in this case was
that if the nature of the offense committed by an individual is political, then
the offender may not be extradited. There was some political turbulence on
going in Switzerland when Castioni killed one of the member of the government
named Rossi. Later on, he escaped to London. Mr.Castioni pleaded before the
court that he me may not be extradited as the offense committed by him was of
political character and in which the provision of extraditing an offender was
absent. The act is said to be of political character only when it has been a
part of political struggle ongoing in that country.
- RE
MEUNIER’S CASE
The principle laid down
in Re Castioni was repeated again in this case. The French anarchist, was
responsible for blasting a bomb at a café and in some barracks in France, due
to which two individuals died. Thereafter, committing such a felonious act he
escaped to England. His extradition request was upheld by the court as the
fugitive was not a political offender.
Court said that for an
offense of political nature, two parties in the requesting state who are
seeking or battling to impose the government of their choice is essential.
However, in the present case, the required essential to determine the French
anarchist as a political offender was absent.
- ABU SALIM
Abu Salim is presently
undergoing a life-imprisonment sentence for various cases. He was convicted for
the 1993 Mumbai serial bomb blasts that killed almost 257 innocent lives and
injured more than 713 people. He is also found guilty of the murder of builder
Pradeep Jain in 1995. Thus, Saleem was prosecuted under the provisions of the
Explosives Act 1884, TADA Act, and Arms Act,1959 but still, he is not been
served the death penalty.
This is because of the
assurance provided by India to Portugal that while extraditing gangster Abu
Saleem, he will not be sentenced to imprisonment of more than 25 years or the
death penalty. The question of respecting this assurance will arise in the year
2030.
At the very same time,
it would be inappropriate not to emphasize the fact that in India's judiciary, the
executive and legislative are three independent branches and the assurance
which was made by the Indian government to Portugal was in its executive
capacity. As the case comes in front of the judiciary, the judiciary being an
independent branch is not bound to abide by the assurance given by the
government in its executive capacity. Thus, the judiciary has the authority to
punish Abu Salim in accordance with the provisions mentioned in the law.
At the same time if
India fails to abide by the solemn sovereign assurance given to Portugal, then
it leads to certain international ramifications. Also, the assurance that Abu
Salim’s imprisonment won’t extend to 25 years is legally unsustainable. If a person
like Abu Salim roams free, then it would result to the death of more than 1000
innocent lives.[6]
CONCLUSION
India needs to assure that its extradition treaties with foreign
nations are watertight, as the success rate of India in extraditing fugitives
is awfully low; out of every three fugitives, only one is being extradited
although we have extradition treaties with various countries. Hence, offenders
are finding loopholes in the said treaty with the view to saving themselves
from being prosecuted in India. Flying to other countries has become a saviour
for the offender in order to hide from justice. Thus, extradition policy must
be reformed in order to achieve success in future times with view to eliminate
such cases.
Maintaining harmonious relations with other countries is also an
indispensable factor for a speedy, smooth, and transparent extradition process.
International law does not mandate any sovereign state to extradite the
fugitive criminal to the requesting sovereign state. Extradition is completely
based on the bilateral or multilateral treaties between the state and in
absence of the treaties it is based on the principle of reciprocity and comity.
However, in the nutshell, it can be determined that in order to
maintain peace and order in society and to punish the fugitives who are trying
to escape from their punishment, the law of extradition and its process is
important.
[1] Dutch Humanist, Diplomat and
Lawyer
[2] An Act to consolidate and amend
the law relating to the extradition of fugitive criminals
[4] https://economictimes.indiatimes.com/topic/vijay-mallya-extradition
[5] https://timesofindia.indiatimes.com/world/uk/nirav-modi-extradition-barred-by-legal-issue/articleshow/96975165.cms
[6] https://www.livelaw.in/top-stories/abu-salem-has-to-be-released-after-25-years-of-sentence-as-per-extradition-treaty-with-portugal-supreme-court-203415
Article Information
RETURN OF FUGITIVE CRIMINALS UNDER INTERNATIONAL LAW -VIS-A-VIS- EXTRADITION ACT 1962
Authors: MEDHAVI KISHOR PETHKAR
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/11/21
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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