Concept, Definitions and Procedure

In simple terms extradition is the act one government formally turning over an alleged
criminal to another government authority for prosecution for a criminal charge.

International extradition is the surrender by one nation to another, for trial and
punishment, of a person accused or convicted of an offence within the jurisdiction of
the latter. A request for extradition is generally initiated against a fugitive criminal,
who is formally accused of, or is charged with, or is convicted of an extradition
sentence.

Currently, the Indian Extradition Act, 1962 with its latest amendment in 1993
provides the Indian statutory regime of extradition
Concepts
 a. Who is a fugitive criminal?
 b. What is a foreign state?
 c. What for the fugitive criminal is
extradited and on what basis?
Definitions
 In Oppenheim’s International Law, the expression
extradition has been defined as follows:
 “Extradition is the delivery of an accused or a convicted
individual to the State where he/she is accused of or has
been convicted of a crime, by the State on whose territory
he/she happens for the time to be.”
 According to Black’s Law Dictionary:
 “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,
demands the surrender.”
How is Extradition Regulated
 This delivery of individuals to the requesting
sovereign is based on treaties and/or bilateral
arrangements; however, sometimes this delivery
of individuals occurs by reciprocity and comity
as a matter of courtesy and goodwill between the
sovereigns.
Principles that govern Extradition
 Principles of Double Criminality: This
principle, also known as “Dual Criminality”
states that, extradition is available only when
the act in question is an offence in the
jurisdictions of both the States (the requesting
State and the State requested). The rationale
behind this principle is that, the requested State
should be at liberty to refuse to extradite the
fugitive offender if they do not view the
conduct of the fugitive offender as a criminal
act.
 Principle of Speciality: An extradited individual can
be tried only for offences specified in the extradition
request; the object of this principle is to prevent
blanket extradition requests. The requesting State
pledges to judge the requested person only for the
crime for which extradition was requested, and not
for any other offence. As a matter of fact, post the
surrender of a fugitive offender, he/she can expressly
waive the rule of speciality, and can be tried for
offences in addition to, or in furtherance of the
offences qua which he/she was surrendered.
Moreover, in certain cases, the requested State can
agree to the fugitive offender being tried for other
offences, in addition to offences apropos which the
fugitive offender was surrendered to the requesting
State.
 Political Exception: Request albeit extradition must
be declined if the real purpose of the request made is
to punish the person requested for his political
opinion rather than for the crime committed by him.
Political offences exception holds that a person
cannot be extradited for an offence of political
character. The term ‗political offences‘ has not been
clearly defined in international law. What shall
construe as a political offence, usually, depends on
the domestic law of the requested State. It is
generally accepted that, acts of terrorism do not fall
under the exception of political offences, even if they
are committed with political motive.
Procedure
 Extradition is governed by international treaties, bilateral
or multilateral, enshrining the principle, nulla extradition
sine lege (no extradition without a law), this principle is in
fact a version of nullum crimine nullapena sine lege (no
crime and no penalty without a law).
 The State seeking the surrender of a person must present a
formal extradition request, which must identify the
wanted person and the offence imputed on him/her. The
requesting State is required to submit certain documents
in support of the request. The kind and format of the
evidence required, so also the standard of proof applied by
the requested State may differ significantly from one
country to another. The formal extradition request may be
preceded by a provisional arrest warrant
 Principle of comity of nations captivates that,
each Member State must comply with a request
from a court or prosecutor of another Member
State for the execution of an arrest warrant issued
by it against an individual accused of an offence
carrying a minimum sentence of 12 months of
imprisonment.
 The arrest warrant needs to contain only a
description of the circumstances albeit which the
offence was committed.
 The judicial authorities and not the executive, is
to decide upon the request of extradition.
Basic Principles
 Principle of relative Seriousness of the
offence - Extradition is usually permissible
only for relatively more serious offences,
and not for trivial misdemeanours or petty
offences. For instance, the extradition
treaty between US and India permits
extradition only for those offences which
are punishable with more than one year of
imprisonment (apart from the condition of
dual criminality, which will be dealt a little
later).
Principle of reciprocity
 Principle of Reciprocity in exchange
of fugitives between requesting and
requested State.
Principle of dual criminality
 Principle of Dual Criminality: This is the most important
principle governing Extradition Law. This requires that the
offence that the fugitive is alleged to have committed,
should be an offence both in the requesting as well as the
requested state (however, it may be noted that this refers
to the substance of the offence and not the nomenclature
given to it in a specific country, which may vary). For
instance : In Quattrocchi's case - the request for
extradition was declined as the CBI had not filed the
requisite documents making out a specific case for
extradition and had not satisfied the court as to the basic
requirement of 'dual criminality'. To satisfy oneself as to
the requirement of dual criminality, one has to examine
the treaty between the two countries and see if the
offence in question finds mention there.
Existence of prima facie case
 Existence of prima facie case against
the fugitive: This is a safety valve to
ensure, at-least on broad probabilities,
the existence of a triable case against
the fugitive. This is sought to be ensured
by a magisterial inquiry that is to
precede the actual surrender/extradition.
If the case lacks merit on the face of it,
extradition may be disallowed at the
very outset.
Principle of Proportionality
 Principle of proportionality between
offence and sentence: Requesting state
should respect the principle of proportionality
between offence and sentence and
punishment for that particular crime should not
be excessively harsh or inhuman, in which
case extradition request may be declined. The
possibility of a death sentence to the fugitive
by the requesting state usually leads to the
extradition request being turned down or
allowed only after an assurance from the
requesting state that death penalty will not be
carried out.
Fugitive seeking asylum from
political persecution
 Whether the fugitive is seeking asylum from
political persecution and trial for an offence of a
political character: This requires an enquiry into
whether the accused is likely to suffer political
persecution or death sentence in the requesting
country. In such cases extradition is disallowed. For
instance, in the Indian Context, the provision of
death penalty in India and alleged human rights
violations in prisons/police torture have proved to be
major hurdles in acceding extradition requests from
India to other countries, especially the UK with the
European Commission on Human Rights (ECHR)
taking a strict note of the same.
Possibility of fair trial
 Possibility of fair trial in requesting state, post
surrender - Before an extradition request is
processed it should be ensured that post-surrender
the fugitive will get a fair trial in the requesting
country. However, it may be noted that this entails
only a broad examination of judicial procedures in
the requesting state. This principle also needs to be
read subject to the principle of non-inquiry, which
stipulates that the judicial process in the requesting
country is not to be subjected to finicky evaluations
and fairness of judicial procedure in requesting
country is not to be normally questioned.
Possibility of a fair trial
 However, this is not an absolute
principle and the requested state may
question the procedure of the requesting
state if the same is prima facie contrary
to fundamental principles of justice and
there is a high risk of fugitive being
prejudiced by the process of extradition.
The apprehension of denial of fair trial
has to be substantiated with cogent
material.
Possibility of a fair trial
 In a case where a man chose to reside in
USA, received his education and worked
there, was not allowed to plead threat or
denial of fair trial in US in order to evade
extradition. In the context of extradition
from UK, issues such as human rights
violations in jails, minority rights, possible
political motivation, have weighed heavily
with UK authorities in not acceding to
extradition requests made by India.
Extradition offence
 Section 2(c) defines Extradition Offence as:-

 Offence provided in the extradition treaty with

the foreign states; (with respect to treaty
states)
 Offence punishable with imprisonment not
less than one year under India Law or law of a
foreign state. (non treaty states)
 Composite offence - offence committed
wholly, or in part, in India and Foreign State,
which would constitute an extradition offence
in India.
Who may be extradited?
 A fugitive criminal may be extradited.
 A fugitive criminal as per section 2 (f) is
a person who is accused or convicted of
an extradition offence within the
jurisdiction of a foreign state.