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Extradition[1]

Table of Contents

QUESTION BANK

What is extradition? Explain the requirements of the extradition process.
Discuss the concepts of ‘Extradition’ and ‘Asylum’.
What do you mean by ‘Extradition’ and ‘Asylum’? What are the forms of asylum?
What do you understand by the terms ‘Extradition’ and ‘Asylum’?
Distinguish between ‘Extradition’ and ‘Asylum’. Explain International Law concerning extradition.

Short Notes

Extradition.
Asylum.

I. Definition of the term ‘extradition’-

The term extradition means a ‘delivery of criminals’.

According to Edward Collins, “Extradition is the delivery of an accused or a convicted individual to the state on whose territory he is alleged to have committed or to have been convicted of a crime, by the state on whose territory the alleged criminal happens to be for the time being[2]”

According to Oppenheim, “Extradition is the delivery of an accused or a convicted individual to the state on whose territory he is alleged to have committed or to have been convicted of a crime, by the state on whose territory the alleged criminal happens to be for the time being”.

In other words, when a person who has committed an offence in one country escapes to another, then that other state returns the offender to the former, which is called extradition.

II. Object or Purposes of Extradition-

There are the following purposes of extradition. Viz.

1. Lack of jurisdiction-

It is very difficult for the state to prosecute and punish a criminal who has fled its territory. The difficulty may arise due to a lack of Jurisdiction and technicalities of prosecution. Bringing witnesses and evidence from other states is also very difficult. Therefore, it becomes necessary to hand over the criminal to the state from where he has fled by committing the crime.

2. To warn criminals-

Extradition warns criminals that they will not be spared by fleeing to another state to commit a crime.

3. No State wants to become a safe haven for international criminals-

If any state doesn’t want to extradite criminals, it will become a safe haven for criminals to flee that state after committing a crime. Such criminals are not worth paying for any state; they may also become harmful to such states.

4. Suppress crime-

Suppression of crime is the main purpose of extradition.

5. Reciprocity-

Extradition is mostly of a reciprocal nature. When one state extradites criminals to another, that other state also has to respond by extraditing criminals of that state into its territory.

6. Increases International cooperation-

Extradition increases International cooperation to suppress crimes.

7. Beneficial for both States-

Extradition is mutually beneficial for all states. It is beneficial even for the whole International community.

III. Legal basis of extradition-

There is no specific International Law on extradition. Therefore, it is necessary to study the legal basis of extradition as follows-

1. Treaties-

The basis of extradition is a treaty. Many states, such as the US, Belgium, and the Netherlands, do not extradite criminals if there is no mutual extradition treaty.

Even the General Assembly of the United Nations has provided a draft of an ‘extradition Treaty’ for the States entering such a treaty. Even in the absence of an extradition treaty, criminals are extradited on the basis of reciprocity between the states; for example, Abu Salem, the main accused of the Mumbai Bomb Blast case in 1993, was extradited by the Portugal government to India.

2. No extradition of political offenders-

In General, political offenders are not extradited. In a monarchy, political offenders were extradited. However, after the French Revolution and the trend of the establishment of democratic Government started, democratic States started to protect political offenders. We may say that today, non-extradition of political offenders is an exception to the general rule of extradition.

The Indian Extradition Act of 1962 also provides for the non-extradition of political offenders. The reasons behind this are to protect humanity, democratic movements, etc. Therefore, India has given asylum to the Dalai Lama, the political leader of Tibet, against China.

3. Act should be a crime in both States-

An act for which an offender is requested to be extradited must be an offence prohibited in both States. The State will not extradite a person if the act for which his custody is sought is not an offence in its state.

The Indian Extradition Act 1962 provides a list of extraditable offences. A person can be extradited only for those offences and not for any other offence.

4. Trial for extradited offence only-

The offender can only be tried for that offence for which he has been extradited and not for any other offence. Thus, it casts a duty on requesting the State not to try the offender for any other offence than for which he has been extradited.

5. Prima Facie Evidence-

There should be prima facie evidence of the guilt of an accused to be extradited. Without having prima facie evidence, the offender cannot be extradited.

7 of the Indian Extradition Act also lays prima facie evidence as a requirement for extradition.

6. Time-barred crimes-

According to Section 31 (B) of the Indian Extradition Act, the extradition may be refused if prosecution is barred by a limitation period or lapse of time, as per the law of the requesting state.

7. Extradition of nationals-

Some states include the Netherlands, Belgium, Italy, Germany, France, Switzerland, etc. Do not extradite their nationals to other states for trial for the offence committed in that state. They prefer to try such offenders in their state.

However, states like Great Britain, the United States, and India also extradite their own nationals. It depends upon the terms and conditions of the Treaty. The treaties between the US and India prescribe extraditing their nationals to each other.

8. Military offenders-

Extradition treaties generally exclude military offenders. It is the general practice that military offenders are not extradited. The Model Treaty on Extradition adopted by the United Nations also does not favour extraditing military offenders.

9. Extradition of economic offenders-

Extradition of economic offenders has not been generally practised by the states. Economic offenders are those who commit offences relating to revenue, taxes, excise, customs, etc. Presently, Vijay Mallya, Mehul Choksi, Nirav Modi, etc., are some of the offenders who have fled to other states by committing economic offences in India. The Indian government is trying to extradite them to India; Vijay Mallya has already ordered to be extradited. However, it largely depends upon the terms and conditions of the treaty.

10. Extradition of foreign nationals for the crimes committed in foreign countries-

Extradition of foreigners committing crimes in other states can occur only when the extradition treaty includes a provision regarding the extradition of foreigners.

III. Law of extradition in India-

In India, Extradition Act. 1962, is in existence. However, before that Act, there was the Extradition Act of 1902. India has considered itself to be bound by extradition treaties entered into by the British during the British period.

Short Notes-

Asylum[3]–

SYNOPSIS

Meaning and definition of Asylum-
According to Strake-
As per Art. 1 of the Institute of International law-
Kinds of Asylum-

(1) Territorial or Integral Asylum-

(2). Extra Territorial Asylum-

(a) Asylum in Foreign Legation-

(b) Asylum in consulate-

(d) Asylum in merchant vessel-

III. Difference between “Extradition’ and ‘Asylum’-

As to nature-
Requirement of crime-
Place of granting-
Requirement of treaty-
Relations between States

I. Meaning and definition of Asylum-

The term ‘Asylum’ is derived from Latin. The term Asylum means ‘a sanctuary or place of refuge. If a person commits a crime and flees to another state to take shelter in that state, if that state gives shelter, it is called an ‘Asylum’.

1. According to Strake-

Asylum involves two important elements: (i) a shelter, which is more than a temporary refuge, and (ii) a degree of active protection on the part of the authorities that have control over the asylum’s territory.

2. As per Art. 1 of the Institute of International Law-

“Asylum is the protection which a state grants on its territory or in some other place under the control of certain of its organs, to a person who is coming to seek”.

In fact, the concept of extradition contradicts the concept of Asylum.

II. Kinds of Asylum-

There are the following kinds of Asylums-

(1) Territorial or Integral Asylum-

When Asylum is granted by the state on its territory, it is called a Territorial or Integral Asylum. A state has the sovereign right to admit or expel any person found in its territory. Granting or refusing Asylum depends upon the discretion of a state.

Asylum may be granted to political or religious refugees, criminal offenders, military deserters, kings or heads of state and their families, etc.

Art. 1 of the Convention of Territorial Asylum of 1945 states, “Every state has the right in the series of its sovereignty to admit into the territory such persons as it deems advisable”.

Art. 14 (1) of the Convention on the Universal Declaration of Human Rights 1948 recognised the “right of everyone to seek and to enjoy in other countries Asylum from prosecution”.

Art. 14 (2) lays the limit on the right of Asylum. It provides that “the right to seek Asylum may not be involved in the cases of prosecution genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.

In India, such type of Asylum was given to (i) Bangladeshi Refugees in 1971, (ii) the Dalai Lama and his Tibetan followers in 1959, and (iii) to Srilanka’s Tamil Refugees.

(2). Extra Territorial Asylum-

When Asylum is granted by a state at a place outside its territory, it is called ‘extra-territorial asylum’. This type of asylum is given as follows-

(a) Asylum in Foreign Legation[4]–

When Asylum is granted by a state within its embassy premises in a foreign country, it is known as Asylum in legation or diplomatic Asylum. The embassy premises are considered to be outside the jurisdiction of the territorial state, and therefore, they are inviolable. The head of the mission may grant Asylum to a person on the premises.

Diplomatic Asylum is not a general principle of International Law; therefore, a state is not bound to give Asylum in its embassy.

In fact, the grant of Asylum in legation is a question that could not be settled in International law because states’ practices are not uniform. Political considerations play an important role in granting Asylum.

However, India, by issuing a circular on 30 December 1967, made its position clear to all foreign diplomatic missions in India that the Government of India does not recognise the right of such missions to give Asylum to any person or persons within their premises.

The Indian delegate, Dr Sayid Mohamad, further clarified the above view of India in 1975. Such Asylum involves a derogation from the sovereignty of the territorial state and an intervention in matters that are exclusively within that state’s competence. He further stated that the diplomatic mission is accorded privileges and immunities for functional reasons; hence, they should not be measured.

(b) Asylum in a consulate[5]–

Rules regarding asylum in consulates are similar to those of asylum on legation premises.

(c) Asylum on warships-

Asylum on a warship may be granted in the same way as in the case of litigation and also subject to the operation of the same conditions. It is because the men and worship are subjects of the state of which flag they flay; other states cannot exercise jurisdiction over them.

(d) Asylum in merchant’s vessel[6]–

Merchant vessels are not exempt from local jurisdiction, and therefore, Asylum cannot be granted to an offender on a merchant vessel.

III. Difference between “Extradition’ and ‘Asylum’-

The difference between extraction and Asylum is as follows-

1. As to nature-

Extradition is the surrender by one state to another for trial and punishment of a person accused or convicted of an offence within the latter’s jurisdiction. At the same time, an asylum is a place of refuge and protection where security is provided.

2. Requirement of crime-

In extradition, it is essential that the person demanded is alleged to have committed a crime, but in Asylum, there is no such condition.

3. Place of granting-

For extradition, the person should be in the territory of another country, but Asylum may be granted in the country itself.

4. Requirement of the treaty-

Extradition requires a treaty, but it is unnecessary for the sake of asylum.

5. Relations between States-

An extradition is an act of cooperation between one state and another, while due to asylum, relations between states get strained. The relations between India and Malaysia are strained due to the latter’s giving Asylum to Jakir Naik, a fugitive from India.

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[1] गुन्हेगार हस्तांतरण

[2] आपले भुमिवर मिळुन आलेलया आरोपीचे अथवा गुन्हेगाराचे, त्या राष्ट्राकडुन, ज्याचे भुमिवर त्याने गुन्हा केला आहे किंवा त्यास षिक्षा श्रााली आहे अषा राश्टधस हस्तांतरण म्हणजेच गुन्हेगार हस्तांतरण होय.

[3] आश्रय / षरण देने

[4] परदेशात पाठविलेलया प्रतिनिधिची अथवा प्रतिनिधि मंडळाची निवायी अथवा कार्याल्ययीन जागा / दुतावास

[5] वानिज्य दुतावास

[6] व्यापारी जहाज