Trina Malone, Michael Waibel
- Extradition — Jurisdiction — Death penalty — Fair hearing and fair trial — Freedom from arbitrary detention — Individual rights
Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.
1. Extradition concerns the official surrender by a state (the requested state) of an alleged offender or convicted criminal to another state (the requesting state) for the purpose of prosecuting or punishing that individual in relation to crimes within the jurisdiction of the requesting state. Extradition is one of a number of distinct methods by which a state may remove an individual from its territory: Other methods including expulsion and deportation (Plachta 108). States are under no obligation under general international law to extradite alleged offenders to another country. Obligations to extradite, subject to important exceptions, exist only pursuant to hundreds of extradition treaties currently in force (Stein). In some circumstances, however, a state that refuses to extradite an alleged offender may be under an international obligation to prosecute them for the crime for which they are wanted (International Law Commission).
2. Whether a state can extradite an individual in a given case is ordinarily a matter for national constitutional law in the first instance. Some of the most important individual rights and safeguards applicable in extradition proceedings find expression in the constitutions of states, including those that may prevent an extradition from being carried out, or which require the authorities of the requested state to seek and obtain certain assurances from the requesting state before any extradition can take place. A survey of national constitutions reveals that the most prevalent constitutional protections relate to the decision making process in the requested state; the risk of ill treatment or an unfair trial in the requesting state; conduct for which an alleged offender may not be extradited; and the protection of nationals from extradition in any or certain circumstances. Such constitutional safeguards may also have a role to play where a state pursues an alternative to extradition as a means of facilitating the prosecution of an individual by a foreign state or by an international criminal court or tribunal.
3. Although it is outside the scope of this entry, the constitutions of many requesting states will provide the alleged offender with additional rights and safeguards once the alleged offender has been returned to the requesting state for prosecution or punishment (see, for instance, cases where an alleged offender is illegally returned to a state for prosecution: Klein). The constitutional rights and safeguards discussed in this entry are commonly given expression elsewhere, including in domestic statutes and policies, international treaties and, in some instances, under customary international law (UNHCR (2008)). Finally, whether such rights and safeguards are upheld in practice is a separate, and important, question, albeit one that is not considered in this entry (but see, Chilton and Versteeg; Law and Versteeg).
B. Historical Evolution
4. The practice of one sovereign handing over those accused of committing a crime to another can be traced back to antiquity (Bassiouni 2). One of the earliest known treaties, concluded between the Egyptian Pharaoh Ramses II and Hattusili III around 1259 BC, made specific provision for the return of criminals (Bassiouni 5). There are also early examples in which protection of individuals was favoured over their return for punishment (Orchard 45–49); ancient Greek city states, for instance, often granted a right of asylum to those sought by other Greek city states on account of their political views, which, once granted, acted as a defence to any extradition request made by another city state (Orchard 44).
5. The late 18th and 19th centuries marked the development of modern extradition law. It was during this period that states began to conclude treaties with each other that dealt with the return of common criminals, rather than political dissidents, which had hitherto been the norm (Blakesley 50–51). This was also an era that saw the rise of new written constitutions that safeguarded basic rights (Borgeaud 613), including specific rights for individuals facing extradition. In France and Haiti, for instance, new constitutional provisions protected political dissidents (Constitutional Act preceded by the Declaration of the Rights of Man and of the Citizen: 24 June 1793, Art. 120 (Fr): Constitution of the Empire: 20 September 1848, Art. 10 (Haiti)); Switzerland’s first federal constitution protected nationals against expulsion (Swiss Federal Constitution: 12 September 1848, Art. 45 (Switz)); and the original version of the Netherland’s current constitution provided that foreign persons may only be extradited in accordance with procedures and conditions laid down in law (Constitution of the Netherlands: 25 October 1848, Art. 3 (Neth)). The first domestic statutes governing extradition procedures were also introduced during this period, many of which contained additional procedural and substantive safeguards (see those included in Burdick’s study, 356–434).
6. Most of the major principles of contemporary extradition law had crystalized by the close of the 19th century, including those principles pertaining to the protection of alleged offenders (Stein). In the second half of the 20th century, the creation and growth of a new body of human rights law at the international, regional and domestic level gave rise to new substantive and procedural protections for alleged offenders (Bassiouni 6; Lagodny and Reisner 237). Some of these human rights, such as the right not to be extradited in death penalty cases, have found their way into national constitutions (see, for instance, the current Constitution of Finland: 11 June 1999 (as Amended to 22 February 2011), s. 9 (Fin)). At the same time, Bassiouni argues that the increase in different types and forms of international criminal activity has strengthened the desire of states to cooperate with one another in the suppression of crime (Bassiouni 52). This has, he suggests, led to a slight reversion back to times where the interests of the state outweigh those of individuals (Bassiouni 52).
C. Comparative Description of Constitutional Safeguards
1. Safeguards Relating to the Decision-Making Process in the Requested State
7. Most international extradition treaties provide that a requested state shall deal with the request for extradition pursuant to procedures provided by its own law, and shall promptly communicate its decision to the requesting state (UNGA Res 45/116 ‘Model Treaty on Extradition’ (14 December 1990) Annex Art. 10(1)). In most states, it is the judiciary who determine whether an alleged offender is extraditable, while the executive makes the final decision to surrender them (Shea 88). The domestic statutes of states ordinarily outline in detail the procedure to be followed and the substantive rights of the alleged offender during the decision-making process. National constitutional law often establishes basic requirements that must be followed, and fundamental individual rights that must be respected, during that process.
8. A common constitutional requirement is that the extradition of an alleged offender shall be authorized and governed by law. Express provisions to this effect appear frequently in civil and mixed law systems (eg Constitution of the Republic of El Salvador: 15 December 1983 (as Amended to 27 May 2009) Art. 28 (El Sal); Constitution of the Hashemite Kingdom of Jordan: 1 January 1952 (as Amended to 30 September 2011) Art. 21(2) (Jordan); Constitution of the State of Papua New Guinea: 16 September 1975 (as Amended to 2002) Art. 52(2) (Papua NG)). Such an express requirement is also occasionally found in the constitutions of common law systems (eg Jamaica (Constitution) Order (SI 1962/1550): 23 July 1962 (as Amended to 1999) Art. 15 (UK Jam)). More specific provisions are found in some constitutions in mixed and civil law systems: for instance, some provide that extradition may only be carried out pursuant to an international treaty and/or domestic law (eg Constitution of the Islamic Republic of Afghanistan: 3 January 2004, Art. 28 (Afg); Constitution of the Dominican Republic: 26 January 2010, Art. 46 (Dom Rep); Constitution of the Republic of Kazakhstan: 30 August 1995 (as Amended to 21 May 2007) Art. 11 (Kaz)). A less common requirement is the need for a judicial decision or ruling by a competent body prior to extradition taking place (eg Constitution of the Republic of Albania: 21 October 1998 (as Amended to 18 September 2012) Art. 39(1) (Alb); Constitution of the Democratic Republic of Timor-Leste: 20 May 2002, Art. 35(1) (Timor-Leste); Constitution of the Portuguese Republic (Sixth Revision): 2 April 1976 (as Amended to 24 July 2004) Art. 33(7) (Port)). In the United Kingdom and Australia, both common law systems, the executive may not surrender a person for extradition absent statutory authority (Minister for Home Affairs of the Commonwealth v Zentai (2012) (Austl)).
9. There are also a few constitutions that require that the extradition process to comply with elements of procedural fairness. For instance, the constitution of Togo provides an alleged offender with a right to defence against extradition charges (Constitution of the Togolese Republic: 27 September 1992 (as Amended to 31 December 2002) Art. 23 (Togo)); in cases concerning certain serious crimes, the constitution of Venezuela requires extradition proceedings to be public, oral and expeditious, with respect for due process (Constitution of the Bolivarian Republic of Venezuela: 15 December 1999, Art. 271 (Venez)); and the constitution of Georgia provides alleged offenders with an explicit right of appeal against an extradition decision (Constitution of Georgia: 24 August 1995 (as Amended to 15 October 2010) Art. 13(4) (Geor)).
10. Many more constitutions, in civil, mixed and common law systems, contain general rights that are applicable wherever an individual is deprived of their liberty and/or subject to legal proceedings or an administrative decision. These rights would seem to apply, prima facie, to alleged offenders detained and subjected to extradition proceedings. Such rights include, for instance, the right to be released after an initial period of detention, unless the judiciary authorizes detention for a longer period (eg Constitution of the Republic of Armenia: 5 July 1995 (as Amended to 27 November 2005) Art. 16 (Arm); Kiribati Independence Order (SI 1979/719): 26 June 1979 (as Amended to 13 February 1995) Art. 5 (UK); Constitution of the Republic of Uganda: 22 September 1995 (as Amended to 2005) Art. 23 (Uganda)).
11. On the other hand, some basic constitutional protections that are applicable to those who stand accused of domestic crimes are not available to those facing extradition proceedings. In the United States (US), for instance, courts have found that certain constitutional due process and fair hearing requirements are applicable in extradition proceedings, whereas others are not (Merino v United States Marshal (1963) (US); Martin v Warden (1993) (US)). Nor do those facing extradition have the same constitutional right to bail as those accused of a domestic crime (cf Parretti v United States (1997) (US): see Bassiouni 857).
2. Trial, Punishment and Treatment in the Requesting State
12. International, regional and domestic law place restraints on the ability of a state to extradite an alleged offender where there is a risk that he or she will be subjected to certain kinds of physical harm in the requesting state or where a miscarriage of justice may occur (eg Duffy (2005) 527–541; UNHCR (2003) and (2008)). This includes situations in which there is a risk that the death penalty may be imposed; where the alleged offender may be subjected to torture, cruel, inhuman or degrading treatment or punishment; where the alleged offender may not receive a fair trial; and where there are grounds for believing that the extradition request has been made for the purpose of prosecuting or punishing the alleged offender on account of their race, religion, nationality, ethnic origin, political opinion, sex or status (see UN Model Treaty on Extradition, Art. 3). Again, constitutional law has a role to play in many states by prohibiting the extradition of alleged offenders in such circumstances.
(a) Death Penalty
13. States increasingly recognize that capital punishment is incompatible with contemporary values and international human rights norms. This global trend is reflected in the growing reluctance of states to extradite alleged offenders to countries where the death penalty may be imposed (Schabas 581–582). Extradition in these circumstances has been found to be a breach of certain fundamental human rights, either on account of the nature of the punishment itself (eg Judge v Canada, (2003) (UN Human Rights Committee)) or in virtue of what is known as the ‘death row phenomenon’, being the emotional and psychological trauma of waiting for execution (eg Soering v The United Kingdom (1989) (ECtHR) 111; Pratt v The Attorney General for Jamaica (1993) (UK)).
14. The constitutions of a number of civil and mixed legal systems explicitly prohibit extradition where there is a risk of the death penalty being imposed (eg Constitution of the Republic of Hungary: 18 April 2011 (as Amended to 26 September 2013) Art. XIV(2) (Hung); Constitution of the Republic of Angola: 21 January 2010, Art. 70(2) (Angl); Constitution of the Democratic Republic of São Tomé and Príncipe (Law No. 7/90): 5 November 1975 (as Amended to 29 January 2003) Art. 41(2) (São Tomé & Príncipe)). Others, such as the Seychelles, make extradition conditional upon assurances that a death sentence either will not be imposed or, if imposed, that it will not be carried out (Constitution of the Republic of Seychelles (SI 38 of 1993): 21 June 1993 (as Amended to 12 July 2011) Art. 25(4) (Sey)). In Canada, a predominately common law system, the Supreme Court held in United States v Burns (2001) (Can) that in the absence of exceptional circumstances, assurances by requesting states in death penalty cases are always constitutionally required to prevent any infringement on the right to life, liberty and security (right to security) of the person guaranteed under Section 7 of the Canadian Charter of Rights and Freedoms 1982, which forms part of Canada’s Constitution (Constitution of Canada: the Constitution Acts 1867 to 1982 (Unofficial consolidation current as of September 2008) (UK Can) 1867 c.3 (30 & 31 Victoria)). In South Africa, a mixed legal system, the Constitutional Court of South Africa held in the landmark case of Mohamed (2001) (S Afr) that its Constitution requires that the government refuse an extradition request when the requesting state is unprepared or unwilling to give the requisite assurance that the death penalty will not be imposed or carried out (Constitution of the Republic of South Africa: 11 October 1996, Chapter 2: Bill of Rights (S Afr); Mohamed and Another v President of the Republic of South Africa and Others (2001) 49 (S Afr). See also, Minister of Home Affairs and Others v Tsebe & Others (2012) (S Afr)).
15. Domestic courts regularly evaluate the adequacy of such assurances from requesting states (eg Fidan 100 ILR 662 (1997) (Fr); Dharmajarah v Ministère Public Fédéral (1981) (Switz); Short v The Kingdom of the Netherlands (1990) (Neth)), as do regional and international human rights bodies (eg Einhorn v France (2001) (ECtHR)). The Constitutional Court of Italy (Corte costituzionale della Repubblica Italiana) has taken a particularly firm stance against extradition in death penalty cases. In Venezia v Ministero di Grazia E Giustizia (1996) (It), the Court held that the extradition of an alleged offender to the US would violate Articles 2 (guaranteeing inviolable rights) and 27 (the right to life) of the Italian Constitution, irrespective of any assurances given by the US that the death penalty would not be imposed (Constitution of the Italian Republic: 22 December 1947 (as Amended to 20 April 2012) (It)).
(b) Torture, Cruel, Inhuman and Degrading Treatment
16. Extradition to a state where a person may face torture, cruel or inhuman treatment or punishment is prohibited explicitly by some constitutions (eg Constitution of the Republic of Hungary: 18 April 2011 (as Amended to 26 September 2013) Art. XIV(2) (Hung); Constitution of the Republic of Cape Verde: 25 September 1992, Art. 35(3) (Cape Verde)), and by implication from general rights provisions in other constitutions (eg the interpretation of general rights provisions in the Canadian Charter of Rights and Freedoms 1982 (Can), as discussed in Suresh v Canada (2002) (Can)). As in death penalty cases, diplomatic assurances may also play a role where there is a risk of other kinds of torture, cruel, inhuman or degrading treatment or punishment, such as where there is a risk of an alleged offender being mistreated while in prison (eg UNHCR 2006; Hayle Abdi Badre v Court of Florence, Italy (2014) (UK)). However, as the Supreme Court of Canada (Cour suprême du Canada) has warned, ‘a distinction may be drawn between assurances given by a state that it will not apply the death penalty (through a legal process) and assurances by a state that it will not resort to torture (an illegal process). We would signal the difficulty in relying too heavily on assurances by a state that it will refrain from torture in the future when it has engaged in illegal torture … in the past’ (Suresh v Canada (2002) (Can) para. 124).
(c) Persecution or Other Violations of Basic Rights
17. The inability of requesting states to guarantee certain other basic human rights is a further constitutional barrier to extradition in several states. Some constitutional provisions specifically prohibit the extradition of an alleged offender where their basic human rights would be jeopardized (eg Constitution of the Republic of Serbia: 30 September 2006, Art. 39 (Serb) and, applying only to citizens, Constitution of the Republic of Latvia: 15 February 1922 (as Amended to 15 November 2005) Art. 98 (Lat); Constitution of the Republic of Finland: 11 June 1999 (as Amended to 2007) s. 9 (Fin); Constitution of the Republic of Montenegro: 19 October 2007, Art. 12 (Montenegro)).
18. Other constitutional provisions in mixed and civil law systems explicitly prohibit the extradition of refugees (eg Federal Constitution of the Swiss Confederation: 18 April 1999 (as Amended to 15 March 2012) Art. 25(2) (Switz)), or political refugees in particular (eg Constitution of the Hashemite Kingdom of Jordan: 1 January 1952 (as Amended to 30 September 2011) Art. 21(1) (Jordan); Constitution of the State of Qatar: 29 April 2003, Art. 58 (Qatar); Constitution of the Republic of Chad: 14 April 1996 (as Amended to 3 July 2013) Art. 46 (Chad); Constitution of the People’s Democratic Republic of Algeria: 28 November 1996 (as Amended to 15 November 2008) Art. 69 (Alg)). In a similar vein, the constitutions of Cyprus and Serbia prohibit extradition where it appears that the extradition request was made with a view to prosecute or punish an individual on grounds of race, religion, nationality, ethnic origin, political belief or legitimate claims under international law to collective or personal rights (Constitution of the Republic of Cyprus: 16 August 1960 (as Amended to January 2006) Art. 11(2) (Cyprus); Constitution of the Republic of Serbia: 30 September 2006, Art. 39 (Serb)).
(d) Miscarriage of Justice
19. There are also constitutions that prevent extradition where fair trial and rule of law guarantees are absent. The constitution of Portugal, for instance, conditions extradition upon guarantees from the requesting state of a just and fair trial (Constitution of the Portuguese Republic (Sixth Revision): 2 April 1976 (as Amended to 24 July 2004) Art. 33(3) (Port); while Germany’s constitution allows a regulation to be enacted providing for the extradition of nationals to a member state of the European Union or to an international court of law so long as the fundamental principles of a state governed by law are observed (Basic Law of the Federal Republic of Germany: 23 May 1949 (as Amended to 23 December 2014) Art. 16(2) (Ger); see also, the constitutional case challenging surrender where there has been a trial in absentia: Decision 2 BvR 2735/14 (2015) (Ger)). Although courts in the US do not typically inquire into the standard of criminal justice that might await an alleged offender, they may be willing to do so, where procedures or punishment adopted by the requesting state are antipathetic to the court’s sense of decency (Gallina v Fraser (1960) (US); see also, Prasoprat v Benov (2003) (US), and the discussion in Parry).
(e) Dilution of the Rule of Non-Inquiry
20. The trend towards protecting alleged offenders from certain harm in the requesting state has diluted the rule of non-inquiry, which is followed in most legal systems (also referred to as the principle of confidence; Bassiouni 645). Applied strictly, the rule requires an extradition court to refrain from any inquiry into the standard of criminal justice in the requesting state, including the procedures and treatment to which the alleged offender may be exposed. In the US, for instance, the principle has influenced the Supreme Court’s interpretation of certain amendment rights under the constitution that might otherwise prevent extradition in certain cases (eg Neely v Henkel (1901) (US)). Even in the US, however, where the courts have endorsed the rule on countless occasions, there are signs that the courts may be willing to relax their otherwise restrictive approach in certain cases (Bassiouni 634–642).
3. Protection Based on the Conduct of the Alleged Offender
21. States have long been reluctant to extradite individuals wanted in connection with political and military offences or for conduct that is not deemed to be criminal under its own laws (ie the ‘double criminality’ requirement) (Burdick 81–119). The principle of double criminality, along with political and military offence exceptions, is found in virtually all extradition treaties (see, for example, UN Model Treaty on Extradition Arts 2(1), 3(a) and (c)). Curiously, it appears that only the double criminality requirement and political offence exception have been incorporated into national constitutions.
(a) Double Criminality
22. The principle of double criminality (also referred to as ‘dual criminality’) requires that the conduct that constitutes the offence for which extradition is sought be an offence in both the requested and requesting state. This requirement features in the constitutions of a number of civil law systems (eg Constitution of Georgia: 24 August 1995 (as Amended to 15 October 2010) Art. 47(3) (Geor); Constitution of the Republic of Azerbaijan: 12 November 1995 (as Amended to 18 March 2009) Art. 70 (Azer); Constitution of the Republic of Colombia: 5 July 1991 (as Amended to 4 November 2011) Art. 35 (Colom)). The principle is not, however, universally applied. Indeed, the European Union (EU) has recently abolished the double criminality requirement for certain offences where a request for the surrender of an alleged offender is made between EU Member States under the European Arrest Warrant System, which, as discussed elsewhere in this entry, has led to a number of domestic constitutional challenges. The double criminality requirement persists in respect of extradition to and from non-EU member states in Europe.
23. In those circumstances where the principle continues to have force, it may be expressed and interpreted more or less liberally. For instance, there is variation over the degree of equivalence required between the offence charged and the counterpart crime in the requesting state. Domestic courts in Europe have typically taken a liberal approach to this issue by ignoring how crimes are labelled and focusing instead on whether the underlying conduct constitutes a crime in both legal systems (Bassiouni 505). A similar approach is also evident in common law jurisdictions, although the principle is not usually given a constitutional status in these systems. For instance, in Canada, where the principle is enshrined in statute (Extradition Act 1999, s. 3(1)(b) (Can)), the courts have been flexible in their interpretation of extradition treaties, emphasising that terminology need not be identical if the conduct amounts to an offence in both states (see Cotroni v Attorney General of Canada (1976) (Can). See also Dutton v O’Shane 58 (2003) (Austl)).
(b) Political Offences
24. A considerable number of constitutions in civil law systems disallow extradition for political reasons. Some simply prohibit extradition for political crimes (eg Constitution of the Republic of Malta: 2 September 1964 (as Amended to 2007) Art. 43 (Malta); Constitution of the Republic of Colombia: 5 July 1991 (as Amended to 4 November 2011) Art. 35 (Colom); Constitution of the Italian Republic: 22 December 1947 (as Amended to 20 April 2012) Arts 10 and 26 (It)); while others extend this prohibition to any connected common crimes (eg Constitution of the Republic of El Salvador: 15 December 1983 (as Amended to 27 May 2009) Art. 28 (El Sal); Political Constitution of the Republic of Peru: 31 October 1993 (as Amended to 5 April 2005) Art. 37 (Peru); Constitution of the Republic of Honduras: 11 January 1982 (as Amended to 30 January 1991) Art. 101 (Hond)). Others still refuse extradition requests made with political motives (Constitution of the Republic of Angola: 21 January 2010, Art. 70 (Angl)) or on political grounds (Constitution of the Republic of Timor-Leste: 20 May 2002, Art. 35(2) (Timor-Leste)). Some constitutions additionally specify that there may be no extradition for religious reasons (Constitution of the Republic of Cape Verde: 25 September 1992, Art. 35(2) (Cape Verde)). Occasionally, constitutions are more particular in their wording of such provisions: Greece’s constitution prohibits the extradition of non-nationals prosecuted for their action as freedom-fighters (Constitution of the Hellenic Republic: 7 June 1975 (as Amended to 27 May 2008) Art. 5(2) (Greece)); and Spain’s constitution provides that acts of terrorism do not constitute political offences (Constitution of the Kingdom of Spain: 6 December 1978 (as Amended to 27 September 2011) Art. 13(3) (Spain)).
25. In some states, the constitutional prohibition on extradition for political offences is limited to non-citizens. Some states appear to make this distinction because extradition of citizens is explicitly prohibited (eg Constitution of the Federative Republic of Brazil: 5 October 1988 (as Amended to 15 September 2015) Art. 5(LI)–(LII) (Braz), applying to non-naturalized Brazilians), although this is not always the case (eg Constitution of the Hellenic Republic: 7 June 1975 (as Amended to 27 May 2008) Art. 5(2) (Greece), see the Greek Supreme Court’s interpretation of this provision, Decision No. 591/2005 (Greece)). Most constitutions that prohibit extradition for political offences do so for both citizens and noncitizens (eg Political Constitution of the United Mexican States: 5 February 1917 (as Amended to 29 July 2010) Art. 15 (Mex); Constitution of the Republic of Timor-Leste: 20 May 2002, Art. 35(2) (Timor-Leste); Constitution of the Russian Federation: 12 December 1993 (as Amended 21 July 2014) Art. 63 (Russ)).
4. Non-Extradition of Nationals
26. Many states have constitutional or statutory laws in place that prevent the extradition of citizens/nationals in all or, more often, specified circumstances (herein referred to simply as ‘nationals’: see Edwards and Waas 13–14 for a discussion of the distinction). Provisions that expressly prohibit or place restrictions on the extradition of nationals appear in around a quarter of the domestic constitutions currently in force around the world and in the statutory laws of more than 30 states (Library of Congress Report; International Committee of the Red Cross). Whether such provisions are effective in the face of a countervailing treaty obligation to extradite depends on the hierarchy that exists between international and domestic law in the state in question, but in any case, most extradition treaties either list nationality as a mandatory or discretionary ground for states parties to refuse an extradition request (UN Model Treaty on Extradition, Art. 4(a); Bapuly 22–26). For a number of historical and pragmatic reasons, it is mostly states with civil law systems that have laws in place that prohibit or place restrictions on the extradition of nationals (Plachta 94–6; Burdick 123; Shearer 94–131).
27. A small number of civil law systems have constitutions that expressly prohibit the extradition of their own nationals under any circumstances (eg Constitution of the Republic of Moldova: 29 July 1994 (as Amended to 25 July 2003) Art. 18(2) (Mold); Constitution of the United Arab Emirates: 18 July 1971 (as Amended to 2004) Art. 38 (UAE); Constitution of the Republic of Rwanda: 26 May 2003 (as Amended to 17 June 2010) Art. 25 (Rwanda)).
28. It is more common for state constitutions to expressly prohibit the extradition of nationals in certain specified circumstances. For instance, Switzerland’s constitution provides that a Swiss national may only be extradited to a foreign country with their consent (Federal Constitution of the Swiss Confederation: 18 April 1999 (as Amended to 15 March 2012) Art. 25(1) (Switz)). Other constitutions specify that a national may be extradited to another state for certain specified crimes. An example is the constitution of Burundi, which allows for the extradition of nationals for the prosecution by an international criminal jurisdiction for the crime of genocide, a war crime or other crimes against humanity (Constitution of the Republic of Burundi: 18 March 2005, Art. 50 (Burundi)). Still other constitutions expressly allow for the extradition of a national provided it is done pursuant to an international agreement and/or on a reciprocal basis (eg Constitution of Romania: 21 November 1991 (as Amended to 29 October 2003) Art. 19(1)–(2) (Rom); Constitution of the Islamic Republic of Afghanistan: 3 January 2004, Art. 28 (Afg)). In addition, a small number of constitutions expressly provide that a national may only be extradited to a requesting state where the rule of law or certain human rights are observed (Constitution of the Republic of Latvia: 15 February 1922 (as Amended to 15 November 2005) Art. 98 (Lat); Constitution of the Portuguese Republic (Sixth Revision): 2 April 1976 (as Amended to 24 July 2004) Art. 33(3) (Port)).
29. Although there do not appear to be any equivalent, express prohibitions or restrictions on the extradition of nationals in the constitutions of common law legal systems, there are examples of constitutional cases where it has been argued that an implicit prohibition exists. For instance, in United States v Cotroni (1989) (Can), the Supreme Court of Canada rejected the proposition that Section 6(1) of the Charter, which provides that citizens have a right to reside in Canada, prevented the Government of Canada from extraditing a national where it was arguably able to prosecute that citizen at home for the extraditable act (Canadian Charter of Rights and Freedoms 1982, s. 6 (Can); see also, United States v Burns (2001) (Can)). Another example is a recent constitutional challenge brought in the Republic of Cyprus, a state that has a predominately common law legal system. There it was successfully argued that Art. 11(2) of the Constitution, which specifies the grounds on which a person may be deprived of their liberty, implicitly prohibited the surrender of nationals under the European Arrest Warrant system because no provision was made under Art. 11(2) for their arrest or detention prior to surrender (Supreme Court Judgment of 7 November 2005 (Cyprus); Constitution of the Republic of Cyprus: 16 August 1960, Art. 11(2) (Cyprus); Tsadiras). The Constitution of the Republic of Cyprus has since been amended (see the Fifth Amendment of the Constitution Law of 2006: January 2006 (Cyprus)).
30. Determining whether a particular individual is entitled to protection on the ground of nationality is not always straightforward (Bassiouni 748): nationality may be difficult to determine or an individual may be a dual-national or have committed the crime prior to becoming a national (eg Düker 1167–1170; Bassiouni 748; Shearer 104–6; In re Del Porto (Switz)). A state may also seek to strip an individual of their nationality with a view to deporting or extraditing them at a later date (see, for instance, Linnas v Immigration and Naturalization Service (1986) (US), and the discussion on disguised extradition elsewhere in this entry).
31. States that refuse to extradite nationals will often assert their own jurisdiction and prosecute their national at home for the crimes for which they are wanted abroad (Mitchell, Chapter 1, para. 11; Sadoff 371–86; Shearer 97. See also the discussion of alternatives to extradition elsewhere in this entry).
5. Alternatives to Extradition
32. Extradition is the primary, but by no means the only method used by states to secure the return of an individual to another state to face prosecution or punishment for crimes that fall within the jurisdiction of the latter state. In some cases, states may pursue legal or extra-legal alternatives to extradition, either because extradition is unavailable as an option or because another method of bringing about the return of the individual is less cumbersome (Sadoff Part V). Alternatively, a state may surrender an individual to an international criminal court or tribunal or prosecute them at home for crimes committed abroad. As discussed herein, certain constitutional safeguards will still apply where a state pursues an alternative to extradition that involves the return or surrender of an individual to a foreign state or international criminal court or tribunal.
(a) Surrender under the European Arrest Warrant System
33. The Council of the European Union introduced a new system of cooperation in criminal matters between EU Member States on 13 June 2002 with the adoption of the Framework Decision on the European Arrest Warrant and the Surrender Procedures Between Member States (2002/584/JHA) (Framework Decision). The Framework Decision entered into force on 1 January 2004 and was amended on 26 February 2009 (Council Framework Decision 2009/299/JHA). The European Arrest Warrant (EAW) system is intended to replace, for EU Member States, the formal system of intra-European extradition established by the European Convention on Extradition (done 13 December 1957, entered into force 18 April 1960), as amended by two protocols and supplemented by additional conventions. The European Convention continues to govern certain extradition requests, having been ratified not only by all EU Member States, but also by all other Members of the Council of Europe, along with Israel and South Africa (Klimek 38).
34. The EAW system of ‘surrender’ is distinct from traditional extradition arrangements in many respects (Spencer). For instance, under the EAW system the executive plays no role in the decision-making process. Rather, the judicial authority of the requesting state issues a warrant to a judicial authority of the requested state, who determines whether the requested person is eligible for surrender for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order (Art. (1) Framework Decision). It is required to determine eligibility for surrender in accordance with the grounds laid out in the Framework Decision, which are much less onerous than those grounds commonly found in extradition treaties (Spencer). The EAW applies to any offence punishable under the law of the requesting state by at least twelve months imprisonment, or, where there has already been a conviction, where a sentence of at least four months has been imposed (Art. 2(1)). The double criminality requirement, a common feature of extradition treaties, has been abolished for 32 enumerated offences under the EAW system (Art. 2(2)). Additionally, the requested state may choose to waive the double criminality requirement for offences for which an EAW may be issued (Art. 2(4)).
35. The EAW was introduced in order to create a quicker, more efficient procedure, founded upon member states’ confidence in the integrity of each other’s legal and judicial systems (Office of the King’s Prosecutor v Cando Armas (2006) 2 (UK)). Nonetheless, the EAW system has been criticized by some on the basis that it fails to safeguard the rights of those subject to surrender (Ionescu 782–791; Konstadinides 200). Although the Court of Justice of the European Union (CJEU) has upheld the validity of the Framework Decision (Advocaten voor de Wereled VZW v Leden van de Ministerraad (2007) (CJEU)), its implementation by Member States has given rise to more constitutional challenges than any other EU law (Chalmers et al 599). Those challenges have principally related to the protection of nationals; the abolition of the double criminality requirement; and the lack of sufficient procedural guarantees (Klimek 304; Nicholls 288–9; Chalmers et al 599). For instance, the constitutional courts of Poland and the Republic of Cyprus found the EAW to be unconstitutional on the basis that it conflicted with a constitutional prohibition on the extradition of nationals (Judgment No. P1/05 (Pol); Judgment of 7 November 2005 (Cyprus)). In Germany, the constitutional court found that the EAW system, as then implemented, did not adequately protect the fundamental rights of German nationals (European Arrest Warrant Act Case (2005) (Ger); Klimek 305); and later the Higher Regional Court of Stuttgart found that although the double criminality requirement had been abolished for certain offences, the decision to permit extradition must fully respect the principle of proportionality as enshrined in its constitution (Weis 146–7; Decision No. 1246/09 (2010) (Ger)). The CJEU has also considered, in a number of cases, whether it is open to the courts of the Member States to refuse to surrender a requested person on the basis of constitutional or regional human rights guarantees (Ciprian Vasile Radu (2013) (CJEU); Melloni v Ministerio Fiscal (2013) (CJEU); Aranyosi and Căldăraru v Generalstaatsanwaltschaft Bremen (2016) (CJEU)).
36. Some Member States have made amendments to their domestic constitutions in an effort to comply with the Framework Decision. For instance, some Member States now specifically provide a constitutional basis for the surrender of nationals (eg Basic Law of the Federal Republic of Germany: 23 May 1949 (as Amended to 23 December 2014) Art. 16(2) (Ger); Constitution of the Republic of Croatia: 2 December 1990 (as Amended to 6 July 2010) Art. 9 (Croat); Constitution of the Portuguese Republic (Sixth Revision): 2 April 1976 (as Amended to 24 July 2004) Art. 33(1)–(5) (Port)). By contrast, some EU Member States have effectively retained traditional protections for alleged offenders (eg Italy retains double criminality requirements for nationals: Italian Law No. 69 of 22 April 2005, Art. 8(3) (It)).
(b) Disguised Extradition and Extraordinary Rendition
37. The notion of ‘disguised extradition’ refers to those cases where a state purposefully circumvents its own extradition laws by using an alternative legal process to directly or indirectly deliver an individual to another state that has an interest in prosecuting or punishing them (Sadoff 441). The most common form of disguised extradition involves a state using its immigration laws to prevent a non-national from entering its territory or to deport a non-national who has already entered with a view to ensuring that the non-national is returned to the foreign state that seeks them (Bassiouni 214). While states possess an inherent right at international law to exclude or deport non-nationals, such measures may be legally questionable when deliberately used to bypass laws governing extradition (Bassiouni 213–5). Doing so subverts the ordinary purpose of expulsion and deportation, namely to ensure that an unwanted or dangerous non-national is excluded from a state’s sovereign territory, and may result in the denial of constitutional safeguards that would be afforded in extradition proceedings (Sadoff 399–401; United States v Rogan (2014) 114–115 (Can)).
38. The constitutional or other domestic law grounds upon which an individual might rely in order to challenge the legality of a disguised extradition will vary from state to state, but common grounds include: a challenge to the decision to expel or deport an individual, or to detain them prior to expulsion or deportation, on the basis that the decision in question has been made for an improper purpose (see, for instance, R v Governor of Brixton Prison (Ex parte Soblen) (1963) (UK); HXA v The Home Office (2010) (UK); Moore v Minister of Manpower and Immigration (1968) (Can); Barton v Commonwealth of Australia (1974) (Austl)); a complaint that the extraditing state is denying certain procedural or substantive safeguards to the individual by virtue of the state’s circumvention of its extradition laws (Linnas v Immigration and Naturalization Service (1986) (US); Wallace v State of the Netherlands (1963) 304 (Neth)); and a challenge to any interference with an individual’s freedom of movement once he or she has been expelled or deported from the state’s territory (In re Esposito (1932) (Braz); Muller v Superintendent (1955) 499 (India)). A disguised extradition may also be challengeable on the basis that it breaches constitutional or other safeguards that apply regardless of whether an individual is removed under immigration or extradition laws: for instance, safeguards relating to the imposition of the death penalty in a foreign state (eg Mohamed and Another v President of the Republic of South Africa and Others 49 (2001) (S Afr); see also the discussion on the death penalty elsewhere in this entry).
39. Where an individual is returned to the state that seeks to prosecute or punish them by means of a disguised extradition, the individual may bring further legal challenges in the domestic courts of the prosecuting state, for instance, on the basis that the disguised extradition constitutes an abuse of process (eg Moti v The Queen (2011) (Austl)). The prospects of a successful legal challenge in the domestic courts of the prosecuting state are likely to be even stronger—albeit are by no means guaranteed—where legal processes have been bypassed altogether and an individual has been returned to the prosecuting state by means of abduction or some other unlawful form of extraordinary rendition (see, eg, the cases discussed in Sadoff 528–35, and Attorney-General of the Government of Israel v Eichmann (1961) (Isr)).
(c) Surrender to an International Criminal Court or Tribunal
40. In the last thirty or so years there has been a proliferation of international criminal courts and tribunals with jurisdiction over certain international crimes (Kreß 2009). The success of such courts and tribunals depends to a large degree on the willingness of states to cooperate with them, including in relation to the arrest and surrender of individuals wanted for prosecution (Sluiter). The use of the term ‘surrender’ is deliberate in this context, to ensure that ‘traditional extradition law is not applicable, mutatis mutandis, to the special surrender regime’ (Sluiter 607). See also Art. 102 of the Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002), which articulates the distinction between the two concepts. Regardless of the terms used, however, individuals may seek to rely upon the same constitutional safeguards that apply to extradition proceedings to prevent their surrender to an international court or tribunal. Indeed, this was a major concern in the lead up to and establishment of the International Criminal Court (ICC) and the ratification by states of the Rome Statute of the International Criminal Court (Duffy 2001). Some states were concerned that constitutional prohibitions on the extradition of nationals would prevent surrender to the ICC, and a number of those states amended their constitutions to avoid that result (Duffy 2001. See, for instance, the Basic Law of the Federal Republic of Germany: 23 May 1949 (as Amended to 23 December 2014) Art. 16(2) (Ger); Constitution of the Republic of Burundi: 18 March 2005, Art. 50 (Burundi)). Many other constitutional issues have also arisen in connection with surrender to the ICC, including the ICC’s power to impose a life sentence, given that some constitutions prohibit that penalty (Duffy (2001); Kreß and Lattanzi; Kreß (2005)). Life imprisonment is prohibited, for instance, under the Constitution of the Federative Republic of Brazil: 5 October 1988 (as Amended to 15 September 2015) Art. 5 XLVII(b) (Braz) and the Constitution of the Portuguese Republic (Sixth Revision): 2 April 1976 (as Amended to 24 July 2004) Art. 30(1) (Port). Another constitutional issue that has arisen in connection with the ratification by states of the Rome Statute is the conflict between constitutional immunities, such as those conferred on heads of state and sitting parliamentarians, and the obligation under the Rome Statute to surrender alleged offenders regardless of their official status (see, for instance, Amar and Kalt’s discussion of constitutional immunities under the US constitution and Duffy (2001)) (see also immunity; immunity of heads of state under constitutional law; immunity of legislative body members).
(d) Prosecution at Home for Crimes Committed Abroad
41. Finally, when a state is barred from extraditing an individual to a requesting state, it may instead seek to prosecute them at home for the crimes for which they are wanted abroad (Sadoff 371–86). Indeed, under international law, the aut dedere aut judicare principle requires that a state either extradite an alleged offender or take good faith measures towards prosecution under its own judicial system, though the source, scope and content of that obligation is a matter of debate (Mitchell). Thus, an individual who is unable to be extradited to a requesting state or surrendered to an international criminal court or tribunal owing to one or more constitutional barriers will not necessarily escape prosecution altogether. There are cases, for instance, where states have successfully prosecuted individuals at home who are unable to be extradited to a requesting state owing to concerns about ill treatment upon their return, but who are wanted in connection with serious international crimes (see, eg, Prosecutor v François Bazaramba (2010) (Fin)). States that are unwilling to extradite nationals also quite frequently enter into treaties that embody the aut dedere aut judicare principle by requiring them to prosecute those nationals at home (Mitchell Chapter 1, para. 11. See also the discussion of nationality as a bar to extradition elsewhere in this entry).
42. The desirability or otherwise of the constitutional rights and safeguards discussed in this entry form part of a wider, ongoing debate over the balance that ought to be struck between the protection of the rights of individuals and the interest of states and the international community in bringing alleged offenders to justice. These debates have featured in many high profile and contentious cases over the centuries, the recent case of WikiLeaks founder Julian Assange and the 18th-century case of Jonathan Robbins being prime examples (discussed in O’Shea and Robinson 146–8 and Wedgwood 229 respectively). Although there are competing views over the balance that ought to be struck, the rights of individuals should not be subordinated entirely to the interest that states and international organisations have in prosecuting alleged offenders. After all, the extradition and surrender of alleged offenders ought to serve the interests of justice and the rule of law. Where fundamental rights are jeopardized, so too are those important principles.
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