Published on 27th March 2025
Authored By: Harini Sri B
The Central Law College, Salem
ABSTRACT
“Extradition is the surrender of accused or convicted for the offence which he has committed or convicted on the request of the country for the offence against its law”. Every country has its own rules and own regulations that are binding together and if a person has committed an offence that person may run to another country to get shelter, then to bring the accused back to the country where the crime has happened that country will seek another country’s help where the accused went for shelter by requesting them to surrender the accused. To arrest the convict cooperation of the other country where he has taken shelter is significant. Similarly, there are certain obscurity in bringing back the accused from other country which are the loopholes of the extradition laws.
HISTORY OF EXTRADITION
“Belgium” was the first and foremost country to introduce the extradition to bring back the convicted in 1833 where the term ‘extradition’ was originated from two Latin words- ‘ex‘ which means ‘out’ and ‘tradium’ which means ‘give up’. It is based on the Latin legal maxim “aut dedere a1ut judicare” meaning “either extradite or prosecute”.[1]
An Australian judge has said the “Extradition is becoming the major characteristics of contemporary crime because of the rapid increase in mobility, improved technology and various versions of criminality”[2]
EXTRADITION PRINCIPLES
The cooperation of two countries is needed to process the extradition. The country which has requested to surrender the convict is “requesting country” and the country to which the individual is removed from its territory is “requested country”. In recent days, thousands of individuals were removed under extradition for various reasons like petty theft, drug trafficking, murders, war crimes and terrorism etc.
There were difficulties in approaching the extradition from one country to another country because of the different Legal system and frameworks prevailing in each country. A law which is accepted by one country won’t be accepted by another country. Despite the legal differences, there are principles that are commonly followed in other country. One of the popular principles is “dual criminality “which laid that the offence committed should be an offence in both the requesting and requested country. The second recognized principle “reciprocity” and the word reciprocal stands for the returning of benefit or penalty that a country bestows on the individuals and their legal entities of another country were needed to return in the same manner as possible.
The next principle is the “double jeopardy “(non bis in idem)[3] which stands has the fundamental principle of criminal law which says no one can be punished for the same offence twice that protects the individual from getting punished for the offence which he has already convicted under the penal procedure of each country, unless the period of punishment got over.
ADDRESSING LEGAL LOOPHOLES
- DIFFEERD IN LAWS
The legal provision of each country differs from each other. The bilateral or unilateral extradition should be developed and extended in many aspects. To resolve the difference in the state laws or group of state laws the extradition provisions should be similar to each other combined as a “universal system “.
- POLITICAL OFFENCES
In a political persecution, the mere right to grant asylum should not be replaced by the right to refuse extradition. The acts such as terrorism should not be considered as a political crime. The political offences are commonly denoted as “negative manner” for example, by excluding from the scope “political offences”.
- DIFFERED IN SYSTEM
The countries which follows the “common law system” is differed from other countries system where other countries take decisions based on the Judicial laws and the remaining countries entirely depends upon the government opinion. Therefore, it differed in opinions and making decisions.
- THE MISCONCEPTION OF CORRUPTION
The corruption is carried differently in many countries, some countries treating corruption as bribery which is against the law and harm to the state that only brings personal benefits. Meanwhile, other countries view corruption as a bribery but that doesn’t affect the state and did not give any personal benefits to the individual[4]
- ESCAPE OF SUSPECTS
The Article 1 states that extradition is applicable only for the convicted or they undergo a detention order. This means extradition order is not applicable for those are still under investigation or those who are still in the stage of potential suspect. There are higher chances for the suspects to misuse this.
- BELONGS TO THE NATION
In general cases if a convicted person is requested to return back the requesting country is not ready to give their own nationals. Some countries have decided either to agree on extradition or to make a temporary transfer in case. However, if the state requested the case should be submitted certainly to the competent authority for the appropriate actions.
CASE LAWS
- GILL & SANDU CASE
In this case, India has requested the USA to extradite the two convicts: Ranjith Singh Gill and Sukhminder Singh Sandu for the offence.
They carefully examined the fairness of Hearing procedures and district court review of extradition proceedings along with the possible antipathetic treatment guaranteed for the criminals was keenly observed with the decision of court in review[5].
- SOERING VS THE UNITED KINGDOM
In this case, Jens Soering who belongs to German national was accused of murder in the United States. The US has a requested country sought his extradition. For defence Soering argued the poor conditions with the state and claimed that he faced a real risk of distress and inhumane conditions if he were subjected to extradition. Soering claimed his rights under Article 3 of the European convention on Human Rights would be violated[6]. As a result, the European and other countries started to deny the extradition requests. Often, fugitive has started to claim the poor prison conditions of the prison to escape from the extradition stating that as a violation of Human Rights. Following this Nirav Modi and his uncle Mehul Choksi who are high profile fugitives accused for duping the Punjab National Bank approximately amount of INR140 billion was claiming the poor prison conditions escaped to UK and other got the citizenship of Caribbean Island[7].
- WRIGHT VS HENKLE
Wright who is an American citizen was accused of embezzlement in the United States. Wright fled to Canada to escape from the punishments whereas the in Canada the authorities arrested him and started the extradition proceedings. The court ruled to proceed the extradition request of the United States the requesting country which is entitled to provide the sufficient evidences against the fugitive, thus was the treaty signed between the countries.
Unfortunately, the United stated was not able to submit the required evidences against Wright and the Canadian court rules in favor of Wright and did not approve the request of extradition.
The case Wright and Henkle case has become the most popular case that established an important precedent in extradition law, emphasizing the need for requesting countries to provide the sufficient evidence to the extraction proceedings[8].
- VIJAY MALLYA CASE
The business man Vijay Mallya case a long due one for the Indian government. He was the owner of the King Fisher Airlines and the United Breweries Ltd. He is accused of defaulting on loans which is worth of 9000CR to several Indian banks. By 2016, to escape from the punishment Mallya to United Kingdom. And the Indian government has requested the extradition to the UK. Mallya appealed stating that conditions of the Indian Prisons and that appeal has been rejected by the
United Kingdom. Further, Mallya appeals including to the Supreme Court of UK was also a failure. In 2021, Mallya also applied asylum in Germany which could potemtially delay or block his extradition. The extradition of Mallya continues to be delayed and the Indian government has been pushing it[9].
CONCLUSION
The extradition process has evolved with the days it has laid down treaties and maintained mutual relationships with the countries. However, there are many countries which are not showing interest in the treaties has become the major loophole of the extradition. It is far most important to make a comprehensive law internationally to regulate the extradition. The extradition can only be done by the executive powers that should be fair and justice.
REFERENCES
[1] Renumati Rajpurohit ,”Extradition in international law a critical study”(2021) | shodhganga a reserviour of indian thesis http://hdl.handle.net/10603/384960 accessed date 6 February 2025
[2] Gavan Griffith and Clarrie Harris | recent development in the law of extradition (2005) | Melburone Law School https://law.unimelb.edu.au/__data/assets/pdf_file/0007/1681144/Griffith–and–Harris.pdf accessed date 6 Feburary 2025
[3] ANTHONY J. COLANGELO: DOUBLE JEOPARDY AND MULTIPLE
SOVEREIGNS: A JURISDICTIONAL THEORY (2009) | Washington University Open Scholarship
https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1127&context=law_lawreview accessed date 7 Febuary 2025
[4] Anthony J. Colangelo: Double Jeopardy and Multiple Sovereigns: A Jurisdictional Theory (2009) | Washington University Open Scholarship https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1127&context=law_lawreview accessed date 7 February 2025
[5] SUMAN ACHARYA , Extradition Law; Issues and Challenges ( 2020) SSRN
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2525094 accessed date 8 Febuary 2025
[6] The European Convention on Human Rights 1953
[7] Ukkash F, Extradition Of Vijay Mallya-A Legal PerspectiveLegal advice(2025) Legal Service India E-Journal https://www.legalserviceindia.com/legal/article–2578–extradition–of–vijay–mallya–a–legal–perspective.html accessed date 11 February 2025
[8] Wright v. Henkel, 190 U.S. 40; 47 L. Ed. 948; 23 S. Ct. 781, United States Supreme Court, 1 June 1903, https://www.refworld.org/jurisprudence/caselaw/ussct/1903/en/20382 [accessed 11 February 2025]
[9] Jersha Melanie, Extradition in International Law (2022) iPLeaders < https://blog.ipleaders.in/extradition–ininternational–law/#respond> accessed date 11 Feb 2025
