Common conditions of extradition
Extradition means sending back the people who is responsible for the crime to the place he or she committed the crime. On the other hand position means the place where the incident occurred. In many cases it is observed that criminals take place to another country after committing a crime in one country. In that situation if the law enforcing authority of that country can identify and catch that person they can either punish that person by their law or they can send that person to his or her own country. In this situation both country have fulfill their legal requirement. There are a lot of formalities they need to perform. The whole procedure is bounded by some laws. Any of these countries cannot avoid their legal procedures. The problem arises when the laws of relevant countries are different about the extradition and position.
Extradition may be briefly described as the surrender of an alleged or convicted criminal by one State to another. More precisely, extradition may be defined as the process by which one State upon the request of another surrenders to the latter a person found within its jurisdiction for trial and punishment or, if he has been already convicted, only for punishment, on account of a crime punishable by the laws of the requesting State and committed outside the territory of the requested State.
Extradition plays an important role in the international battle against crime. It owes its existence to the so-called principle of territoriality of criminal law, according to which a State will not apply its penal statutes to acts committed outside its own boundaries except where the protection of special national interests is at stake. In view of the solidarity of nations in the repression of criminality, however, a State, though refusing to impose direct penal sanctions to offences committed abroad, is usually willing to cooperate otherwise in bringing the perpetrator to justice lest he goes unpunished.
Extradition request for an accused/ fugitive can be initiated after charge sheet has been filed before an appropriate Court and said court having taken cognizance of the case has issued orders/directions justifying accused/fugitive’s committal for trial on the basis of evidence made available in the charge sheet and has sought presence of the accused/fugitive to face trial in the case.
For many times Bangladesh asked for extradition to other countries and for many cases government of Bangladesh have faced problem in extradition. Some of the cases were very much important and completed. Bangladesh government needed to be successful over those cases for years. As example the case of killing Seikh Mujibur Rahman can be mentioned.
EXTRADITION: The surrender of an accused or convicted person by one state or country to another (usually under the provisions of a statute or treaty).
Position: a place; the way of holding the body; the way a thing is set or placed; a job (or level of a job) in an organization
- If an extradition treaty exists between Bangladesh and the requested country, the extradition request and documents connected therewith should be prepared on the basis of provisions of Extradition Treaty
- The consensus in international law is that a state does not have any obligation to surrender an alleged criminal to a foreign state as one principle of sovereignty is that every state has legal authority over the people within its borders. Such absence of international obligation and the desire of the right to demand such criminals of other countries have caused a web of extradition treaties or agreements to evolve; most countries in the world have signed bilateral extradition treaties with most other countries. No country in the world has an extradition treaty with all other countries; for example, the United States lacks extradition treaties with several nations, including the People’s Republic of China, Namibia, the United Arab Emirates, and North Korea.
There are many reasons for why countries need to exchange the people they arrest. For extradition cases I have found most of them were involved with the politics. If any country is ruled by any dictator then are a lot of incident is occurred by the government or with the support of the government which is not legal in general way. At different period many people who were involved with those illegal activities are sent to any other country that supported that illegal government. After the end of the dictatorship if the legal government wants to punish those people then the extradition comes to the scenario.
Many war criminals take shelter in different crimes. In first and second world war many war criminal took shelter in different countries. Later countries who wanted to punish those people had to go through the extradition process. After Second World War many war criminals took shelter in Argentina, America and many other countries and in later the countries where those people committed crime urged to those countries to send them back. In Bangladesh killer of Seikh Mujibor Rahman took shelter in many countries across the world, some of them were brought to the country and some of them could not be brought to the Bangladesh because of the unmatched extradition law.
India, Bangladesh working on extradition treaty: Hasina
January 13, 2010 12:57 IST
- One famous example of the French custom in practice is the case of the director Roman Polanski. Polanski was convicted of statutory rape of a 13 year old in the United States in 1977 but fled to France before sentencing. From there, as a French citizen, he cannot be extradited to the United States. The French government has pointed out that Polanski could be prosecuted in France if the U.S. authorities so requested. U.S. authorities declined that possibility.
For Bangladesh most of the cases related with extradition is with India. India has given a list of over a hundred camps operating on Bangladesh territory by northeastern fugitives. Dhaka denies they exist. Bangladesh handed over an updated list of 1,648 Bangladeshi criminals hiding in India at the director-general level border conference between Bangladesh Rifles and Border Security Force held in Dhaka recently. The Indian side gave a list of 464 Indian criminals.
ICPO-Interpol has been a forerunner in international efforts to improve and accelerate existing procedure of extradition. Apart from attempts by academic bodies such as the Harvard Research Draft Convention on Extradition, the ICPO-Interpol was the first international organization to recommend to member countries a Draft General Agreement for the Extradition of Offenders, which unfortunately has remained a dead letter since it was adopted by the General Assembly of the Organization (then known as the International Criminal Police Commission) in 1948.
Interpol’s interest in finding ways of improving the extradition process did not end with the failure of the Draft General Agreement. Since the early fifties, the General Secretariat of the ICPO-Interpol has undertaken on behalf of the member countries two new activities intended to facilitate international police co-operation in matters relating to extradition.
- Wednesday, August 27, 2008 1:49:22 PM by IANS
- The first of these initiatives concerns the publication of a series of circulars on a country basis, setting out the provisional measures that the police in each country may take when complying with a request from the police of another member country for quick action with a view to identification and arrest of a person wanted on a warrant of arrest. The second initiative taken by the ICPO-Interpol consists in the dissemination of national extradition laws. This activity is based on a resolution of the General Assembly passed in 1967 in Tokyo (Japan) inviting member countries to forward the texts of their extradition laws to the General Secretariat so that the latter may send them to other member countries for their information. The pre-extradition circulars and the texts of extradition laws of the member countries received from the General Secretariat are being maintained in the Interpol Wing.
Laws for extradition and position in Bangladesh:
In Bangladesh the extradition of a fugitive from Bangladesh to a foreign country or vice-versa is governed by the provisions of Bangladeshi Extradition Act, 1974. The basis of extradition could be a treaty between Bangladesh and a foreign country.
There are some formalities which should be maintained by the country which is asking for the extradition like:
|1. It should be in spiral bound and contain an index with page numbers.
2. The request should be supported by a self-contained affidavit executed by the Court by whom the fugitive is wanted or by a Senior Officer in charge of the case (not below the rank of Superintendent of Police of the concerned investigating agency) sworn before a judicial Magistrate (of the court by which the fugitive is wanted for prosecution). The affidavit should contain brief facts and history of the case, referring at the appropriate places the statements of witnesses and other documentary evidences. Criminal’s description establishing his identity; provision of the law invoked etc. so that a prima facie case is made out against the fugitive criminal.
3. Paragraph 1 of the affidavit should indicate the basis/capacity in which the affidavit is executed.
4. The affidavit should indicate that the offences for which the accused is charged in India.
5. The affidavit should also indicate that the law in question was in force at the time of Commission of offences and it is still in force, including the penalty provisions.
6. The evidence made available should be admissible under Indian laws. Accordingly, the affidavit should indicate whether the statements of witness are admissible as evidence in India in a criminal trial/prosecution. Statements of witnesses should be sworn before the Court.
7. The affidavit should also indicate that if the accused were extradited to India, he would be tried in India only for those offences for which his/her extradition is sought.
8. Copy of First Information Report (FIR), duly countersigned by the competent judicial authority, should be enclosed with the request.
9. Competent authority should countersign copy of charge sheet, which is enclosed with the documents.
10. A letter/order from the concerned court justifying accused person’s committal for trial on the basis of evidence made available in the Charge sheet, with a direction seeking accused person’s presence in court to stand trial in said court from the country of present stay.
11. Warrant of arrest should be in original and open dated indicating clearly only those offences for which the accused is charged and Court has taken cognizance with relevant sections thereof.
12. Nationality, identity and address of the accused including his photograph should be made available with the request.
13. Copy of the relevant provisions under which the accused is charged along with the provisions of the relevant laws indicating that the maximum sentence prescribed for the offence for which the accused is charged or convicted.
14. The extradition request is to be made in quadruplet (four copies). All original and copies should be attested /authenticated by the concerned court.
15. All the documents should be very clear, legible and in presentable form as they are to be presented to the sovereign Governments of Foreign Countries.
16. Original documents in national languages should be sent along with certified English translation of each such document from authorized translators.
17. Extradition requests/documents to the country where English is not first language should be submitted along with duly translated copy in host country’s local language. The Court issuing warrant should certify such translated copy.
|After completion of necessary formalities, the request for extradition should contain a letter/note from a Senior Official (not below the rank of Joint Secretary) or the concerned State Government indicating the correctness of the case/material with a request to the Central Executive to forward it to the Government of the concerned foreign country.|
If the concerned court is requesting for extradition of a person, the request in the form of an affidavit should be in first person, i.e. by the Hon’ble Magistrate/ Judge himself/herself. (Such requests are usually received from Court Masters or other court officials writing in third person on behalf of the Court. Requested States object to it)
Bangladesh’s legal framework for international cooperation in corruption cases consists essentially of the Extradition Act (No. 58 of 1974) and, to a limited extent, the provisions in the Criminal Procedure Code 1898 (No. 5 of 1898). The Extradition Act sets out the basic elements for extradition from Bangladesh and some grounds for denying extradition. It applies to extradition to and from countries with which Bangladesh has a treaty and which the Bangladeshi Government has declared as an extradition country in the official Gazette. In the absence of a treaty, the Government may also direct that the Act applies to a foreign state if it is considered expedient that a person in Bangladesh be surrendered. Bangladesh has an extradition treaty in force with Thailand, a member of the ADB/OECD Initiative. It also has extradition relations under the London Scheme with nine members of the Initiative (Australia; Fiji; India; Malaysia; Papua New Guinea; Samoa; Singapore; Sri Lanka; and Vanuatu). Foreign requests for extradition may also be handled through the UNCAC, ratified by Bangladesh in 2007. The Criminal Procedure Code contains limited provisions for seeking assistance abroad through evidence commissions: it allows the issuance of commissions to examine witnesses abroad, but does not contain provisions for seeking other types of MLA or for responding to incoming MLA requests. After ratifying the UNCAC on 27 February 2007, Bangladesh may seek and provide MLA to and from States Parties to the Convention.
The Legal Framework for Extradition, MLA and Recovery of Proceeds of Corruption
Before granting extradition, Bangladesh will require prima facie evidence of the underlying offense. The Extradition Act specifically requires a magistrate at an extradition hearing to hear evidence not only in support of extradition but also on behalf of the person sought. Specialty is mandatory for extradition to and from Bangladesh. For incoming requests, the Extradition Act requires the law of the requesting state or an applicable treaty to specifically provide specialty protection. The Act also provides such protection to persons extradited to Bangladesh.
Concerning grounds for refusing extradition, Bangladesh does not prohibit the extradition of its nationals per se, nor is the death penalty a bar to extradition. Extradition is refused if the person sought has been convicted or acquitted of the same offense in Bangladesh. It is also refused if the person would be discharged under a law relating to previous acquittal or conviction had he/she been charged with that offense in Bangladesh. The Extradition Act also prohibits extradition if the request relates to an offense of a political character. The same rule applies if an extradition request was made with a view to trying or punishing the person sought for a political offense. Bangladesh will also refuse extradition if it would be unjust or inexpedient to surrender the person sought, having regard to the gravity of the offense, whether the request was made in good faith, any unreasonable delay in requesting extradition, and the interest of justice.
Legal Preconditions for Extradition and MLA (Including in Relation to Proceeds of Corruption) September 2007
As for grounds for denying cooperation, the Extradition Act does not specify when and which body considers whether extradition should be refused on a particular ground (except when extradition is unjust or inexpedient). Clarifying this matter could be helpful. The Extradition Act also requires the law of the requesting state or an applicable treaty to specifically provide specialty protection. Consideration could be given to accepting assurances of specialty from the judicial, prosecutorial or diplomatic authorities of the requesting state.
Allowing MLA to be provided in the absence of a treaty could enhance Bangladesh’s ability to seek and provide international cooperation in corruption cases. To that end, Bangladesh could enact a law specific to MLA, which would also greatly enhance transparency and certainty to the process. The Extradition Act could be updated so as to provide more modern features, such as provisional arrest and consent extraditions. Abandoning the list approach to defining extradition offenses could ensure that all corruption and related offenses (e.g., money laundering and illicit enrichment) are covered.
Bangladesh applies the prima facie case evidentiary test in extraditions. Civil law jurisdictions seeking extradition from other common law jurisdictions have had difficulties in complying with this test. Bangladesh could therefore consider following the example of some common law countries (e.g., Australia for extradition to certain non-Commonwealth countries) and require less or even no evidence for extraditions. In addition, the Extradition Act requires the extradition judge to receive evidence on behalf of the person sought. Bangladesh may wish to consider whether this would allow the person to tender evidence regarding whether he/she committed the offense underlying the extradition. If so, the extradition hearing could potentially be turned into a trial, thereby delaying the process.
Common conditions of extradition
By enacting laws or concluding treaties or agreements, countries determine the conditions under which they may entertain or deny extradition requests. Common bars to extradition include:
- Failure to fulfill dual criminality – generally the act for which extradition is sought must constitute a crime punishable by some minimum penalty in both the requesting and the requested parties.
- Political nature of the alleged crime – most countries refuse to extradite suspects of political crimes.
- Possibility of certain forms of punishment – some countries refuse extradition on grounds that the person, if extradited, may receive capital punishment or face torture. A few go as far as to cover all punishments that they themselves would not administer.
- Jurisdiction – Jurisdiction over a crime can be invoked to refuse extradition. In particular, the fact that the person in question is a nation’s own citizen causes that country to have jurisdiction.
- Citizenship of the person in question – some nations refuse to extradite their own citizens, holding trials for the persons themselves.
These conditions are applied internationally. To exchange criminals any country may face these conditions. The reasons of these conditions are given as the footnote.
- Most countries require themselves to deny extradition requests if, in the government’s opinion, the suspect is sought for a political crime. Many countries, such as Mexico, Canada and most European nations, will not allow extradition if the death penalty may be imposed on the suspect unless they are assured that the death sentence will not be passed or carried out
- Countries with a rule of law typically make extradition subject to review by that country’s courts. These courts may impose certain restrictions on extradition, or prevent it altogether,
- Some countries, such as France, Germany, Russian Federation, Austria, China and Japan, forbid extradition of their own citizens either by law or by treaty
Allowing MLA to be provided in the absence of a treaty should enhance Bangladesh’s ability to seek and provide international cooperation in corruption cases. To that end, Bangladesh could enact a law specific to MLA, which would also greatly enhance transparency and certainty to the process. The Extradition Act should be updated so as to provide more modern features, such as provisional arrest and consent extraditions.
Establishing a central authority for extradition and MLA in corruption cases could result in economies of scale, concentration of expertise, better coordination among law enforcement agencies, and lower risks of duplication. Allowing the central authority to directly send and receive requests would eliminate delays caused by transmission through the diplomatic channel. Creating a Web page in English that is dedicated to international cooperation could further assist foreign authorities.
Also, Bangladesh could consider establishing additional measures for urgent requests such as allowing foreign states to transmit requests for provisional arrest outside the diplomatic channel and accepting oral MLA requests that are subsequently confirmed in writing (Article 46(14) of the UNCAC).
Bangladeshi legislation does not deal with foreign requests to trace, restrain, forfeit or repatriate proceeds of corruption. The Money Laundering Prevention Act 2002 does not deal with international cooperation apart from authorizing the Government to enter into agreements with foreign countries to fulfill the Act’s objective.
Bangladesh’s legal framework for international cooperation in corruption cases consists essentially of the Extradition Act and, to a limited extent, the provisions in the Criminal Procedure Code on evidence commissions. Extradition to and from countries is, however, subject to the existence of a treaty. Until recently, the lack of treaties no doubt presented the greatest obstacle for cooperation. Since the ratification of the UNCAC in 2007, Bangladesh may now seek and provide extradition and MLA to and from States Parties to the Convention.
From my observation from this research laws for extradition and position in Bangladesh is not enough in the present world. Government should be more sincere to update it. Recommended ways can solve this weakness.
Books and journals:
- Summaries of mutual evaluation reports adopted in 2002 – 2003, APGML,Relevant Laws and Documentation .Extradition Act 1974 (Act 58 of 1974) Code of Criminal Procedure 1898 (Act 5 of 1898) .
- Mahmudul Islam, constitutional law of Bangladesh, 1995.
- Bangladesh public press, Bangladesh extradition act 1974, 1998.
- Asian Development Bank, Bangladesh, The Legal Framework for Extradition,.September 2007
- Organisation for Economic Co-operation and Development, Procedures and Measures to Improve the Efficiency of Extradition and MLA,2007