“Extradition is a process whereby the convict of a crime can be brought and tried in the state where the convict is alleged to have committed the crime”: Discuss the property of the statement.
Introduction:
Extradition is the surrender of a person charged with a crime by one state or country to another state or country. Usually the Governor’s office will make the request for extradition to the Governor of the state in which the accused is present; claiming the right to prosecute is made. The defendant may “waive extradition” and allow him/her to be taken into custody and returned to the state where charges are pending1.
Extradition from one state to another takes place on the order of the governor of the asylum state (the state where the accused is located). The courts in the asylum state have a somewhat limited function in extraditing the accused to the state where she or he is charged with a crime. They determine only whether the extradition documents are in order (e.g., whether they allege that the accused has committed a crime and that she or he is a fugitive) and do not consider the merits of the charge, since the trial of the accused will take place in the state demanding extradition2.
International extradition is more complicated and often governed by treaty. Most countries will extradite persons charged with serious crimes; however, some countries will refuse to extradite persons charged with certain crimes, such as crimes subject to the death penalty.
The Legal Framework for Extradition:
Extradition from one nation to another is handled in a similar manner, with the head of one country demanding the return of a fugitive who is alleged to have committed a crime in that country. Extradition between nations is usually based on a treaty between the country where the accused is currently located and the country seeking to place him or her on trial for an alleged crime. The United States has entered into extradition treaties with most countries in Europe and Latin America, and with a few countries in Africa and Asia. 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 sought3.
1. Extradition clause provides that any accused person who flees to another state should be returned to that state.
2. When extraditing an accused from one state to another, most states follow the procedures set forth in the Uniform Criminal Extradition Act, which has been adopted by most jurisdictions.
3. 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).
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.
The Supreme Court has identified that a court considering an extradition case can only decide four issues4: (1) whether the extradition documents on their face are in order, (2) whether the petitioner has been charged with a crime in the demanding state, (3) whether the petitioner is the person named in the request for the extradition, and (4) whether the petitioner is a fugitive.
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 character5. 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.
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 6.
4. “Abduction as an Alternative to Extradition—A Dangerous Method to Obtain Jurisdiction over Criminal Defendants.” 1993. Wake Forest Law Review 28
5. The New Mexico Supreme Court in Reed determined that the person subject to the extradition, Manuel Ortiz, was not a “fugitive,” and refused to honor the extradition order from the state of Ohio.
6. Bangladesh public press, Bangladesh extradition act 1974, 1998.
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 7.
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 Honorable 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)
7. Extradition Act (No. 58 of 1974) and, to a limited extent, the provisions in the Criminal Procedure Code 1898 (No. 5 of 1898).
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 8.
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 9.
Ø 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.
Ø Political nature of the alleged crime – most countries refuse to extradite suspects of political crimes.
8. Innes v. Tobin, 240 U.S. 127, 36 S. Ct. 290, 60 L. Ed. 560 (1916); Hyatt v. New York ex relrkran, 188 U.S. 691, 23 S. Ct. 452, 47 L. Ed. 651 (1902);
9. Clipper v. State, 295 Md. 303, 455 A.2d 973 (1983); Gildar, 191 Md. 568; Utt v. Warden, Baltimore City Jail, 48 Md. App. 486, 427 A.2d 1092 (1981)
Ø 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.
Ø 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.
Ø 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.
Ø 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.
Ø 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.
Ø Some countries, such as France, Germany, Russian Federation, Austria, China and Japan, forbid extradition of their own citizens either by law or by treaty.
Criticism of the Political Offense Exception
Critics of the political offense exception and/or the incidence test, when used to detect a political offense, claim one or both encourages international terrorism. The extremists believe that the political offense exception should be abolished’ 21 because it encourages international terrorism by allowing those committing violence in other countries to seek asylum in the United States11.
11. California v. Superior Court of California, 482 U.S. 400 (1987), 107 S. Ct. 2433; Kentucky v. Dennison, 65 U.S. (24 How.) 66, 16 L. Ed. 717 (1861).
Other critics state that, while the political offense exception should be kept, it should be reformed with some new standard because the traditional incidence test does not adequately separate political offenders from international terrorists. These critics argue that the present operation of the exception poses difficult definitional problems due to the test’s vagueness; international terrorists are treated the same as those who act on the basis of conscience.
Recommendation
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 12.
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).
12. Asian Development Bank, Bangladesh, The Legal Framework for Extradition,.September 2007.
Conclusion
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.
Bibliography:
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) .
· Marcus, Paul. 2003. Criminal Procedure in Practice. Notre Dame, Ind.: National Institute for Trial Advocacy.
· 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
Websites:
· http://www.audioenglish.net/dictionary/extradition.htm
· http://pimsleur.english-test.net/definitions
· http://www.defenceforum.in/forum/showthread.php?t=13581&page=1
· http://www.baselgovernance.org/fileadmin
· http://newsfrombangladesh.net/view.php?hidRecord=154036
· http://kanglaonline.com/2010/10/unlf-chief-held-in-bangladesh-extradited-to-india-bcc/