Analysis of Extradition Law and Its Principles - Essay Example

ANALYSIS OF EXTRADITION LAW AND ITS PRINCIPLES TABLE OF CONTENTS HEADING PAGE I. Extradition of two Britishcitizens on charges of manslaughter in Cyprus……1 II. Analysis of the five different newspaper reports on the event of Extradition….2 III. Analysis of Extradition Laws and its effect on the World Order………………4 i. Introduction…………………………………………………………………4 ii. Extradition a brief history and analysis……………………………………..4 iii. Conclusion………………………………………………………………….15 IV. Bibliography…………………………………………………………………..16 I. Extradition of two British citizens on charges of manslaughter in Cyprus The newspaper article is about an extradition case involving two British cousins Michael Binnington, 23, and Luke Atkinson, 24, they were backseat passengers in a car which was driven by their uncle, the car hit a moped whose pillion rider was killed because of that accident. The Cyprus Supreme Court passed an order for their 3 years imprisonment in their absence for the charges of culpable man slaughter. The cousins voluntarily attended Belgravia police station in central London after losing the case against extradition in the court. They will be taken to the airport from there handed over to Cyprus authorities. The cousins bid farewell to their relatives and their mother was very upset and angered about the extradition. Their lawyer said that they have to serve minimum 6 months in prison but was skeptical about the safety of his clients as there was local outrage about the accident. The defendant’s lawyer expressed surprise that the Supreme Court in the country did not involve itself in this case and stated that the only step will be to try and repatriate them as soon as possible, the family of the two Cousin’s will visit them in the prison and she has arranged for the British High Commission to visit them at prison. In February 2007 the Cousins were acquitted by a lower Cypriot court but the verdict was over turned by the High Court in absence of the Cousins who were in Britain at that time. Both of them will serve their sentence at Nicosia prison and the minimum term is for six months. Their uncle the car driver voluntarily accepted man slaughter charges and is presently serving a 15 year term in the prison. The cousins will serve their sentence at a prison in Nicosia. The Labour MEP for Essex Richard Howitt said that the given judgment was retribution and in European law right of defendants must also be protected as in this case back seat riders cannot be held responsible for an accident. First track justice delivery system in Europe needs serious attention after this case was pulled up by Fir Trials International. Almost all British newspapers carried the same report with consistency the subject was about the extradition of two Cousin brothers who were at the time of the accident were sitting in the backseat of the car which their uncle was driving and that car hit a moped killing the pillion rider. It gave brief details of the accident and also the court procedure where the Uncle was sentenced to 15 years prison and initially the Cousins were acquitted by the lower court but later on after moving out of Cyprus the higher court sentenced them in their absence to 3 years imprisonment. This article highlighted the miscarriage of justice and the anomalies and ambiguity that the extradition law in Europe is facing and the reaction of the civil society especially the various civil rights groups who were demanding suitable amendments in the legislation to curb miscarriage or misinterpretation of justice. II. Analysis of the five different newspaper reports on the event of Extradition The above news item is covered by various news media in different forms. In the British tabloid Guardian, Tuesday December 1, 2009 the whole incident was reported in brief but to the point. It depicted the extradition law and its adverse effect on the lives of common citizens of another country and how it may be misinterpreted. It also gives a brief description of the incident the background reaction of the defendants and their council, and what is the reaction on the rights organizations as well as the relatives of the victims. Though the effect of the legislation is not elaborately mentioned but the punishment given and the effect of the ruling is given in brief. The Independent news reported almost the same storyline with quotes from defense lawyer and also the brief history of the event. It almost followed the same storyline as that of Guardian. The only difference being it did not mention the reaction of the family members and also the effect it had on the legal rights group. This is significant because it failed to provide the effect that the society is having because of the extradition law. The readers are not clear about the implication of this law vis-à-vis the society at large and the civil rights groups. In Metro the same news featured here the whole incident is described in the beginning of the article in exactly two lines and the defense counsel’s comments were very prominently mentioned with her future action and apprehension. Here also no mention of the victim’s family members or other rights group was made. In the Mirror the news featured in almost similar manner as in Guardian and Independent where the whole incident has been elaborated with the defense council’s view and there is again no mention of the right groups. The London Evening Standard also featured the news, here it began almost the same way by the main incident of extradition and also featured the counsel’s comment and comprehension, and finally the circumstances in which the court delivered the judgment, no mention was there about rights group objection. In the Telegraph events were described along with the procedural aspect which also mentioned the comment of The High Court Judges and the administrative action and how the Cyprus court convicted them in their absence and the wrong advice given by their counsel in Cyprus. The article reported some new lights by mentioning the comments made by the Judge and how it was carried out. It is a bit different from other news items reported on this topic and depicted from different point of view. III. Analysis of Extradition Laws and its effect on the World Order i. Introduction Extradition means surrender of a fugitive to the jurisdiction of another state, country, or government to face trial by due process of law. Extradition is the surrendering of an individual by one state to another or by one nation to another where the person surrendered is accused of a crime in the state or nation demanding the surrender of the accused. The accused person fleeing to take shelter to an asylum state or nation is deemed a fugitive of the law. A state or nation makes an extradition demand so that the accused can be put on trial within its legitimate jurisdiction. In the United States extradition of an accused is either within the state or international. Different States and nations are not required automatically to surrender a fugitive because of the sovereignty of the states and nations. Sovereignty of the states and world nations necessitates extradition laws and treaties and extradition proceedings. 1 ii. Extradition a brief history and analysis The Extradition Act 2003 passed by an Act of the Parliament of the United Kingdom. It came into force on 1 January 2004 and all types of extradition requests from this date are covered by the Act. It is concerned with extradition to and from the UK in respect of all territories countries and in particular is applicable into UK law the US-UK Extradition Treaty 2003. 2 The Act makes room for new extradition procedures, the main features are: Procedures where each of the United Kingdoms extradition partners is in one of two categories. Each country is demarcated by order of the Secretary of State for a particular category. It will be possible for a particular country to move from one category to the other when appropriate, depending on the extradition procedures that the United Kingdom negotiates with each extradition partner; the adoption of the Framework Decision on the European Arrest Warrant creating a fast-track extradition procedure with Member States of the European Union and Gibraltar; retaining of the current procedure for extradition with non-European Union countries with important modifications and changes to reduce duplication and complexity; a simplify the rules governing the authentication of foreign documents; the abolition of the mandatory requirement to provide prima facie evidence in certain cases; A very simplified single window of appeal for all cases. 3 Extradition proceedings begin when a demand is made from a state for the surrender of a fugitive. Extradition proceedings do not form a part of the legal trial to determine whether the fugitive is guilty or innocent of the crime. An extradition begins, if required, in the asylum state to consider the merit of the action of demanding states charge against the accused. After receiving a written demand and examining the facts of the charge against the accused, the authority of the asylum state may grant or deny the demand to surrender the fugitive. The authority may decide to bring the accused to trial within the asylum states jurisdiction if it so decides. If a demanding state wants to try a fugitive within the states jurisdiction for a crime committed in the asylum state or a third state, the demanding state must rely on the authority of state legislation rather than the other statutes. The extradition of Fugitive juvenile, as opposed to a fugitive adult, from an asylum state to a requesting state occurs only if it is determined that extradition is in the best interests of that country and in the best interests of the juvenile. International extradition exists only if there is an authority of an international treaty. The United Kingdom has the right to make an extradition demand only if a treaty with the nation providing a fugitive with asylum includes an extradition agreement. The United Kingdom has a duty to surrender an accused only if the country has a treaty containing an extradition agreement with the nation demanding the surrender of a fugitive in the absence of a treaty, neither the United Kingdom government nor the foreign government has the right to demand or the duty to deliver a criminal fugitive. Even with a treaty, there may be restrictions on the duty to surrender a fugitive by the United Kingdom and the demanding or asylum nation may place. The use of the death penalty in many states is the reason, as authorized in the governing treaty, for a foreign asylum nation to refuse to extradite a fugitive to the country. 4 The extradition of an accused takes place from one state or country to another state or country that seeks to place the accused on trial. Extradition comes into play when a person charged with a crime under state statutes flees the state. Extradition from one nation to another is handled, 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. 5 To determine whether an individual can be extradited pursuant to a treaty, the language of the particular treaty must be examined. Some treaties provide list of all the offenses for which a person can be extradited; others provide a minimum standard of punishment that will render an offense extraditable. The extradition treaties of most countries fall into the second category, since treaties in the first category must be revised if an offense is added to the list. Most treaties contemplate that for an offense to be subject to extradition, it must be a crime under the law in both jurisdictions even it is not clearly specified. This is called the doctrine of double criminality.6 The name by which the crime is described in the two countries need not be the same, nor the terms of the punishment be the same; simply, the requirement of double criminality is met if the particular act is charged as criminal act in both jurisdictions. 7 The doctrine of specialty is also often applied which means that once a person has been surrendered, he or she can be prosecuted or punished only for the crimes for which extradition was requested, and not for any other crimes committed, even when not specifically stated in a treaty. The doctrine was first established over a hundred years ago, in United States case.8 Extradition treaties often provide exceptions under which a nation can refuse to surrender a fugitive. Many nations will not extradite persons charged with certain political offenses, such as treason, sedition, and espionage. Refusal to extradite under such circumstances is based on the policy that a nation that disagrees with or disapproves of another nations political system will be reluctant to return for prosecution a dissident who likewise has been critical of the other nation. But, of course, not every criminal act will necessarily be protected. For example, some treaties provide that certain crimes, such as the assassination of a head of a foreign government, do not constitute political offenses that are exempt from extradition. The alarming rise in airplane hijacking, terrorism, and hostage taking in the late twentieth century led many nations to enter into multilateral conventions in which the signing countries mutually agreed to extradite individuals who committed such crimes. Since the 1980s, the international extradition process has been viewed by law enforcement authorities as too time-consuming, expensive, and complicated. It has also been criticized for frequently failing to bring fugitives to justice. As a result, some countries, including the United States, have turned to abduction to return a fugitive to a nation to be tried. Although its legality is questionable, abduction has sometimes been justified to combat drug trafficking and to ensure national security.9 Extradition treaties or agreements There is a consensus in international law which specifies 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 natural evolution of extradition treaties or agreements; most countries in the world have penned down bilateral extradition treaties with most other countries. However, 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 Peoples Republic of China, Namibia, and North Korea. Common conditions of extradition By specific legislations or concluding treaties or agreements, countries determine the preconditions under which they may entertain or deny extradition requests. Common hindrances to extradition include: Failure to satisfy dual criminality - generally the act for which extradition is sought must constitute a crime which is punishable by some minimum penal action in both the countries. If the alleged crime is of political nature - most countries refuse to extradite suspects of political crimes. Possibility of certain forms of severe punishment - some countries refuse extradition on grounds that the person may receive capital punishment or face torture. Jurisdiction - Jurisdiction over a crime can be invoked to refuse extradition. In particular, if the person in question is citizen of a country it causes that country to have jurisdiction. Citizenship of the person in question - some countries refuse extradition of its citizens, they hold trials for the persons themselves. 10 Restrictions Most countries may deny extradition requests if, in the governments opinion, the suspect is sought for a political crime. Countries, such as Mexico, Canada and most European nations, will deny 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. In the case of Soering v. United Kingdom, the European Court of Human Rights held that it would violate Article 3 of the European Convention on Human Rights to extradite a person to the United States from the United Kingdom in a capital case. This was due to the capital punishment and the uncertain timescale within which the sentence would be executed. Parties to the European Convention also cannot extradite people where they would be at significant risk of being tortured mistreated or severely punished. 11 Countries with a rule of law generally make extradition subject to review by the courts. These courts may impose certain restrictions on extradition, or prevent it, if for instance they deem the accusations to be based on false evidence, or evidence obtained from torture, or if they believe that there will not be a fair trial on arrival, or will be subject to cruel, inhumane treatment or torture if extradited. Countries, such as France, Russian Federation, Germany, Austria, China and Japan, forbid extradition of it’s citizens either by law or by treaty. Such restrictions are occasionally controversial in other countries when, for example, a citizen of these countries commits a crime abroad and then returns to their home country, so they can escape prosecution. These countries often have laws in place that give them jurisdiction over crimes committed abroad by or against citizens. By virtue of such jurisdiction, they prosecute and try citizens accused of crimes committed abroad as if the crime had occurred within the countrys borders. Exemptions in the European Union The usual extradition agreement safeguards relating to dual-criminality, the presence of prima facie evidence and the possibility of a fair trial have been waived by many European nations for a list of specified offences under the terms of the European Arrest Warrant. The warrant entered into force in eight European Union (EU) member-states on 1 January 2004, and is in force in all member-states since 22 April 2005. Defenders of the warrant argue that the usual safeguards are not necessary because every EU nation is committed by treaty, and often by legal and constitutional provisions, to the right to a fair trial, and because every EU member-state is subject to the European Convention on Human Rights. In the case of Soering v. United Kingdom, the European Court of Human Rights ruled that the United Kingdom was not permitted under its treaty obligations to extradite an individual to the United States, because the United States federal government was constitutionally unable to offer binding assurances that the death penalty would not be sought in Virginia courts. Ultimately, the Commonwealth of Virginia itself had to offer assurances to the federal government, which passed those assurances on to the United Kingdom, which extradited the individual to the United States. International tensions The refusal of a country to extradite suspects or criminals to another may lead to international relations being strained. Often, the country to which extradition is refused will accuse the other country of refusing extradition for political reasons (regardless of whether or not this is justified). The questions involved are often complex when the country from which suspects are to be extradited is a democratic country with a rule of law. Typically, in such countries, the final decision to extradite lies with the national executive (prime minister, president or equivalent). However, such countries typically allow extradition defendants recourse to the law, with multiple appeals. These may significantly slow down procedures. On the one hand, this may lead to unwarranted international difficulties, as the public, politicians and journalists from the requesting country will ask their executive to put pressure on the executive of the country from which extradition is to take place, while that executive may not in fact have the authority to deport the suspect or criminal on their own. On the other hand, certain delays, or the unwillingness of the local prosecution authorities to present a good extradition case before the court on behalf of the requesting state, may possibly result from the unwillingness of the countrys executive to extradite. 12 For example, there is at present a disagreement between the United States and the United Kingdom about the Extradition Act 2003 that dispenses with the need for a prima facie case for extradition. 13 It is important to emphasize, however, that even had the treaty been ratified by the U.S., the treaty would still be one-sided, because it stipulates that extradition requests from the UK to the U.S. must show a "reasonable case" that the suspect committed the offense, but requests from the U.S. to the UK have no such requirement imposed on them. This came to a head over the extradition of the Natwest Three from the UK to the U.S., for their alleged role in the Enron fraud. Several British political leaders were heavily critical of the British governments handling of the issue. The precedent of the Natwest Three may also be used to extradite others. The press has carried severe criticisms of the present extradition arrangements from the UKs business community, some of whom stated that they were avoiding doing business with or in the U.S. because of legal concerns such as the extradition treaty, among other concerns. 14 Extradition and abduction Issues of international law relating to extradition have proven controversial in cases where a state has abducted and removed an individual from the territory of another state without previously requesting permission, or following normal extradition procedures. Such abductions are usually in violation of the domestic law of the country in which they occur, as infringements of laws forbidding kidnapping. Many also regard abduction as violation of international law, in particular of a prohibition on arbitrary detention. A small number of countries have been reported to use kidnapping to circumvent the formal extradition process. Among other provisions Part 2 of the Act: Extradition to category 2 territories (non-European Arrest warrant territories) has caused some controversy as it removed the requirement on the USA to provide prima facie evidence in extraditions from the UK, requiring instead only reasonable suspicion. 15 The controversy surrounding the United States lack of reciprocity noted above was a result of the failure of the US to ratify the US-UK Extradition Treaty 2003 into US law. The treaty, first sent to the Senate for approval in April 2004, lowers the level of proof the US must show to win extradition of a suspect. It also permits temporary surrender of fugitives for trial who are already serving a prison sentence in the other country. 16 Liberty and Fair Trials International said the new law, passed by the European Parliament and certain to be ratified by member states, threatened the "fundamental principle of the right to a fair trial" and they were considering a challenge in the European Court of Human Rights. The proposals would allow British - and other European Union citizens - to be extradited automatically to another EU country to serve their sentence on the basis of a decision by a foreign court. At present British courts have some discretion to refuse to extradite a British citizen. But the new law will sweep away that discretion and make it almost automatic for a British citizen convicted abroad to be extradited to serve his sentence. 17 iii. Conclusion In view of the above amendments it can be concluded that there has been a shift in the balance for defense against the extradition act. The new European legislation it has been very difficult to resist extradition whether it is a just cause or has got some traces of bias in the delivery of judgment. Present globalization and liberalization has made it mandatory for the countries to open up not only their trade barriers but also provide a transparent legal system. In Europe particularly after the commencement of the unification as European Union it has become mandatory for the members to abide by the verdict passed by court of law of another country. So in this circumstance the extradition of the British citizens were as per law. Wide scale discrepancies among different laws in European countries with rampant corruption in some countries have made the situation worst and it ids true that many cases were reported where miscarriage of justice have really taken place. In order to make the European Convention on extradition a success it ie required to plug the loopholes and make the law more transparent. IV. Bibliography Collins v. Loisel, 259 U.S. 309, 42 S. Ct. 469, 66 L. Ed. 956 [1922] Extradition Act 2003. Explanatory Notes to Extradition Act 2003 Chapter 41 http://www.answers.com/topic/extradition http://news.bbc.co.uk/1/hi/8177561.stm http://www.guardian.co.uk/uk/2009/dec/01/cousins-extradited-cyprus-killing-motorcyclist http://www.independent.co.uk/news/world/europe/cousins-extradited-over-cyprus-death-crash-1831852.html http://www.mirror.co.uk/news/latest/2009/12/01/cousins-extradited-over-death-crash-115875-21864256/ http://www.thisislondon.co.uk/standard/article-23777685-cousins-extradited-over-death-crash.do http://www.telegraph.co.uk/news/worldnews/europe/cyprus/6652174/Two-Britons-jailed-for-manslaughter-over-Cyprus-crash-to-be-extradited.html Pyle, Christopher H. Extradition, Politics, and Human Rights. Philadelphia: Temple University Press, 2001. Soering v United Kingdom 11 Eur. Ct. H.R. (ser. A) (1989) United Nations Crime and Justice Information Network. Available http://www.uncjin.org/Laws/extradit/extindx.htm. Provides updated extradition information by country, Akiba J. Covitz United States v. Rauscher, 119 U.S. 407, 7 S. Ct. 234, 30 L. Ed. 425 (1886) "UK to act over NatWest 3 treaty". BBC News website. 2006-07-10. http://news.bbc.co.uk/1/hi/business/5163982.stm. Retrieved 2008-09-12. EU extradition law faces legal challenge Read More