Academic literature on the topic 'Extradition law'

On the basis of four ‘irregular’ extradition cases, the author demonstrates that states sometimes violate generally accepted rules of extradition law. Legitimate grounds for the refusal of, as well as procedural impediments to extradition are evaded -for instance by simply kidnapping the individual involved. Also, the so-called ‘disguised extradition’ is used by states, when expelling a person in stead of extraditing him, but in fact accomplishing the same result. Despite such apparent failures in the procedure of obtaining an individual (‘male captus’), states maintain that the individuals can nevertheless be legitimately tried (‘bene judicatus’). According to the author, these practices are incompatible with certain general principles of international law.

In July 2006, three bankers, all UK nationals, were extradited to the United States on charges of conspiracy to defraud their one-time employers, a British bank, a subsidiary of Natwest. The conduct took place under the shadow of the ‘Enron’ affair. The defendants were said to have conspired with senior officials of Enron. Enron was the subject of the largest corporate bankruptcy in US history. In comparison the sums involved in the Enron collapse, those at stake in what the papers called the ‘Natwest Three’ case were small, but the involvement of persons implicated in the Enron affair made the defendants of interest to US prosecutors. The cases enjoyed an unusual public profile, partly because the extraditions took place under the unique legal regime which governs US-UK extradition,1 partly because this case was simply one of several cases in which persons charged with what one might loosely call economic crimes were sought by US prosecutors2 and partly because the defendants argued that their offences (which they denied) were allegations of what were ‘really’ English crimes which should have been proceeded with here. Although the extradition aspects have loomed largest, this last matter, possible conflicts of criminal jurisdiction, is the most interesting.

On March 3,1997, President William J. Clinton transmitted to the Senate for its advice and consent to ratification as a treaty the Agreement Between the Government of the United States of America and the Government of Hong Kong for the Surrender of Fugitive Offenders, signed at Hong Kong on December 20,1996. In his letter of transmittal, President Clinton pointed out that, upon its entry into force, the Agreement would “enhance cooperation between the law enforcement communities of the United States and Hong Kong, and … provide a framework and basic protections for extraditions after the reversion of Hong Kong to the sovereignty of the People’s Republic of China on July 1, 1997.” The President continued: Given the absence of an extradition treaty with the People’s Republic of China, this Treaty would provide the means to continue an extradition relationship with Hong Kong after reversion and avoid a gap in law enforcement. It will thereby make a significant contribution to international law enforcement efforts.The provisions of this Agreement follow generally the form and content of extradition treaties recently concluded by the United States. In addition, the Agreement contains several provisions specially designed in light of the particular status of Hong Kong. The Agreement’s basic protections for fugitives are also made expressly applicable to fugitives surrendered by the two parties before the new treaty enters into force.

The present article examines the developments of extradition law in Europe, with a special focus on case law in England & Wales and Germany. It explores the effects that the case law of the European Court of Human Rights and the Court of Justice of the European Union has had on extradition law within Europe, and how the tensions between mutual trust and fundamental rights protection in this area have been addressed by the two jurisdictions.

The article considers topical issues of definition and implementation of the institution of extradition in the criminal law of Ukraine. There is a view that extradition should be understood only as the institution of extradition of offenders, and the transfer of convicts to serve their sentences is an independent institution of criminal law. In our opinion, this statement cannot be accepted, as it concerns an identical procedure, the systemic material and legal feature of which is its security focus on the realization of individual criminal responsibility, and this view is supported by lexical analysis of terminological concepts "extradition" and «transfer». as identical in factual content. It is noted that the obligatory legal condition for extradition (as well as transfer) is a valid international agreement, the parties to which must be Ukraine and the state requesting the extradition of the person. It is proved that the institution of extradition has a complex interdisciplinary nature, because it arises at the crossroads of constitutional law, criminal law, criminal procedure and international law. It allows to define it as a comprehensive legal procedure for transferring a person to another state to implement the principle of inevitability of criminal liability, regardless of the place of temporary actual stay. It is shown that the main task of the institute of extradition is to ensure the inevitability of bringing a person guilty of a crime to criminal responsibility, which allows to determine the fundamental basis and essence of this institution as a criminal law. It is emphasized that the institution of extradition is complex, combining the extradition of persons suspected of committing a crime and persons convicted of a crime, and both cases of its application have a common purpose – to ensure that the person guilty of the crime is prosecuted.

SummaryTo secure greater inter-state cooperation in criminal law enforcement, Canada has entered into a number of extradition treaties. Yet alongside this network of extradition treaties lies a network of human rights treaties to which Canada has also agreed to be bound. Given the inherently international nature of extradition, and the interconnection between Canada's human rights treaties and its obligations under the Canadian Charter of Rights and Freedoms, one would have thought that Canada's international human rights obligations might play some role in bolstering the protection afforded by the Charter to the rights of an individual facing extradition from Canada, even if the threshold for invoking the latter remains high. And yet, while a review of Canada's extradition jurisprudence for the past thirty years confirms that a role for human rights has emerged in Canadian extradition law, scant attention has been paid to Canada's international human rights treaty obligations as treaty obligations when deciding whether to extradite upon receiving a valid request. The author argues that if Canada's international human rights obligations were considered, along with Canada's domestic Charter obligations, greater guidance would be made available as to the appropriate balance of rights and obligations at stake, while also affording equal treatment to all of the treaty obligations relevant to extradition.

1. The principle of double criminality is traditionally bound with institutions of international criminal law. Double criminality is a requirement not only with extradition, but also with the transfer of criminal proceedings and with execution of foreign sentences. International criminal law employs a range of “double conditions”, the common denominator of which is the requirement that two legal systems share a certain set of values or legal prescriptions. In addition to double criminality, international law uses such terms as “double punishability”, the “double possibility of criminal proceedings” and the “double possibility of the execution of penal judgment”. Among these concepts, double criminality is the most important and universal condition applied in the basic institutions of international criminal law, such as extradition, the transfer of proceedings, and the execution of foreign penal judgments.