Extradition | Legal Reasoning for CLAT PDF Download

Introduction

Extradition is a legal procedure wherein a country relinquishes an individual accused or convicted of a crime to the jurisdiction of another country for prosecution or punishment.

This process is essential for fostering global collaboration in combating transnational crime and ensuring the application of justice and the rule of law beyond national boundaries.

The Basis and Purpose of Extradition

Extradition is based on the principle of reciprocity and mutual legal assistance between nations. Countries enter into bilateral or multilateral treaties, agreements or conventions that define the terms and conditions under which they agree to surrender individuals sought for criminal prosecution. 

The primary objective of extradition is to ensure that those accused of serious crimes, such as murder, terrorism, drug trafficking and other offences, cannot evade justice by seeking refuge in foreign territories.

The Extradition Process

The extradition process typically involves several key stages:

• Extradition Request: The extradition process commences with the requesting state, also referred to as the requesting country, submitting a formal request to the requested state, where the accused individual is currently situated. This request contains information about the purported offense, evidence substantiating the charges, and the identification and whereabouts of the sought-after individual.
• Review and Evaluation: Authorities in the requested state evaluate the extradition request to ascertain its legitimacy and adherence to the applicable treaty or agreement. They verify whether the alleged offense falls within the scope of the extradition arrangement's provisions and confirm that the requesting state has presented adequate evidence to support the charges.
• Arrest and Detention: Should the requested state find the request to be valid, it has the authority to issue an arrest warrant for the accused individual, leading to their detention while awaiting subsequent legal proceedings. The accused retains certain legal protections and rights to due process throughout the entirety of this process.
• Extradition Hearing: The person facing extradition holds the right to contest the request through a legal proceeding, typically through an extradition hearing. In this hearing, the court assesses whether the criteria for extradition are fulfilled and determines whether the individual should be handed over to the requesting state.
• Ministerial Decision or Judicial Decision: In some countries, the final decision on extradition lies with the country’s executive branch (Minister of Justice, for instance). In others, the judiciary makes the decision. This decision considers factors such as the seriousness of the offence, the presence of fair trial guarantees in the requesting state, the risk of persecution or mistreatment and potential political motivations behind the request.
• Surrender and Transfer: If the extradition is approved, the individual is handed over to the requesting state through diplomatic channels for prosecution or trial. If denied, the individual may be released from custody in the requested state.

Challenges and Controversies

Extradition can be a complex and contentious process, with various challenges and controversies. Some of the common issues include:

• Political Considerations: Extradition requests may become entangled with political considerations, leading to potential misuse of the process for political purposes or to shield individuals from prosecution.
• Human Rights Concerns: There are concerns about the potential violation of the accused individual’s human rights, particularly if they face the risk of torture or an unfair trial in the requesting state.
• Dual Criminality: Some countries require that the alleged offence be recognised as a crime in both the requested and requesting states, a principle known as dual criminality.
• Nationality and Non-Extradition: Many countries have laws or treaties that prevent the extradition of their own nationals, leading to situations where some individuals may not face justice for their alleged crimes.

Advancing Extradition in the Modern World

In an increasingly interconnected world, extradition has become a critical tool in combating international crime and terrorism. To enhance the effectiveness and fairness of the extradition process, nations must work together to establish clear and transparent extradition agreements, provide proper legal safeguards for the rights of accused individuals and uphold the principles of justice and human rights.