Smaller problems may arise due to different qualifications for crime. For example, in the United States, crossing state borders is a requirement for certain federal crimes (otherwise, crimes such as murder, etc. are handled by state governments, except in certain circumstances such as the murder of a federal official). This carriage clause is naturally absent from the laws of many countries. Extradition treaties or subsequent diplomatic correspondence often contain language to the effect that these criteria should not be taken into account in determining whether the offence should be committed in the country from which the extradition was to take place. The United States has extradition treaties with more than a hundred countries, some dating back more than a century. It does not have treaties with dozens of others, including China, Iran, North Korea and Russia, as well as many countries in Africa, the Middle East and the former Soviet Union. Under national law, the requested State receiving an extradition request takes into account a number of factors. The decision to extradite a person to another State is, in most cases, and with the exception of the EAW procedure, the result of a two-tier system in which the judiciary intervenes at the beginning of the procedure and the executive at the last stage of the decision-making process (when the judiciary has taken a positive decision on the acceptance of the extradition request).
According to the court, courts take into account a number of factors when deciding on extradition, including dual criminality, identity, sufficiency of evidence and the existence of an extradition treaty. In some jurisdictions, court or executive decisions may be challenged or reviewed. The extradition procedure is subject to strict deadlines for the filing of documents, appeals, the presentation of the suspect to the court and the surrender of the suspect upon request. Until now, most extradition treaties have been bilateral in nature, but more and more multilateral agreements are being signed and implemented at the regional or international level (the Organized Crime Convention is a typical example of international instruments in this regard). The advantage of multilateral conventions is that they provide common definitions of criminal offences and procedures for states, which often have different legal traditions and procedures (Nicholls, Montgomery, Knowles, Doobay, & Summers, 2013; Missbach, 2015). Prosecutors must fill out a form in all cases where it appears that provisional arrest may be necessary, indicating that provisional arrest may be necessary. Once completed, it can be emailed directly to the OIA lawyer or OIA team responsible for the country where the refugee was found or suspected to be. A copy of the indictment, arrest warrant and all other documents necessary to justify the preliminary search in that country must be provided to the Internal Audit Office.
The extradition procedure allows governments to try refugees abroad, but it can be fraught with political tensions even when a treaty is in force. The decision as to whether extradition by the requested State is lawful is, inter alia, a balancing exercise between the interest of the requesting State in obtaining justice for the accused, the interest of the requested State in exercising control over persons currently present in its territory and the rights of persons liable to be extradited. [46] Extradition raises human rights concerns when it comes to determining this balance with respect to the extraditable person. States shall ensure that these rights are recognized both in bilateral agreements and, where appropriate, in the context of their obligations under the Universal Declaration of Human Rights, of which the International Covenant on Civil and Political Rights is particularly relevant for extradition. [6] The European Convention on Human Rights, although regional, has also been used as an obstacle to extradition in a number of cases within its jurisdiction, and judgments of the European Court of Human Rights have been a useful source of developments in this area. The person then appears before a U.S. judge or district judge for a trial that typically involves an initial appearance, bail order, and hearing pursuant to 18 U.S.C. § 3184 (often referred to as «probable cause»).
At the probable cause hearing, the extradition judge decides: «(1) A treaty is in force; 2. [t]he arrested person is in fact the person sought by the requesting State; 3. The offence with which the refugee is charged constitutes an extraditable offence within the meaning of the Treaty; 4. The application must state probable reason to believe that the refugee committed the alleged offence; and (4) there are no contractual grounds for refusing extradition. 32 The specific issues raised at the hearing depend on the provisions of the treaty and the obstacles to extradition provided for by law. It is important to note that the trial is not a trial for probable reason and that the rules of evidence and criminal procedure do not apply as in criminal proceedings.33 In general, individuals may present «explanatory» evidence that provides an exculpatory explanation of the requesting State`s evidence, but they are generally not allowed to present evidence that merely contradicts the evidence presented by the requesting State.34 The extradition treaty requires a country requesting extradition to prove that: See William Booth, U-Md. A professor testifies amid glitches at Assange`s extradition hearing in London, The Wash. Post, September 7, 2020. The primary responsibility of the Office of Internal Audit is to review any outgoing extradition requests, to ensure that they are legally sufficient, and to decide whether to request the Department of State to submit a formal extradition request through diplomatic channels. Upon receipt of a request, the Internal Audit Office, in consultation with the Department of Foreign Affairs, confirms the following: In this 1891 case, a murderer fled Switzerland for England.
The British government rejected Switzerland`s extradition request. The court ruled that the accused murdered to provoke political unrest, which is a crime of a political nature. Consequently, England was not obliged to extradite him. The issues are often complex when the country from which suspects are to be extradited is a democratic country with the rule of law. As a rule, in these countries, the final decision on extradition rests with the national executive (Prime Minister, President or equivalent). However, these countries generally allow extradition defendants to invoke the law, with multiple appeals. These can significantly slow down procedures. On the one hand, this may lead to unjustified international difficulties, as the public, politicians and journalists of the requesting country ask their executive to put pressure on the executive branch of the country from which extradition is to take place, whereas that executive may not have the power to expel the suspect or criminal himself. On the other hand, some delays or the reluctance of local law enforcement authorities to submit a good extradition case to the court on behalf of the requesting State may result from the reluctance of the country`s executive branch to extradite. Article 6 of the ECHR also provides that European countries must respect fair trial standards when requesting extradition. [6] This court in the Othman case, which would be tried in case of extradition if the evidence against him were obtained through torture.
[42] This was found to be a violation of Article 6 of the ECHR as it posed a real risk of «flagrant denial of justice.» [13] The Othman Court emphasized that a violation of Article 6 must constitute a flagrant denial of justice in the requesting country that goes beyond a mere unfair trial. [43] The evidence obtained through torture was sufficient to meet the threshold of flagrant denial of justice in a number of cases. This is partly because evidence of torture threatens «the integrity of the trial and the rule of law itself.» [44] Some contemporary scholars argue that aut dedere aut judicare is not an obligation under customary international law, but «a specific treaty clause relating to certain crimes» and, therefore, an obligation that exists only if a state has voluntarily assumed the obligation. However, Cherif Bassiouni postulated that, at least as far as international crimes are concerned, it is not only a rule of customary international law, but a principle of jus cogens. Professor Michael Kelly cited Israeli and Austrian court decisions, noting that «there is anecdotal evidence to support that judges in national systems are beginning to apply the doctrine themselves.» [2] If convicted or accused persons are not extradited by the territorial state, it sends the wrong signal to criminals who intend or intend to escape the territorial clutches of the legally competent state. If the territorial State refuses to extradite convicted persons or accused persons present in its territory, it will encourage more of them to flee to its territory. Thus, such a country could become a haven for international criminals, ultimately threatening security and peace on its territory. See U.S. Dep`t of State, 7 Foreign Affairs Manual (FAM) 1613.1(c). The Department of State publishes an annual publication entitled Treaties in Force, which contains the most recent list of countries with which the United States has extradition treaties.