The proceedings of a State requesting the extradition of a person from another State for the purposes of criminal proceedings are complex and serious undertakings. The filing and execution of an extradition request involves the legal systems of more than one state – a complex set of laws and procedures designed to protect the sovereignty of the states concerned and the rights of the person sought. Therefore, procedural rules and requirements must be carefully observed to ensure that both States deliver justice in their legal systems and vis-à-vis the accused person. Some extradition principles are common to many countries. For example, many States reject any obligation to surrender their own nationals; The constitutions of Slovenia and, until 1997, of Colombia prohibited the extradition of their nationals. In Argentina, Great Britain and the United States, nationals can only be extradited if the extradition treaty allows it. Another common principle is dual criminality, which stipulates that the alleged offence for which extradition is requested must be punishable in both the requesting and requested countries. In accordance with the principle of specificity, the requesting State may prosecute the extradited person only for the offence for which extradition has been granted and may not extradite the detainee for offences committed prior to the initial extradition. Although States have recognized certain exceptions to this principle – and certain rules allow the extradited person to waive them – it is crucial for the exercise of the right to asylum. If the requesting State were allowed to convict an extradited person for an offence corresponding to its objectives (for example, because of a political crime), the right to asylum would suffer from both national and international law. International extradition requests are not initiated by individuals.
Only law enforcement agencies can apply for extradition, usually after charges have been laid and a court has issued an arrest warrant for the person. If the person is wanted in the United States, the Office of International Affairs works with the prosecutor to prepare a request for extradition to another country. The Ministry of Foreign Affairs requests foreign countries through diplomatic channels. Article 6 of the ECHR also provides standards for a fair trial, which must be respected by European countries in the event of an extradition request. [6] This court in the Othman case, which would be tried if extradition were to be tried if 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] There are two types of extradition treaties: list agreements and dual criminality treaties. The most common and traditional is the list contract, which contains a list of crimes for which a suspect is extradited. Agreements on dual criminality generally allow for the extradition of a suspect if the sentence in both countries is more than one year in prison. Sometimes the amount of the penalty agreed between the two countries varies. Under both types of treaties, while conduct is not a crime in both countries, it is not an extraditable crime.
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.