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Bars to extradition

By enacting laws or in concluding treaties or agreements, countries determine the conditions under which they may entertain or deny extradition requests. Observing fundamental human rights is also an important reason for denying some extradition requests. It is common for human rights exceptions to be specifically incorporated in bilateral treaties. The repressive nature and the limitations of freedoms and liberties that is a part of the extradition process is reason for exceptions and human rights are observed in the extradition process. Such bars can be invoked in relation to the treatment of the individual in the receiving country, including their trial and sentence. These bars may also extend to take account of the the effect on family of the individual if extradition proceeds. Therefore human rights protected by international and regional agreements may be the basis for denying extradition requests, but cases where extradition is denied should be treated as independent exceptions and will only occur in exceptional circumstances.

Common bars to extradition include:

Failure to fulfill dual criminality

Generally the act for which extradition is sought must constitute a crime punishable by some minimum penalty in both the requesting and the requested states.

Political nature of the alleged crime

Most countries refuse to extradite suspects of political crimes. See political offence exception.

Possibility of certain forms of punishment

Some countries refuse extradition on grounds that the person, if extradited, may receive capital punishment or face torture. A few go as far as to cover all punishments that they themselves would not administer. This area of refusal is often difficult however, as the requested country must often rely on the assurances of the requesting country that certain forms of punishment will not be saugh. The method by which states assess these assurances varies, but often the requested country will not rely only on these assurances, taking into account the actual known practice and circumstances within that country.

• Death penalty: Many jurisdictions, such as Australia, Canada, Macao, New Zealand, South Africa, and most European nations except Belarus, will not allow 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.

The United Nations Human Rights Committee considered the case of Joseph Kindler, following the Canadian supreme court's decision in Kindler v Canada to extradite Kendler who faced the death penalty in the United States. This decision was given despite the fact that it was expressly provided in the extradition treaty between these two states that extradition may be refused unless assurances were given that the death penalty shall not be imposed or executed as well as arguably being a violation of the individual's rights under the Canadian Charter of Human Rights.

• Torture, inhuman or degrading treatment or punishment: Many countries will not extradite if there is a risk that a requested person will be subjected to torture, inhuman or degrading treatment or punishment. In regard to torture the ECHR has in the past simply not accepted assurances that torture will not occur when given by a state where torture is systematic or endemic. Although in the more recent case before the same court of Othman (Abu Qatada) v United Kingdom the court retreated from this firm refusal and instead took a more subjective approach to Unlike capital punishment it is often more difficult to prove the existence of torture within a state and considerations often depend on the assessment of quality and validity of assurances given by the requesting state. In the deportation case of Othman (Abu Qatada) v United Kingdom before the ECHR the court provided 11 factors the court will assess in determining the validity of these assurances..

While torture is provided for a bar to extradition by the European Convention on Human Rights and more universally by the Convention Against Torture, it is also a jus cogens norm under international law and can therefore be invoked as a bar even if it is not provided for in an extradition agreement. In 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 harsh conditions on death row and the uncertain timescale within which the sentence would be executed, and not specifically the death penalty sentance. The court in Soering stressed however that the personal circumstances of the individual, including age and mental state were relevant in assessing whether there extradition would give rise to a real risk of treatment exceeding the threshold in Article 3. In particular, the fact that the person in question is a nation's own citizen causes that country to have jurisdiction (see next point).

Own citizens

Some countries, such as Austria, Brazil, the Czech Republic, France, Germany, Japan, the People's Republic of China, the Republic of China (Taiwan), Russia, Switzerland and Syria forbid extradition of their own citizens. 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 country's borders (see, e.g., trial of Xiao Zhen).

Right to private and family life and right of children

In a limited number of cases Article 8 of the ECHR has been invoked to deny extradition. Article 8 states that everyone has the right to respect for their private and family life. This is achieved by way of balancing the potential harm to private life against the public interest in upholding the extradition arrangement. This case is an example of the gravity of the crime for which extradition was saught was not proportionate to the protecting the interests of the individuals family. However the court in this case noted that even in circumstances where extradition is refused a custodial sentance will be given to comply with the principles of international comity. In contrast the case of HH v Deputy Prosecutory of the Italian Republic, Genoa is an example of when the public intrest of allowing extradition oughweighed the best interests of the children. In this case both parents were being extradited to Italy for serious drug importation crimes. While best interests of children has been recognised under article 8, the case of Norris v US (No 2) a man sought to argue that if extradited his health would be undermined and it it would cause his wife depression.This claim was rejected by the court who stated that a successful claim under Article 8 would require “exceptional” circumstances.

• Suicide Risk

Cases where there is risk of the individual committing suicide have also invoked article 8 as the public interest of extraditing must be considered in light of the risk of suicide by the individual if extradited. In the case of Jason's v Latvia extradition was refused on these grounds, as the crime for which the individual was sought was not enough of a threat to public interests to outweigh the high risk of suicide which had been assessed to exist if they were extradited.

Human right of extradition

Human rights as a bar to extradition can be invoked in relation to the treatment of the individual in the receiving country, including their trial and sentence as well as the effect on family of the individual if extradition is granted. The repressive nature and the limitations of freedoms and liberties which are intrinsic to extradition and thus raise concerns of fundamental human rights. Therefore human rights protected by international and regional agreements may be the basis for denying extradition requests, but only as independent exceptions.

Determining whether to allow extradition by the requested state is, among other considerations, a balancing exercise between the interests of the requesting state's pursuit of justice over the accused individuals, the requested state's interests in holding dominion over those presently in its territory and the rights of the extraditable persons. Extradition raises human rights concerns in determining this balance in relation to the extraditable person. States make provision to recognise these rights both expressing in bilateral treaty agreements and also,potentially by way of state's obligations under the Universal Declaration of Human Rights, while the International Covenant on Civil and Political Rights is particularly relevant to extradition. Although regional, the European Convention of Human Rights has also been invoked as a bar to extradition in a number of cases falling within its jurisdiction.

Torture and inhuman treatment can be invoked as reasons to refuse extradition. Torture is addressed directly by Article 3 of the European Convention on Human Rights, in the case Othman (Abu Qatada) v. United Kingdom, although this was a case against deportation the application of article 3 is the same for both deportation and extradition. the court considered in detail the systematic practice of torture in Jordan and th

Europe

The most useful source of development in this area has come from the European Court of Human Rights, especially Article 3 and Article 8. For extradition within Europe there exists the European Arrest Warrant, designed to expedite extraditions between EU nations obligating such states to execute extraditions unless one of the limiting grounds of objection is applicable. justified in part by the free movement within Europe.. However the EAW

Fair trial standards

Consideration of fair trial standards if particularly complex in extradition cases. Its complexity arises from the fact that while the court deciding whether to surrender the individual must uphold these rights this same court must also be satisfied that any trial undertaken by the requesting state after extradition is granted also respects these rights. Again courts have shown that subjective considerations should be made in determining whether such trials would be ‘unjust’ or ‘oppressive’ by taking into account factors such as the duration of time since the alleged offences occurred, health of the individual sought and likelihood of conviction among others. Trials held in abstania by the requesting country prior to extradition also raises fair trial concerns, Article 14 of ICCPR generally condemns such trials Art 14 ICCPR Article 6 of the ECHR also provides for fair trial standards which must be observed by the European Country when making an extradition request.

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Rameka v New Zealand

Rameka v New Zealand was a challenge to New Zealand’s preventive detention regime. It was also the first case where the Human Rights Committee found that New Zealand had breached the International Covenant on Civil and Political Rights. The Committee found that New Zealand had breached article 9(4) of the ICCPR in relation to one of the three authors of the communication. This was because he did not have the power to take proceedings to challenge the lawfulness of his detention. The decision was notable because of the substantial disagreement amongst Committee members. Commentator Claudia Geiringer has noted that Rameka highlights how consensus decision making can lead to “lowest common denominator” outcomes.

External links

• [Geiringer, Claudia, Rameka v New Zealand (2005). (2005) 2 New Zealand Yearbook of International Law 185. Available at SSRN: https://ssrn.com/abstract=2480862]