Extradition refers to the surrender (transfer) of a person accused for criminal offences from a host country to another country. In the best of circumstances, extradition reflects the main agreement between civilized nations that serious crimes will not remain unpunished. However, extradition is often used for political purposes, not just legal ones. Extradition treaties span over hundreds of nations, thus, creating a certain degree of complexity. For example, in the United States of America, extradition law is particularly complex due to the big number of separate treaties signed. Typically, extradition is only used for “extraditable offenses” (i.e., offenses contained in an extradition treaty between the requesting state and surrendering state). Main requirement for the majority of extraditions is the concept of “specialty” which requires an extradited defendant to go to trial only for the crimes the extradition was granted for, and not for any other offences. This protects the extradicted persons from persecution by the receiving country. Another important concept is the principle of “dual criminality” which refers to the requirement that the extraditable offense is considered a serious crime, punishable under the criminal laws of both countries. Many nations oppose the death sentence and will not agree to extradite a defendant to another country (such as the United States of America) if there is a treat the defendant to receive a death sentence. Similarly, many political offenses (crimes directed against the security or government of a nation, such as treason, sedition, espionage, murders during a revolution, etc.) are generally exempted from extradition treaties.
In the USA the extradition law is a rapidly developing area in practice.
United Kingdom
Extradition is quite different from deportation under the Immigration Law in the UK, although both processes involve the removal of a person from his current place of residence to another country by law enforcement.
Under the extradition law, whereas an agreement between the countries concerned is enforced and relevant conditions are satisfied, the implicated country is required to extradite the person who is wanted for trial or for crime sentence in the designated country; referred as requesting country.
The applicable legislation in the UK is the Extradition Act 2003 which divides the requesting countries in Category 1 and Category 2. The extradition process depends on the category of the requesting country and the nature of the named person's offence. Category 1 refers to the “fast track” European Arrest Warrant and is a more straightforward with quick procedures, while category 2 is more complex, as the requesting country may be required to prove the eligibility of their case against the person to be extradited. Extradition is a complicated area of law which requires particular skills, high level of expertise and extensive knowledge of the European Conventions, international criminal law and human rights.
The process usually begins without or with insignificant warning to the persons in question and it is bound to cause significant disruption in many personal lives.
Defense against Extradition
Some of the most important questions are: what are your options; how serious is the crime you allegedly committed in the requesting country; are there any obstacles to the extradition against you; is there any possibility to protest the reasons for the decision itself once it is taken. The process of extradition can be a very stressful and shocking experience to most clients.
Extraditions - Is there another state trying to extradite you?
To extradite, means to surrender an alleged fugitive or criminal to another state, country or authority. When a person is arrested for an alleged crime, his data is entered into the national and international data bases. If it appears that the person has committed a crime in another state or country, that state or country can request extradition from the state hosting the alleged criminal.
If an extradition request has been issued to you, you must be informed about it, which is the criminal sentence and what are your rights for consulting a criminal defense lawyer. The last right is of particular importance. The state of New York does not have to execute a request for extradition from another state. Federal and state laws regarding extradition may vary, but federal law takes priority over state law if there is a conflict. You need an attorney who is experienced in federal and state courts, with knowledge of all aspects of extradition and your rights. It has happened a wrong person to be extradited.
International Extradition
Extradition involves the surrender of a fugitive from one country to another country based on legal reciprocity or a treaty signed by both countries. The International law generally requires a country to surrender a fugitive to another country if an applicable treaty exists. An extradition treaty between the United States and another state reflects each nation’s belief that the other’s criminal justice system is fair enough to justify sending the person to stand trial in that country.
In the absence of a treaty, the United States may exercise legal reciprocity, and return an illegal alien to another country. Typically, legal reciprocity may only be exercised when the Attorney General certifies that sufficient evidence has been produced by the foreign country where the alleged offense would constitute a crime of violence if committed in the United States.
Federal authorities have no power to deliver a United States citizen to a foreign country in the absence of a treaty, unless a federal law authorizes it.
Generally, extradition treaties require that the person in question is a fugitive. The treaty's clauses regulate who can be extradited, but a fugitive is broadly defined as a person who is absent from a country when that country seeks to prosecute him for a crime. It is not necessary for the person to have intentionally fled in order to avoid charges, or that the person knew he had charges against him. Thus, intent on of the fugitive is generally not a factor in determining if extradition is legal. In addition, a person generally remains a fugitive until the demanding country has dropped the charges against him. The offenses for which a person may be extradited are determined by the clauses of the treaty. If there is uncertainty on the meaning of the clauses of the treaty, the asylum country generally determines whether a particular crime is included.
The offense must generally constitute a crime in both countries. The laws do not have to be exactly the same, but they must be substantially analogous. The fact that the requesting country lacks legal defenses or has a different burden of proof generally does not defeat extradition.
When a person is arrested in the United States and a foreign state seeks his extradition, certain proceedings are held and the fugitive is entitled to a hearing before being extradited. The purpose of these proceedings is to determine whether the fugitive can be extradited to the foreign country. Prior to arrest, a federal magistrate judge will decide if the alleged crime falls under a treaty signed by the United States, and the judge may then issue a warrant for the fugitive to be apprehended and brought before the court. Once the fugitive is before the court, the judge will decide if the evidence is sufficient to sustain the charge. This requires the court to make several clarifications. First, the offense must constitute a crime in the foreign country. Second, the person arrested for the offense must be the same person the foreign country seeks. Third, the charged offence must be included under the treaty. Fourth, the foreign state must prove that there is probable cause to believe that the fugitive committed the crime.
Probable cause is a relatively easy burden to prove, and circumstantial evidence is often enough for a court to find probable cause. If the evidence is sufficient, the magistrate judge will issue a warrant for the commitment of the fugitive until he can be returned to the foreign state. At this stage, a bail is usually denied.
The decision of a magistrate judge or district court to extradite a fugitive may generally be reviewed through habeas corpus review or in a declaratory judgment action. In addition, a fugitive who faces torture may have additional options for having his case reviewed. If the magistrate judge denies the request for extradition, the foreign state may generally not seek a review. Typically, the only recourse for the foreign country is to re-file the complaint against the fugitive.
While defending against an extradition request by a foreign country, a defense attorney has several options. First, a defense attorney may argue that there is insufficient probable cause to believe that the fugitive committed the crime. An attorney may also argue that the arrested person is not the person the foreign country seeks to extradite. Even when sufficient cause has been found, a fugitive may be discharged from custody in some situations. The Federal law allows the government to hold a fugitive for up to two months after the magistrate judge determines that he should be extradited. If two months elapse, the fugitive may seek to be discharged. The “two months rule” is not mandatory and courts will take all facts into account. If the fugitive delayed the extradition process through habeas corpus proceedings, he will most likely not be discharged. If the delay was due to the foreign country, the fugitive will generally be released.
Spain
Extradition is the official process whereby one country or state surrenders a suspected or convicted criminal to another country or state. Between nation states, extradition is regulated by Treaties.
Different rules apply within the EU (surrender) and outside the EU (extradition). In 2002 the EU created the European Arrest Warrant (EAW), a fast-track system for surrender of people from one EU country to another. It was rushed in as part of Europe’s response to the terrorist threat, and was meant to help tackle serious cross-border crime more effectively. Extradition treaties in force between Spain and other countries deal with cases that are considered serious offences according to Spanish criminal law.
Under Spanish law, extradition is not possible for citizens located in Spain for a charge that is not a crime in Spain. Extradition cannot be carried out unless the violation is an offense in both countries and punishable by imprisonment of at least one year.
Persons are only extradited after the Spanish National Court (Audiencia Nacional) has reviewed the case and determined that it meets the legal requirements for extradition. All extradition requests must meet the formal requirements in both countries.
It is important to note that, in urgent cases, a provisional arrest may be requested for extradition purposes. Such a request may be issued through the International Police Organization (Interpol) or via diplomatic channels. In case that the Spanish authorities are persuaded that the request meets the formal requirements of the applicable treaty or domestic law, the person to be extradited will be arrested and brought before the National Court. Later, a brief hearing will be held to take decisions regarding the personal status of the detainee and to inform him/her about the details of the extradition. The public prosecutor takes an important role in processing the extradition. At any stage of the process the wanted person may give free consent to be extradited. A second hearing will take place where the judge will decide, according to the circumstances of the case, whether extradition is appropriate or not.
After the approval of the extradition, it may be postponed if the wanted person is standing trial or already serving a prison sentence in Spain. Spain has requested the extradition of many individuals located in non-EU countries.
The Spanish court National Audience has dealt with many important Extradition and European Arrest Warrant cases such as the one of Augusto Pinochet. On the other hand, the Spanish authorities have denied many requests for extraditions from other countries after examining the specific circumstances of each case. The Spanish lawyer plays an important role on extradition cases. Legal representation by a local lawyer is required under the Spanish law.