Process of Extradition of Fugitives

INTRODUCTION:

Extradition is a diplomatic process in which a country requests another to deliver a fugitive where a fugitive isone who escapes from one country to another to relieve himself of the punishment for the crime that he committed, a person though not physically present but aids the commission of a crime in a country from another country is also within the meaning of a fugitive.  As per international norms, the process of extradition between countries may be initiated in the presence of a bilateral or multilateral treaty in which a list of offences are mentioned which may be the only cases in which a request for extradition may be entertained however, countries are now adopting the system of dual criminality which means the act done by the fugitive must be punishable in both the countries.  However, in the absence of a treatya separate agreement of extradition may be entered into by the countries for the extradition of that particular person. 

PROCEDURE FOR INITIATING EXTRADITION PROCESS:

The administrative body which deals with external affairs of the requesting country may initiate the process by submitting an affidavit requesting the delivery of the fugitive.  The affidavit must contain the following:

• A clear description of the nature of the offence that he committed along with all supporting documents and evidence.
• A detailed description of the fugitive along with documents certifying his identity.

Once the foreign country accepts the affidavit, they commence the inquiry and pass orders.

ISSUANCE OF RED NOTICE:

Red notice is one which is served to the law enforcement agencies worldwide to locate the fugitive and arrest him provisionally.  This notice containsa detailed description of the offence and the documents certifying the identity of the fugitive. 

However, the fugitive may approach foreign courts to challenge his extradition order.  Once the order is finalised the accused is handed over to the requesting country.  Owing to the principle of “pacta sunt servanda” both countries are expected to abide by all the terms and conditions of the treaty or agreement even after accused is handed over.

CIRCUMSTANCES UNDER WHICH A REQUEST FOR EXTRADITION MAY BE DENIED:

A request for extradition may be denied by a foreign country owing to its domestic laws which press upon human rights and various other conventions which the country has ratified.  Some of the circumstances may include:

• Political offences which prejudices the interest of the State.
• When the fugitive is the national of the country to which the request is made.
• Offences in which death penalty may be imposed.
• When there arises an issue of double jeopardy
• When there is a possibility of torture, inhuman and degrading treatment if the fugitive is delivered. 

However, the term inhuman and degrading treatment is given a wide interpretation when it comes to extradition.  In a landmark judgment of ECHR, it was held thatpoor prison condition amounts to inhuman treatment and therefore the request was denied.[1]  Also in the famous case of Vijay Mallya, the UK Court asked India to submit a video of the premises of Arthur road jail in Mumbai as his lawyer claimed that the prison was not properly maintained. 

ALTERNATIVES TO EXTRADITION:

• The fugitive can waive his extradition process and surrender himself.
• Deportation, this is more of an informal way adopted by countries.
• Extraordinary rendition is a situation where the fugitive is denied access to judicial process.
• Foreign prosecution is initiated when the fugitive is a foreign national.  Instead of extradition the foreign country may prosecute the fugitive themselves.

[1] Soering v. United Kingdom, Application no. 14038/88.