UNTOC and UNCAC have expedited the process of extradition, which is becoming apparent. India should be seeing the same positive results soon.
Recent optimism in securing the extradition of Vijay Mallya from the UK can be diametrically contrasted with the pessimism prevailing with respect to Lalit Modi’s extradition. At that time extradition was thought of as a tortuous process. This, especially, in respect to Article 9 of the India-UK Extradition Treaty, 1993. Under this extradition can be refused, if the extradition request is a facade for the persecution of the person concerned, if it would be unjust or oppressive to extradite him, the trivial nature of offence, and a long delay in making the request or if the accusation has not been made in good faith in the interests of justice. In fact, the last was the ground on which Bollywood music director Nadeem Akhtar Saifi’s extradition was denied by the British House of Lords in 2000. Saifi was wanted for the murder of T-series honcho Gulshan Kumar in 1997.
The newspapers now report about the UK’s positive intent in the matter of Mallya’s extradition. In fact, it is very likely that the UK government’s intent may soon be seen in implementation. In 2015, the UK Court had allowed the extradition of “AFS” an Iraqi national to France. AFS was accused of being the principal of an organised network of migrant smuggling. AFS was convicted in absentia in December 2011, in Lille, France. The European Arrest Warrant was issued against him in March, 2013 and he was arrested in July, 2014. Similarly, UK extradited person “B” to the Netherlands in 2014 on basis of a European Arrest Warrant issued in 2012.
What has changed between the years 2000 and 2014/2015? The changed circumstances are engendered by two international Conventions, the UNTOC (2003) and UNCAC (2005), both ratified by India in 2011. These conventions facilitate effective international cooperation among state parties to bring the fugitives to justice through deportation or extradition. Deportation and extradition are two are different processes. In the former, a fugitive is sent back from a foreign country as he has no residency rights there. In extradition, the requesting country seeks physical custody of the fugitive from another country, on grounds of criminality. Extradition has no relationship with residency status of the criminal and there are instances where extradition is sought of foreign nationals.
In the pre-convention period certain principles such as that of speciality, dual criminality, nationality, jurisdiction, nature of offence and type of jurisprudence in the requesting country, were barriers, or prolonged the process indefinitely. Dual criminality requires that the criminal offence for which extradition is sought is also considered a crime in the requested state. For instance, requested states have declined extradition requests of India under Section 498A of the IPC, which relates to harassment of women for dowry, as the crime has no equivalent in their jurisprudence. The Principle of Speciality requires that the extradited person can only be tried for the criminal offence for which extradition was sought. Another ground for refusal is that the requesting state has the death penalty as a punishment for the crime, whereas the requested state has abolished it. Likewise extradition is refused on grounds of conflicting jurisdictional issue, whereby two countries lay claim on the same fugitive for the same or different crimes. Another major ground for refusal to extradite is on grounds of nationality. Extradition is also invariably denied for prosecution of political offences. For instance, Article 5 and 9 of the Extradition Treaty between India and UK, clearly and unambiguously carve out this exception. Lastly, extradition becomes an almost impossibility when there is no bilateral treaty/arrangement between the requesting and requested states.
The two Conventions have addressed these lacunae, to a large extent. UNCAC covers the crimes of bribery of public officials, national and foreign, private sector bribery and money laundering and in respect of extradition for the aforesaid crimes, overcomes some of major impediments, detailed above. Dual criminality and the Principle of Speciality are sought to be overcome under Article 44(2) & (3), which lay down that a state party to the UNCAC may permit extradition of a person for any of the offences covered by the Convention that are not punishable under its domestic law. Principle of Speciality is sought to be overcome by stating that extradition can be granted even for offences which are not strictly extraditable, by linking these offences to the main offence, which is extraditable.
The UNCAC has a deeming effect, that all offences under the Convention are deemed to exist in any pre-existing extradition treaty between states. UNCAC also deems that the offences under it will not be regarded as political offences. Equally importantly, if there is no extradition treaty, UNCAC can be used as the legal basis for extradition. UNCAC enjoins all States to expedite extradition procedures and simplify evidentiary requirements related to extradition under the Convention by requiring both requested and requesting states to engage with each other actively to present information relevant to the allegation. In fact, under Article 44 (10), the requested state can take into custody the person whose extradition is being sought. The Convention extends the principle of extra-territoriality to offences committed by its own nationals in other states. Thus, if a country refuses to extradite its own national, it is obliged to bring that person to trial in his own country. This is an implementation of aut dedere aut judicare, meaning extradite or prosecute. Article 16 of UNTOC gives the same breakthrough approaches to extradition in respect of all organised transnational crimes.
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UNTOC has been signed by almost 170 states. Likewise, with the exception of Belize, Suriname, Chad, Somalia, DPR Korea, all states have signed/ratified the UNCAC. With such a wide acceptance, it is felt that these two conventions have expedited the process of extradition, the results of which are already becoming apparent. India should be seeing the same positive results soon.
–– Mallika Mahajan is C&CE, Indirect Taxes Administration, while Pawan Kumar Sinha is ADG, DG NACEN, Vadodara