KIIT LAW SCHOOL

A PROJECT REPORT ON
EXTRADITION

UNDER GUIDANCE OF
MR. ABHISHEK MISHRA AND MR.RAMCHANDRA NAIR
LECTURER, KIIT LAW SCOOL, BHUBANESWAR

BY MOUSAM RANJAN DASH, BSc.LLB, ROLL.NO. 884006, FOURTH SEMESTER, SECOND

YEAR.
Contents
Contents...................................................................................................................... 2
EXTRADITION: MEANING AND DEFINITION...................................................................2
PRINCIPLE OF EXTRADITION AND ITS BASIS................................................................3
DOES EXTRADITION IMPOSE ANY DUTY ON STATES?..................................................3
Factor v. Laubenheimer, 290 U.S. 276 (1933)............................................................4
DISTINCTION BETWEEN EXPULSION AND EXTRADITION .............................................4
ESSENTIAL CONDITIONS OF GRANTING EXTRADTION OR RESTRICTIONS ON
SURRENDER.................................................................................................................6
RESTRICTIONS ON SURRENDER UNDER INDIAN LAW..................................................7

EXTRADITION: MEANING AND DEFINITION

In general a state can exercise its jurisdiction within its territory only. This
means the jurisdiction of states has certain limitation. So taking a very layman
man approach let’s try to understand what if an individual commits a crime in
one state and after committing the crime he fled away to another state. So can
the state where the crime is committed exercise its jurisdiction upon this
individual in another state? The answer will raise the principle of extradition.
Before approaching towards its principle, it becomes necessary to understand
and know the meaning and definition of extradition.

Extradition is the delivery of an individual, to the state where he has

committed or has been convicted of an offence or crime, by the state where
the individual happens to be for time being. According to J.G. Starke, the
term extradition denotes whereby under a treaty or on a basis of reciprocity a
state surrenders an individual to another requesting state of a person accused
or convicted of a criminal offence.

The nature of such treaty is bilateral. According to the section 2 of Extradition

act 19621, the definition says as follows;

PRINCIPLE OF EXTRADITION AND ITS BASIS

The inability of a state to exercise its jurisdiction within the territory of another
state became the basis to the principle of extradition. There was a basic social
need among the states for the maintenance of law and order and that was only
possible if there would be cooperation between the states in the administration
of justice. So in order to establish law and order in the society and bring peace
there was a social need and thus the principle of extradition was recognized.
The awareness among the national decision makers leads to the widespread
practice of jurisdictional cooperation, returning an accused or who has been
convicted of a crime to the state in which the crime was committed.

DOES EXTRADITION IMPOSE ANY DUTY ON STATES?

International law does not recognize any general duty of states regarding
extradition. Extradition depends upon existing bilateral treaties between
1
The Indian extradition act,1962
states. The Court in general has always held that the principles of international
law recognizes no right to extradition apart from the treaty while the
government may, if agreeable to its own constitution and law, voluntarily
exercise the power to surrender a fugitive from justice to the country to which
he fled. The legal right to demand his extradition and correlative duty to
surrender him to the demanding state exist only when created by treaty.2 This
is because states have always upheld their right to asylum to foreign
individuals as an inference from their territorial supremacy, those cases where
a treaty imposes an obligation to extradit them. There is no universal rule of
customary international law in existence which imposes the duty of extradition.

DISTINCTION BETWEEN EXPULSION AND EXTRADITION

Detention with a view to extradition

The detention of a person (already having entered the country) must have the
sole ground of a view of extradition/deportation, to prevent a falsification of
the ground for detention. “The lawfulness of the detention with a view to
extradition was an issue in Bozano v. France3, where the Court found that the
applicant’s detention was unlawful. The Court decided that the deportation of
the applicant from France to Switzerland was arbitrary: although a French
court had refused Italy’s request for the applicant’s extradition, the French
government made a deportation order against him; the authorities waited
about a month before serving the deportation order, prevented the applicant
to use any judicial avenue, to contact his wife and lawyer or to nominate a
country for deportation; the applicant was forcibly taken by police across
France to the Swiss border, taken into custody in Switzerland and later
extradited to Italy. The Court found that the circumstance of the case proved
that the applicant’s detention was a disguised form of extradition that could
not be justified under the Convention.

2
Factor v. Laubenheimer, 290 U.S. 276 (1933)

3
Bozano v. France, 9990/82, Council of Europe: European Court of Human Rights, 2
December 1987, available at: http://www.unhcr.org/refworld/docid/4029fa4f4.html
Viewing the circumstances of the case as a whole and having regard to the
volume of material pointing in the same direction, the Court consequently
concludes that the applicant's deprivation of liberty in the night of 26 to 27
October 1975 was neither "lawful", nor compatible with the "right to security of
person". Depriving Mr. Bozano of his liberty in this way amounted in fact to a
disguised form of extradition designed to circumvent the negative ruling of the
Limoges Court of Appeal, and not to "detention" necessary in the ordinary
course of "action ... taken with a view to deportation".

Detention with a view to deportation

“The lawfulness of the detention with the view to deportation was examined in
Dougoz v. Greece4, where the Court found although there was a legal basis for
deportation in the national law, the Court observed that the expulsion was
ordered by another body than the one provided by the national law, following
the opinion of a senior public prosecutor concerning the applicability by
analogy of a ministerial decision on the detention of persons facing
administrative expulsion; and that the “public danger” requirement in the
national law was not fulfilled. In addition, the Court held that the opinion of a
senior public prosecutor concerning the applicability by analogy of a ministerial
decision on the detention of persons facing administrative expulsion did not
constitute a “law” of sufficient “quality” within the meaning of the Convention.

Dougoz v. Greece

4
Dougoz v. Greece, 40907/98, Council of Europe: European Court of Human Rights, 8
February 2000, available at: http://www.unhcr.org/refworld/docid/3e7203d14.html
“In this connection the Court recalls that in laying down that any deprivation of
liberty must be effected “in accordance with a procedure prescribed by law”,
the arrest or detention has a legal basis in domestic law. However, these words
do not merely refer back to domestic law; they also relate to the quality of the
law, requiring it to be compatible with the rule of law, a concept inherent in all
Articles of the Convention. Quality in this sense implies that where a national
law authorizes deprivation of liberty, it must be sufficiently accessible and
precise, in order to avoid all risk of arbitrariness.

ESSENTIAL CONDITIONS OF GRANTING EXTRADTION OR RESTRICTIONS

ON SURRENDER

i. Non extradition of political criminal

ii. Extradition is not allowed for military criminals

iii. Also for religious criminals extradition is not granted

iv. The rule of specialty

1. A person extradited under the present Treaty shall not be proceeded

against, sentenced, detained, re-extradited to a third State, or
subjected to any other restriction of personal liberty in the territory of
the requesting State for any offence committed before surrender other
than:

(a) An offence for which extradition was granted;

(b) Any other offence in respect of which the requested State consents.
Consent shall be given if the offence for which it is requested is itself subject
to extradition in accordance with the present Treaty.

2. A request for the consent of the requested State under the present
article shall be accompanied by the documents mentioned in paragraph
 2 of article 5 of the present Treaty and a legal record of any statement
made by the extradited person with respect to the offence.

3. Paragraph 1 of the present article shall not apply if the person has had
an opportunity to leave the requesting State and has not done so within
[30/45] days of final discharge in respect of the offence for which that
person was extradited or if the person has voluntarily returned to the
territory of the requesting State after leaving it.

v. Double criminality

vi. There should be sufficient evidence for crimes relating extradition, in

other words, the crime should be such that it should appear to be a
crime prima facie

vii. For the extradition it is also necessary that certain other prescribed
formalities should be fulfilled.

viii. The conditions and terms mentioned in the extradition treaty should be
generally fulfilled

ix. When a person is charged with having been an accessory in a crime

committed in a foreign state which seeks his extradition.

RESTRICTIONS ON SURRENDER UNDER INDIAN LAW

Section 31 of the Indian Extradition act 1962 provides certain restrictions on

surrender of fugitive criminals. These restrictions are as follows;
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