Extradition Treaty of UAE
In International Law, extradition is when one state (Requesting state) requests another state (Requested state), to effect the return of a person for trial for a crime punishable under the Requesting state's laws and committed outside the Requested state (state of refuge).
The extraditable person could be:
- charged with a crime but not yet tried;
- tried and convicted who have escaped custody; and
- those convicted in absentia.
Except for the protection of special national interests, states do not apply their penal laws to acts which are committed outside their boundaries as per the principle of territoriality of criminal law.
Extradition between countries is regulated by diplomatic treaties and within countries by extradition acts. Belgium, in 1833, adopted the first act providing for extradition.
Extradition acts primarily specify the extraditable crimes, clarify extradition procedures, and set out the relationship between the international treaties and extradition act. National laws vary regarding the relationship between extradition acts and treaties. In the US, extradition may be granted only pursuant to a treaty and only if Congress has not legislated to the contrary. A similar situation exists in Belgium, the Netherlands and Britain whereas Switzerland and Germany extradite without a formal convention in cases where the Requesting state and their governments have exchanged declarations of reciprocity. Fugitives are also sometimes surrendered by states solely as an act of goodwill. However, countries without extradition agreements with certain other countries have been considered as a haven for the fugitives. Certain principles of extradition are common to many countries. For instance, many states decline any obligation to surrender their own nationals. In Britain, the United States and Argentina, nationals may be extradited only if it is authorized by the governing extradition treaty. Another instance of a common principle is double criminality. This principle stipulates that the alleged crime for which extradition is being sought must be criminal in both the Requesting and the Requested countries.
The United Arab Emirates sends and receives numerous extradition requests every year. Extradition requests sent by the UAE are prepared and sent by the International Co-operation Department of the Public Prosecution. This department ensures that requests fulfil the conditions set forth in the governing law of Federal Law Number 39 of 2006 on Mutual Judicial Co-operation in Criminal Matters ("2006 law") which was passed to facilitate the UAE's co-operation with foreign and international judicial authorities. The 2006 law empowers federal courts and the Ministry of Justice, under enumerated circumstances, to provide information to foreign authorities regarding the identity and whereabouts of an individual, search persons and premises, seize property, and obtain information and evidence that might assist their foreign counterparts in conducting investigations or making extradition agreements. It also ensures that the documents are duly translated into the official language of the Requested country and that the request is sent through the proper diplomatic channels.
In respect of extradition requests received by the UAE from other countries, the relevant UAE court tries the matter to decide whether that request is in conformity with the relevant governing law, and accordingly, accepts the extradition of the subject of the request to the Requesting country. The competent court will refuse extradition if the extradition request fails to fulfil the conditions of the applicable law. Therefore, UAE courts are bound to apply the bilateral and multilateral treaties if these exist. Otherwise, they will resort to the domestic law regulating judicial co-operation to decide whether to accept or refuse a request for extradition.
Extradition can be a complex matter and is relatively simplified by the presence of treaties between the UAE and a significant number of countries that have strong relations with the UAE. The UAE fully understands the importance of international judicial co-operation and more precisely extradition in combatting crimes.
I. Extradition Treaty of UAE with KSA, Kuwait and Bahrain
Riyadh Arab Convention on Judicial Co-operation ("Riyadh Convention"), a multilateral treaty signed and ratified by the UAE for judicial co-operation was ratified in the UAE by Federal Decree Number 53 of 1999. The Riyadh Convention was signed by most Arab countries including Algeria, Bahrain, Iraq, Jordan, Kuwait, Lebanon, Libya, Morocco, Oman, Qatar, Saudi Arabia and Tunisia.
As per Article 38 of the Riyadh Convention, each contracting party undertakes to extradite persons found on its territory charged with having committed a crime by the competent authority or convicted of having done so by a judicial body of other contracting parties.
Article 39 of the Riyadh Convention deals with the extradition of nationals.
A contracting party may refuse to extradite its national provided that the state party within limits covered by its jurisdiction undertakes to charge the national who has committed a crime punishable by law in the territory of any other contracting party. The committed crime by the national must be one for which:
- the laws of the two states concerned impose a detention penalty of at least one year; or
- if a more severe penalty is foreseen in the laws of any of the two contracting parties.
Article 40 of the Riyadh Convention states the conditions for extradition as:
- The individual is charged with committing an act punishable by the laws of each of the two contracting parties (The Requesting state party and the Requested state party) where both laws provide for a detention penalty of one year or a more severe penalty.
- The individual is charged with acts not punishable by the laws of the Requested state party or where the penalty for the act under the laws of the Requesting state party has no correspondent under the laws of the Requested state party. The same penalty shall apply if the individual prosecuted is a national of the Requesting state party or a national of another contracting party whose laws provide for the same penalty as those provided under the laws of the Requesting state party.
- The individual is convicted in the presence or absentia by the courts of the Requesting state party where the crime imposes a detention penalty of one year or a more severe penalty, for acts punishable as per the laws of the Requested state party.
Nevertheless, there are crimes which are not subject to extradition as laid down in Article 41 of the Riyadh Convention:
- The crime for which extradition requested is a political crime or one limited to violating military duties. Crimes such as an assault on kings and presidents of the contracting parties or their wives or their ascendants or descendants, heirs apparent or vice-presidents of the contracting parties, murder and robbery committed against authorities, individuals or means of transport and communications, despite being of a political purpose, will not be considered crimes of a political nature.
- The crime for which extradition requested was committed in the Requested state party's territory, except if the crime caused damage to the interests of the Requesting state party and its laws provide that such crime be prosecuted and punished.
- The crime has been the subject of a final judgement in the Requesting state party.
- At the time the extradition request was received, the legal action was fortified, or the penalty was dropped due to passage of time.
- The crime was committed outside the Requesting state party's territory by a person not carrying its nationality, and the law of the Requested state party does not provide for prosecution when the crime is committed outside its territory.
- The Requesting state party has issued an amnesty.
- If charges relating to the crime have been made in the Requested state party's territory, or if a judgement was passed in respect of such crime in a third contracting party's territory.
Article 9 of UAE's 2006 law states similar legal obstacles (as mentioned in Article 41 of the Riyadh Convention) that will lead to non-extradition along with additional grounds for non-extradition such as:
- If significant grounds contribute to believe that the extradition request is aimed to prosecute or punish a person for reasons related to his ethnic or religious affiliation, or his nationality or political opinions.
- If the requested person underwent investigation procedures or trials for the same crime subject of extradition and was acquitted; or convicted but served the punishment for which he was judged.
- The person was subjected or could be subjected in the Requesting state's territory to torture, inhuman treatment, humiliating treatment or cruel punishment which does not conform to the crime.
As per Article 42 of the Riyadh Convention, the competent authority of the Requesting state party shall submit an extradition request in writing to the competent authority of the Requested state party along with other necessary documents and enclosures.
Article 43 of the Riyadh Convention permits the detention of the individual whose extradition is requested in case of urgency and based on a request by the competent authority of the Requesting state party. The individual shall be released if the Requested state party does not receive the necessary documents or a request to extend the detention within 30 days from the date of arrest. (Article 44 of the Riyadh Convention).
The multiplicity of Extradition Requests (Article 46 of the Riyadh Convention):
If the Requested state party receives several requests for extradition for the same crime, priority shall be as follows:
- The first priority shall be given to the Requesting state party whose interests were damaged by the crime.
- Next priority to the Requesting state party in whose territory the crime was committed.
- Next to the Requesting state party of which the individual to be extradited was a national at the time of committing the crime.
However, if circumstances converge priority shall be accorded to the first Requesting state party to submit the extradition request. If the extradition requests relate to multiple crimes, weighing them shall be based on the circumstances and seriousness of the crime and the place in which it occurred.
UAE has set up a five-stage judicial mechanism to enable the person requested for extradition to challenge the extradition process as follows:
- The Local Interpol Authorities in the UAE.
- The Public Prosecution heading the International Judicial Matters
- The Court of Appeal
- The Cassation Court
- The Ministry of Justice & The Ministry of Interior
II. Extradition Treaty of UAE with India
Law relating to extradition in India is governed by the Extradition Act, 1962 (the "1962 Act") and the Extradition Treaties operating between India and other countries. Section 34 of the 1962 Act states extra-territorial jurisdiction, that is, an extradition offence committed by a person in a Foreign State shall be considered to have been committed in India and is liable to be prosecuted in India for such offence. Under Section 216 of the Indian Penal Code, 1860 read with the Constitution of India, 1950 (Schedule VII, List I, Item 18), extradition may be defined as, the action of giving up a fugitive criminal to the authorities of the State in which the crime was committed. Section 3(4) of the 1962 Act categorically states that, in the absence of an extradition treaty between India and any Foreign State, the Central Government may, by notified order, treat any Convention to which India and the Foreign State are parties, as an extradition treaty providing for extradition as specified in that Convention. As per Section 2(f) of the 1962 Act, only "fugitive criminals" may be extradited. Fugitive criminal, as per the extradition law prevailing in India means a person who is accused or convicted of an extradition offence which was committed within the jurisdiction of a Foreign State, and a person who while in India, conspired, attempted to commit, incited or participated as an accomplice in the commission of an extradition offence in the Foreign State. As per Section 2(c) of the 1962 Act, an extradition offence is an offence which is provided in the extradition treaty with the Foreign States. In case of absence of a treaty, an extradition offence is an offence punishable with imprisonment for a minimum term of one year as per the laws prevailing in India or of a Foreign State. Section 2(a) of the 1962 Act defines a composite offence as, an act or conduct of a person occurring wholly or in part in a Foreign State or in India, effect of which (or intended effect which) taken as a whole constitutes an extradition offence in India or in a Foreign State.
For the surrender of a fugitive criminal, a requisition is to be made to the Central Government by:
- A diplomatic representation by the Foreign State, at Delhi; or,
- The Government of the concerned Foreign State may communicate with the Central Government through its diplomatic representation in that State; or,
- By other modes settled by arrangements ensuing between India and other countries.
The Central Government may then, if it thinks fit, order for an inquiry by a Magistrate. The Magistrate shall issue an arrest warrant for the fugitive criminal under Section 6 of the 1962 Act. After the Magistrate has enquired the case, if a prima-facie case is made out in support of the requisition, the Magistrate may commit the fugitive criminal to prison; shall report the result of the inquiry along with the written submission, if any, filed by the fugitive criminal to Central Government for consideration. However, if a prima-facie case is not made out in support of the requisition, then, Magistrate shall discharge the fugitive criminal. Upon satisfaction qua the prima-facie report of the Magistrate, the fugitive criminal may be surrendered to the Foreign State.
As per Section 31 of the 1962 Act, a fugitive criminal shall not be surrendered or returned if, the offence is political in nature; the prosecution of offence is barred by time in the Foreign State; if the person is accused of any offence in India, other than the offence for which extradition is sought, or is undergoing sentence under any conviction in India until after he has been discharged, whether by acquittal or on the expiration of his sentence or otherwise; and until the expiration of 15 days from the date of his being committed to prison by the Magistrate.
Under Section 34A of the 1962 Act, if the Central Government is of the opinion that a fugitive criminal cannot be returned or surrendered, pursuant to a request for extradition by the Foreign State, the Central Government, if it deems fit and proper, can take steps to prosecute such fugitive criminal in India. A provisional arrest is provided under Section 34B of the 1962 Act as upon urgent request from the Foreign State; the Central Government may request the Magistrate (having competent jurisdiction) to issue an immediate provisional warrant for the arrest of the fugitive criminal. The fugitive criminal is to be released upon the expiration of 60 days if no request qua his surrender or return is received, within the period of 60 days. The 1962 Act also makes provisions for the multiplicity of requests from more than one State for the surrender of a fugitive criminal. Section 30 of the 1962 Act stipulates that "if requisition for the surrender of a fugitive criminal is received from various foreign States the Central Government may, considering the circumstances of the case, surrender the fugitive criminal to such State as the Government thinks fit." However, treaties between India and the Kingdom of Bahrain, Kuwait, the Sultanate of Oman, the UAE and Uzbekistan all consider requests priority wise.
Section 34C of the 1962 Act provides that, where a fugitive criminal has committed an extradition offence punishable with the death penalty in India, is surrendered or is returned by the Foreign State on request of the Central Government (India); and the laws of the Foreign State do not provide for death penalty qua the offence for which the fugitive criminal is convicted, then the fugitive criminal shall be liable for the punishment of life imprisonment qua the offence. There is no provision of statutory appeal vis-à-vis extradition proceedings in the 1962 Act. For the redress of any grievance against any order vis-à-vis extradition proceedings, the writ jurisdiction of the High-Court concerned has to be invoked.
In 1999, the United Arab Emirates and India had entered into an agreement on mutual legal assistance in criminal suits. In 2000, the two countries signed an extradition treaty. The individual requested to be extradited must be accused of an offence in the country requesting the extradition. Moreover, such an offence must be punishable under the laws of both India and the UAE with imprisonment for minimum one year, or the person has been sentenced by the court of the other country for minimum six months.
India, like many other countries, adheres to the principle of not extraditing its own nationals. Indian nationals who return to India after having committed offences in the Gulf countries are not to be extradited to those countries. Such accused Indian nationals are liable to be prosecuted in India in accordance with Indian Law, as the bilateral treaties with these States (except Oman) preclude extradition of own nationals. India follows a dual system and extradites nationals on the basis of reciprocity where, if the other Treaty State does not extradite, India too bars extradition of its own nationals.
The importance of a formal extradition arrangement can be validated by the fact that the absence of it may lead to rejection of the extradition requested by a state. This was witnessed when the lack of a formal agreement between India and Argentina was a primary reason for Argentina's denial of extradition of Ottavio Quattrocchi, who was wanted in India in relation to the infamous Bofors case.
Extradition is a critical process to bring back those accused of financial crimes and corruption to stand trial. It is a laborious and time-consuming process which is eventually subjective to the benevolence the foreign state, but extradition is the only way to bring back the accused persons who are evading the grasp of justice.
Originally published July 14, 2020.
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