This article is written by Udita Prakash, from UPES, Dehradun. This article deals with the meaning of rendition and extradition of immigrants, its purpose, and procedure under the Indian Extradition Act, 1962. This article also dealt with the treaties related to immigrants between India and the UK.
Table of Contents
Introduction
Criminals have it easy in today’s time. After committing a crime in one’s own state, there is a good chance that the person will flee to another state. These cases are beginning to occur more frequently as a result of the development of air service as it’s easy nowadays to travel from one place to another or one country to another. The question arises whether the fugitive will be tried in the country where he fled, or in the state where the crime was committed.
Under international law, deportation requires one state to return the custody of a fugitive to another state for a crime committed outside the jurisdiction of the country in which the person was evacuated, punished by the law of the requesting country which is a formal diplomatic process. Extradition is an obligation of the state in good faith to promote and carry out justice.
Countries are usually in a position where it is difficult to punish those who commit crimes elsewhere, primarily due to lack of jurisdiction, so such persons may be handed over to the country in which the crime was committed. The surrender of the accused or the convicted person is called extradition.
Rendition and extradition intricacies under International Law
The term ‘extradition’ comes from the two Latin words – ex and tradium’. In general, it can mean ‘criminal surrender’, or ‘fugitive surrender’. Extradition can be defined as the surrender of an accused or convicted person to a country in which they have committed a crime or the country where the crime or offence was allegedly committed or the country that has jurisdiction over that particular act or omission. According to Oppenheim, “extradition is the delivery of an accused or a convicted individual to the State on whose territory he is alleged to have committed or to have been convicted of, a crime by the state on whose territory the alleged criminal happens for the crime to be”.
Purpose of extradition
- Extradition is the process of suppressing crime. Generally, a person cannot be punished or prosecuted in a country where they are fleeing due to lack of jurisdiction or some technical rules of criminal law. Therefore, the criminal is handed over so that the crime committed by them can be punished under the law.
- Extradition acts as a warning that criminals cannot escape punishment by fleeing to another state. Therefore, handing over has a deterrent effect.
- Extradition is based on reciprocity. Countries that are required to surrender today may have to demand the extradition of criminals in the future.
- Extradition is executed to step closer towards achieving international cooperation in solving problems of international and social nature. Therefore, it meets one of the purposes of the United Nations as set out in Article 1, Paragraph 3 of the UN Charter.
The procedure for extradition under the Indian Extradition Act, 1962
The Government of India currently has bilateral extradition treaties with 42 countries and extradition treaties with nine more countries to speed up and facilitate the extradition process. In India, the delivery of fugitives from the country to foreign countries, or vice versa, is subject to the provisions of the Indian Extradition Act of 1962. The basis for delivery is a treaty between India and a foreign country and an arrangement for personal transfer. Under Section 3 of the Act, the government may issue notices extending to the countries notified of the provisions of the law.
The legal basis for the extradition of criminals with countries where India has not signed extradition treaties (non-treaty countries) is set out in Section 3(4) of the Indian Extradition Act. 1962, where India and the foreign countries are parties to the extradition by a notified order. An extradition treaty by India with the foreign country provides for extradition for crimes specified in the treaty. India is also a party to the International Convention for the Suppression of Terrorists Bombing (1997). It also provides the legal basis for the delivery of terrorist crimes.
In May 2011, the Indian government ratified two UN treaties – the United Nations Convention against Corruption (UNCAC), the United Nations Convention against Transnational Organized Crime (UNCTOC), and their three protocols.
If there is an extradition treaty between the interested countries, the extradition request must be made in terms of that particular requirement. Regarding the issuance of comprehensive guidelines for overseas investigations and inter-administrative support issued by the Ministry of Interior (UAE), a request for delivery is to be issued only after the presentation of the accusation letter, knowledge of the accusation, and the issuance of the arrest warrant. If the accused is arrested and brought to court in India, all the necessary measures will be taken throughout the delivery process.
Therefore, after the investigative agency submits the imputation sheet, if the Justice of the Peace recognizes it, it issues an order/indication justifying the defendant’s approval to the trial and indicates the existence of the defendant facing the trial. Upon request, delivery will be carried out to the Ministry of Foreign Affairs (Netherlands). When issuing such an order to arrest the accused, the justice of the peace is governed by the above considerations.
Treaty between India and the UK
According to Article 1 of the Extradition Treaty between India and the United Kingdom, it is the duty of India and the UK to extradite any person being accused or convicted of an extradition offence committed within the territory of one State, either before or after the entry into force of this treaty. Each contracting state shall offer mutual assistance in criminal matters.
Extradition offences are defined as offences that impose at least one year of imprisonment under the laws of contracting parties. However, it excludes crimes of political nature and includes serious crimes, such as robbery and murder that are entirely related to financial nature, cause explosions, terrorism, etc.
If the person is being tried for extradition in the requested state court, or if the defendant is convinced that the indictment in the requested state is unfair, oppressive, disadvantageous, or discriminatory, extradition requests may be rejected in such a case.
If a person or an organization is targeting someone who has already been convicted, then a certificate of conviction is required for the same. In an emergency, the person may be provisionally detained by the requested country or state until the extradition request is processed. However, if the person does not request to be handed over, then he/she may be released 60 days after the date of arrest. Once a person has been handed over to the requesting country within 45 days, they may only be prosecuted for the requested offence, misdemeanour, or offence agreed by the requested country.
One can refuse that they had committed a crime that carries the death penalty in the requesting country, and so that person will not be sentenced to death in the requesting country for the same crime. If the extradition is approved, the requested country will deliver the defendant at the designated time, or the requested country will deliver the person from the territory within one month or as specified.
Immigrants and their status
There is no clear and universally agreed definition of immigrants, sometimes it is also referred to as international immigrants. According to the Office of the “United Nations High Commissioner for Human Rights” (OHCHR), some human rights groups and experts distinguish between international migrants and internally displaced persons, also called the migrants who have been forced to relocate or who have voluntarily relocated to improve their situation. Therefore, in general, international law refers to those who have voluntarily moved into the state to improve their situation, those who have been forced to evacuate within the state, or those who have voluntarily moved because of personal reasons. People who are at the border and are forced to cross borders to improve their situation. Thus, this defines migrants as cross-border people, either because they were forced to migrate or because they decided to migrate voluntarily. The International Convention on the Protection of the Rights of Migrant Workers and Their Families (ICRMW) defines migrant workers under Article 1 as “people employed, engaged or engaged in paid activities in the state”. It is the most comprehensive treaty on the rights of migrant workers, explaining the civil and political rights of migrants, as well as their economic, social, and cultural rights documented, both of the workers, and their families, although, some provisions apply specifically to irregular or undocumented migrants. In addition to ICRMW, several other international documents also protect the migrants in the workplace. ILO Employment and Immigration Convention specifically protects migrant workers and guarantees basic rights such as access to medical care and general rights. Various universal human rights treaties and basic ILO treaties establish workers’ rights to fair working conditions and equal wages, the ability to form and join trade unions, and access to social security.
Rights of immigrants
These are the following rights available to immigrant workers.
Right to life
States are obliged to mitigate the loss of life at land-sea border crossings. In general, in accordance with International Human Rights Law and the Law of the Sea, the state is obliged to protect and guarantee the right to life of people at sea within their territory or at the intersection of vessels at sea. In particular, the Law of the Sea has developed provisions for the rescue and protection of people, including migrants lost at sea. For example, Article 98 of the United Nations Convention on the Law of the Sea (UNCLOS) imposes an obligation on captains to assist those who are at risk of being lost at sea and to rescue those who are suffering when informed of their need. On the condition that such actions do not seriously endanger the ship, crew, or passengers. UNCLOS Article 98 (2) states that coastal states have an active obligation to cooperate with neighbouring countries to promote effective search and rescue services.
Protection against arrest and detention
Article 16 (4) of the ICRMW specifically protects migrant workers and their families from the arrest or detention by arbitrary individuals or groups. The Migrant Workers Commission is legally stipulated, “pursuing a legitimate purpose under ICRMW, necessary in certain circumstances and legitimate so that the arrest or detention is not arbitrary. It must be proportionate to the purpose. Furthermore, CMW states that the criminalization of illegal immigrants does not constitute a legitimate interest in the regulation of illegal immigrants. It can convert legal administrative detention into arbitrary detention if the state exceeds the legitimate period of detention.
Protection against collective expulsion
The ban on mass exile also applies to migrants intercepted at sea. The Migrant Workers Commission states that the obligation applies to all regions where the State has effective control, including vessels on the high seas. The European Court of Human Rights may return 24 people, along with about 200 people intercepted on the high seas, to a country at risk of torture or cruel, inhuman, or degrading treatment. Although the decision did not explicitly discuss a ban on collective expulsion, the ECHR confirmed that state obligations under International Human Rights Law apply to situations where migrants have been intercepted at sea.
What awaits in the future
India has a strong regulatory framework for the delivery of syndicated crimes, but other criminal loopholes have also been discovered. The number of fraud cases increased to about 6,000 between 2017 and 2018. Due to the enactment of the Corruption and Economic Crimes Act, no runaway economic criminals were counted until 2018. In 2019, the banking and financial sector suffered a staggering 41,000 losses as a result of fraud.
The best examples of recent fraud cases include the cases of Vijay Mallya and Nirav Modi, who are currently facing delivery procedures. In light of these fugitives taking advantage of loopholes for their benefit and fleeing from India, the Corruption and Economic Crimes Act, 2000 is an Indian law that requires runaway economic criminals to evacuate to other jurisdictions.
After China enacted National Security Law in Hong Kong, several countries such as the United Kingdom, Australia, and New Zealand suspended extradition treaties with Hong Kong. These actions have led to the declaration of the scope of national security law covering global criminal jurisdiction over overseas activities, the creation of special institutions and judges personally selected for prosecution, and a new series of extremists. It takes place after the relevant punitive judgment.
Abu Salem’s extradition case
India does not have an extradition treaty with Portugal. However, when Abu Salem, a defendant of the 1993 Mumbai explosion and a gift from the underground world, fled to Portugal with his wife Monica Bedi in the absence of the treaty, Portugal later handed over Abu Salem to India. He would not be sentenced to death. The Superior Court of Portugal issued an order on July 14, 2004, together with the reasons for his surrender to India. His wife was also handed over to India.
United States v. Rauscher (1886)
In this case, the defendant was handed over for murder but was tried and convicted in the United States for less than cruel and unusual punishment for the crew. He appeals to the United States Supreme Court, overturns the conviction, and releases the prisoner because he cannot prosecute the prisoner for the crime that was delivered unless otherwise provided in the treaty. Reasonable time to return to the country where he was delivered.
Conclusion
To conclude, International and cross-border crime present unique challenges regarding discovery, arrest, delivery, and prosecution. Given the increasing number of syndicated crimes worldwide, it has become very important for countries to define their rights and obligations in the fight against international crime and to establish procedures associated with the legitimate process of law. To promote this goal, many countries have adopted a comprehensive extradition framework. Delivery refers to the diplomatic and formal process of returning custody of a fugitive to a crime committed outside the jurisdiction of the country in which the fugitive has been evacuated and authorized by the law of the requesting country. The international transfer process is influenced by two factors: the existence of a binding transfer agreement and the laws of the local government of the country in which the transfer is required. However, the delivery process may occur in good faith and without agreement or arrangement between the two countries.
References
- https://economictimes.indiatimes.com/news/politics-and-nation/abu-salems-case-shifts-to-terms-of-extradition-with-portugal/articleshow/60416324.cms
- http://www.echr.coe.int/Documents/Handbook_asylum_ENG.pdf
- http://www.ilo.org/wcmsp5/groups/public/—ed_protect/—protrav/—migrant/documents/publication/wcms_385582.pdf
- http://www.ohchr.org/Documents/Issues/Migration/GA69thSession/A-69-277_en.pdf
- https://www.latestlaws.com/articles/extradition-laws-processes-and-recent-developments/
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