This article is written by Shivani Bharti, pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho.com.

Introduction

Law on Extradition across the world is based on international treaties among countries to deter transnational crime. While it is paramount to outlaw international criminals, it is also important to expand human rights in the extradition law, seeing that the law has been progressing insofar the demand to prosecute the accused individuals which has led them to seek justice under international regime. The Extradition law is therefore a synergy of international and national law. It is regulated within countries by extradition acts and between countries by diplomatic treaties, and with the change in inter and intra country dynamics- the extradition laws have been amenable. Therefore, there is a need to strike a fine balance between the scope of human rights of an accused and the requirement to address a transnational crime which includes terrorism, organized crime, human trafficking, etc.

It is pertinent to look into decades of development of human rights concern in extradition law in order to decipher its scope in bilateral and multilateral treaties. While we are at it, the significant Soering v. United Kingdom case needs to be looked over. This landmark case broke new grounds in the field of human rights and extradition law, and the law of treaties.

What is the Soering case

Jen Soering and his girlfriend Elizabeth Haysom killed two Canadian Nationals who also happened to be Haysom’s parents, in 1985; reason being, the old couple were vehemently against their relationship and they promised to do anything to prevent it. The pair at the time were students of University of Virginia. Soering, eighteen years old fellow, belonged from Germany. After the incident, the suspects disappeared from Virginia and the two were later arrested in England for cheque fraud, where they were interviewed by a police investigator from Virginia. In the interview, Soering, in a sworn affidavit, admitted to killing Ms. Haysom’s parents.

Thereafter, the authorities indicted him with capital and non-capital murder charges and a warrant was issued for his arrest just after he finished his prison sentence for cheque fraud in England. The indictment meant that Soering faced a probable death sentence in the United States. Wherefore, the United States solicited extradition of the couple under existence of Extradition Treaty of 1972 between the USA and UK, as a consequence of which a conflict arose, because the death penalty had been abolished in England. This led to UK seeking assurances from the USA that death penalty would not be pursued in case of conviction of Soering in USA aftermath extradition.

During his imprisonment, Soering was furthermore interviewed by a German prosecutor, to whom he swore that he never had the intention of killing the couple and that he could only remember inflicting wounds which could have later caused their deaths. Thereafter, Germany on account of the convict’s German nationality sought for his extradition pursuant to the existence of the Extradition Treaty of 1872 between Germany and the UK. The UK however decided that the case will be continued in the USA by reason of assurances obtained from America that a representation would be made at Soering’s trial that it was the wish of the UK government that death penalty would not be imposed. In furtherance, the USA sought assurance from Virginia that the UK’s wish be honoured, however, later on Virginia signified UK that it is intending to impose death penalty.

While the convict was awaiting his extradition order, a psychiatric test result suggested that Soering was suffering from mental abnormalities at the time of murder which would constitute as a defense for murder charges in UK. Still the magistrate did not spare him and ordered to await the secretary of State’s order for extradition to the United States. The secretary’s order came in affirmation.

Thereafter, Soering made numerous petitions to stop his extradition. Added to that, he made a case against the UK in an application to the European Commission of Human Rights (the Commission) under Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms, alleging that the extradition would cause the UK to breach its obligations under Articles 3, 6 and 13 of European Convention on Human Rights (ECHR).

What were the implications of the Soering case

Before diving into discussing the implications of the Soering case, it is important that we understood what the concerning Articles 3, 6 and 13 of ECHR has to say.

Article 3 says that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. On this ground, Soering claimed that if he be extradited, he would be exposed to “Death-row Phenomenon.” The judgment of this case under Article 3 wherefore established the non-refoulement principle. The court after taking into account the aforementioned phenomenon adjudged that the extradition of a person from an ECHR obligatory party to another country where there is a serious risk that he could be subjected to torture or to inhuman or degrading treatment or punishment would amount to a violation of Article 3. In likewise episodes after the case, ECHR member states no longer extradite individuals without adequate assurances that they will not be subjected to death penalty.

Article 6 speaks about the right to a fair trial. Soering claimed that “the absence of legal aid in Virginia to fund collateral challenges before the Federal courts . . . he would not be able to secure his legal representation.” He also claimed that during extradition proceedings before Magistrate, the evidence of his psychiatric condition during homicide was not taken into account which further violated his rights under Article 6. The Court pronounced that the facts of the present case did not testify a flagrant denial of a fair trial and because he did not plead about his mental condition to the European Commission of Human Rights before, the court had no jurisdiction to entertain the matter of his testimony of psychiatric disorder.  

Article 13 says that everyone whose rights and freedoms as set forth in the Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity. Soering claimed that “no effective remedy in the United Kingdom existed in respect of his complaint under Article 3” hence his rights protected under Article 13 were violated. In response, the request of remedy was declined on the basis of procedural failure and also that this right is guaranteed to a person in national and not international scope. The Court concluded that Soering’s complaint before the court was not arguable as Article 13 did not encompass potential violations of ECHR because granting relief in anticipation of a violation would create hurdles to provide remedy.

Insofar the application brought under article 3, 6 and 13 of ECHR, the Court granted Soering’s application. It was conclusive that Soering’s extradition to the USA would amount to violation of the convention. Therefore, only upon getting official assurance from the USA that the death sentence would not be imposed, in1990, Soering was extradited to the USA where he was further convicted to serve two life sentences. It is safe to say that the policy of non-refoulement panned out well for the convict since he was successful to protect himself from capital punishment. Added to that, the underlying rationale of the present case set forth the responsibility of contracting states in extradition treaties in a manner it could be held liable for a breach of foreseeable risk that an individual can face in a third State.

How has the judicial scrutiny of human rights been expanded in the extradition cases

The ruling in Soering’s case had many ramifications. While it undeniably expanded the scope of debate in extradition law all over the world, it also unfastened a controversy of protection of human rights in the very law.

On a generic level, extradition is construed to be an arrangement in which a person convicted of a crime is surrendered from an obligatory State to another contracting State where the convict committed the said crime, for trial and punishment. Without this effective arrangement, criminals are bound to flee across national borders without the fear of prosecution, therefore, extradition is necessitated in the interest of the society that offenders should not be allowed to escape justice. While we are at it, it is also important to realize that interests of individuals are at high stake in matters of criminal justice for the reason of threat to their life and liberty, which is why international jurisprudence is concerned in pivoting on the issues of human rights of individuals facing criminal process in extradition.

The landmark judgement of Soering orchestrated significant responsibilities of contracting parties to treaties in the extradition process in the direction of human rights. Apart from the responsibility of the receiving State, it also outlined the responsibility of the requested State for the aftermath treatment of the convict if the fugitive is extradited, as explained under Article 3 of the ECHR. This means that it extends the right to the fugitive to be humanely treated even in a requesting State where no such right might be promised. This prevents the scope of threat to violation of Human Rights as absolute.

The case also widened the scope of anticipated punishment in these cases. The Court in the present case ruled that an extradition violates Article 3 “where substantial grounds have been shown for believing that the fugitive, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment in the requesting country.” It was also observed that merely getting assurances from the requesting state is alone not substantive if it is not assured that immediate and real threat to the convicted human life will be restrained, which is why only when USA agreed to try Soering for first degree murder and not capital murder was he extradited by the UK. Further, it was constituted that the “death row phenomenon” will be regarded as inhuman or degrading treatment under Article 3. Since Article 2 of ECHR permits capital punishment, the Court limited itself to finding that the manner in which the death penalty was imposed in requesting State constituted inhuman or degrading punishment on Human Rights ground.

The Soering decision thus provides the reasoning and principles necessary to block extradition on humanitarian grounds, where there is a threat of oppression or injustice to an individual. In the present world, capital punishment, torture and right to fair trial are widely recognized as the violation of core fundamental human rights, thereby it is considered as a valid ground to turn over an extradition request.

How has this been implemented in India

In India as well, the Indian Extradition Act, 1962 (hereafter: Act) provides for safeguard to human rights by inculcating important international legal developments as evolved over decades.  The Act has been amended once in 1993 and is divided into five chapters. Unlike UK, where it is not mandatory that a prima facie case against an individual must exist before he can be extradited, Indian law facilitates extradition by way of due process of law but it is also important for India that there is no unreasonable restriction imposed on individual liberty even if he is a fugitive. The Act is in fine tune with United Nations Model Law of Extradition 2004 and Model Treaty of Extradition 1990 in order to avoid contradiction and variation with international law of varying countries which are party to these Model Law Treaties. 

The Indian judicial system has provisions for capital punishment. However, Section 34(c) of the Act says that when an individual is returned or surrendered to India, he will be sentenced with only life imprisonment even if the crime asks for death penalty if the requested country has abolished the death penalty in its nation. As far as inhuman and degrading treatment of the convict is considered as a barrier for extradition, the prevalence of torture in criminal justice procedure in India is of grave concern, as a consequence of which requested states negate requests from India for extradition. Added to that, India hasn’t ratified United Nation’s Convention against Torture (CAT), which also puts the position of India in scrutiny. Article 3 of the ECHR is also of particular concern to India, wherefore in 1996, the European Court of Human Rights prohibited the deportation of Sikh separatist, Karamjit Singh Chahal to India on the possibility of misconduct by Punjab police officials.

Although India tried to overcome these shortcomings by bringing The Prevention of Torture Bill, 2010 to make domestic law in tune with the prevalent international law on torture, it saw the light of the day with huge criticism. The overt point of contention was that the definition of torture as provided in the Bill was not in accordance with CAT. The Bill was further amended in 2011 but still it could not overcome major flaws such as due diligence escape clause, non consideration of evidence obtained through torture, etc.

What is the law and jurisprudence of this in India

Ministry of External Affairs of government of India is the nodal authority that administers the Extradition Act and it processes incoming and outgoing Extradition requests. Section 2(d) of the Act defines extradition treaty as an agreement made by India with a foreign state relating to extradition of fugitive criminals including treaties signed before India became an independent country, which extends to and is binding on India. The treaties India signed with other nations are bilateral in nature and embody at least five principles as endorsed by judicial pronouncements and state practice in respect of domestic extradition legislation. These principles are:

• The principle of extraditable offences lays down that extradition applies only with respect to offences clearly stipulated as such in the treaty.
• The principle of dual criminality requires that the offence for which the extradition is sought be an offence under the national laws of the extradition requesting country as well as of the requested country.
• The requested country must be satisfied that there is a prima facie case made out against the accused.
• Rule of Speciality says that the extradited person must be proceeded against only the offence for which his extradition was requested.
• He must be accorded a fair trial, which is a part of international human rights law. Judiciary and other legal authorities are likely to apply these principles equally to situations where no extradition treaty exists.

It is also important to bring under the radar that the Act accommodates the principle of ‘aut dedere aut judicare,’ which is if the Indian government is of opinion that an individual cannot be surrendered pursuant to a request for extradition from a foreign state, it may on its discretion take steps to prosecute the fugitive criminal in India itself.      

Conclusion

Insofar, it is safe to say that under Indian law, the ends of criminal justice are catered by not letting the criminal go free even if his extradition is denied to the requesting state. Added to that, nothing prevents the Indian government to use its discretionary power for extraditing the requested fugitive criminal even if there is no treaty. As a matter of sovereign discretion, the government has the basic power to permit or refuse extradition absolutely under the Act. The Act also gives power to stay or cancel extradition proceedings and discharge the fugitive criminal on grounds of trivial nature of offence, deficit of good faith in extradition request, interests of justice, political reasons or otherwise, and as a matter of justness and expediency.

References

• European Convention on Human Rights
• Convention for the Protection of Human Rights and Fundamental Freedoms
• European Database of Asylum Law
• Soering v. The UK, Application No. 14038/88, 7 July, 1989
• The Indian Extradition Act, 1962
• Ministry of External Affairs, Government of India

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