April 04, 2017
By: Zhanna Kushnir
To create a legal mechanism of criminals’ extradition, first of all we need to know some definitions as corruption, criminals and offender to tailor the best legal plan before any actions. By usage of non correct definitions in many ratified laws of some States, conflicts in national and international laws may happen.
- Corruption is illegitimate use of public power to benefit a privet interest.
- Criminal means person who has committed a crime, or is in the habit of committing crimes.
- Offender means person who transgresses moral or civil law, it is quite legalistic violation.
By primary look at the meaning of the Criminal and Offender we may understand that criminal is always an offender, but an offender is not necessarily a criminal!
In the majority of States that have ratified anti corruption laws, law makers are mostly fighting against criminals not offenders.
To resolve these conflicts in national and international laws, we should consider the Roman and Anglo-Saxons law systems to create anti corruption law. Also in anti corruption laws we must define offenders’ actions and their punishments or penalties too.
The best definition for “corruption” in any anti corruption law may be:
Corruption is illegitimate use of public power to benefit a privet interest.
The expressed definition of corruption covers very vast areas and, how serious law makers of a state are ready to ratify anti corruption laws by this definition will depend on the transparency, effectiveness and honesty of the State system!
One of the international anti corruption law instrument is the United Nations Convention against Corruption (2003).
In chapter 4 article 43 points to the extradition of a criminal is a “must” and an offender is a “may”, this chapter clears why some corruption criminals escape from being held accountable.
One more point that blocks fighting against corruption is untouchablity of political office holders. No one must be untouchable and each one in any position may be questioned if he or she engages in corruption and should be held responsible for his or her actions.
Mostly corruption criminals, after violating the law move to another country to hide and avoid prosecution. In such situations the best solution is extradition of the corruption criminal.
Extradition is a mechanism of international judicial cooperation, by virtue of which through a formal request, one State obtains from another State the delivery of a person charged or convicted for an ordinary offense in order to judge the person in a penal court or to execute the imposed penalty.
Theoretically, corruption criminals’ extradition is very similar to any kind of extradition process.
In general, any extradition is governed by international treaties, bilateral or multilateral, enshrining the legality principle, "nulla extraditio sine lege" ("no extradition without a law") a version of "nullum crimine nulla pena sine lege" ("no crime and no penalty without a law").
Please be aware that, person wanted for political offenses may not be extradited. But, genocide, assassination of authorities and terrorism are not considered political offenses.
Any extradition will be admissible when:
- The State has competency and jurisdiction to try the criminal;
- The person has not been acquitted, convicted or pardoned;
- The prescription term has not expired in either State concerned;
- The penalty is not less than one year;
- The case is not handled by an exceptional court;
- The criminal is not of a military or religious nature, or related to politics, the press or opinion;
- The case has not been preferred ex parte, except in cases of rape;
- It is not related to violation of taxation or currency laws, unless it constitutes an ordinary crime;
- It is not related to a misdemeanor.
Extradition will not be granted if the corruption criminal in question may be considered as political or politically related.
The same principle will be applied if the extradition request is motivated by a criminal under ordinary law but has been presented in order to persecute or punish an individual for reasons of race, religion, nationality or political opinions.
Usually we have two kinds of extraditions:
1) Active extradition- When a State requests from another country the delivery of a corruption criminal who is found in that territory.
- Standard necessary documents for extradition of a corruption criminal in active extradition are :( other documents may be requested according to States agreement):
- INTERPOL report informing the judicial authority that the corruption criminal has been found in a specified country;
- Final decision of the judicial authority requesting or approving the active extradition request and the creation of the extradition file;
- Police certificate and complaint laid by the general attorney;
- Record of opening of the investigation;
- Document testifying the corruption criminal’s absence or fugitive status and the respective search and arrest warrant;
- Charges laid order to stand trial, and conviction, depending on the stage of the proceedings;
- Evidence for the prosecution and for the defense;
- Proof of personal identity showing that the person sought is the person convicted or wanted for trial;
- Rules of domestic law and any applicable treaties;
- Report of the general attorney;
- Decision of the court, approving the extradition;
- Notice from the Minister of Justice.
2) Passive extradition- When a State receives a petition from another country that requests the delivery of a criminal who is found in our territory.
- General documents that must accompany the passive extradition request :( other documents may be requested according to States agreement):
- Copy of the conviction verdict, or the arrest warrant issued by the competent magistrate, with indication of the offense and the summons or declaration of fugitive status;
- The place and the date of the offense. Full copies of the legal text criminalizing the offense, the applicable penalty and applicable statute of limitations for the offense.
- Proof that the crime was committed;
- Evidence submitted by the prosecution and defense.
Please be noticed that, in any kinds of extraditions all documents must be translate to English or extraditing State language and officially legalized.
Also, all correspondents will be between the diplomatic representatives of the requesting State and Ministry of Foreign Affairs of the State which criminals located in.
Extradition of corruption criminals is important for a State because:
- we take back national material losses;
- criminals will be punished under law provisions;
- people will have trust in transparency, honesty and effectiveness of a the state.
The most important point to extradite criminal is time because criminals usually do their best to tie other countries for protection.
Criminals usually use asylum instrument as a common practice. But an asylum offered case may be block and finally rejected, if a criminal is suspicious or persecuted by other state.
Therefore, to prevent criminals asylum instrument access, Courts, Ministry of Justices, General Attorneys, Ministry of Foreign Affairs and Interpol quick action and coordination is very important, as the criminal should be under international persecution which it announced by the Interpol.
Extradition once granted may be revoked in case of error, or if the person extradited has not been removed by the authorized agent of the requesting State within thirty days, the person will be released and may not be arrested again for the same grounds.
Undertaking by the law requesting State:
Not to imprison or try the extradited corruption criminal for criminal other than the criminal for which extradition was granted and committed before extradition, unless the person freely agrees thereto, or unless the person remains at liberty in that State two months after acquittal for the crime for which extradition was granted, or fulfillment of the sentence imposed.
Not to increase the penalty for political, military or religious reasons.
To credit the extradited person with the time spent in detention during the extradition proceedings. Not to surrender the extradited person to a third State, and not to execute the person
Corruption criminals’ extradition is possible if it will be as an international mechanism between States. This mechanism may be as an international treaty that all countries of the world sign and ratify it in their national level. Other way, there are always States which have political opposition interest with the requesting State and corruption criminals use this point to escape the law.