Extradition law; issues and challenges

 Suman Acharya

1. Introduction

The concept ‘extradition’ is based on reciprocity principle between two or more state for the
judicial proceeding of fugitive offender. No crime is left unpunished principle is the base of
extradition procedure. Because of the sovereign equality principle no state can compel
another state for extradition. On the ground of it state may refuse for the extradition unless
otherwise mentioned in the law of given nation. Extradition Act, 2014 has defined extradition
as the process of handover of absconded accused or offender to such state and this word is
also referred to the process of handover of such absconded accused or offender from foreign
state to Nepal in the request of Nepal and vice versa.1 Extradition law guides extradition
process in relation to extradition treaty between and among two or more countries. However,
some of the leading state like China, Namibia, the United Arab Emirates, North Korea, and
Bahrain do not have extradition law till this date. In the sub national situation, the term
rendition is used rather than extradition. Sometimes extraordinary rendition situation also
comes. It means the process of transferring a person on the ground of involvement in any
terrorizing grave issues even to this country where due process of law is unlikely to be found
in accordance with this section.2

2. Conditions and issues for extradition

There are mandatory ground and optional ground of refusal of extradition.3 Some of these
grounds are also mentioned here in the extradition Act of Nepal. Section 5 of Nepalese
Extradition Act, 2014 has mentioned about the Condition to refuse extradition. The request of
extradition is refused on the ground of political offence, prosecution grounded on race,
ethnicity, caste, religion, nationality or political ideology, hearing prejudiced to the race,
ethnicity, caste, religion, nationality or political ideology, accusation of offence possible to


LL.M. in International Law/M.A. in JMC
Note: Extradition Ordinance 2012 of Nepal has been transferred to Act in 2014.
1
Section 2(e), The Nepalese Extradition Act, 2014
2
http://dictionary.reference.com/browse/extraordinary+rendition visited at 16 July 1012
3
Article 3 and 4, Model Treaty on Extradition, adopted by General Assembly resolution 45/116,subsequently
amended by General Assembly resolution 52/88

Electronic copy available at: http://ssrn.com/abstract=2525094

death penalty or if the punishment of death penalty is already declared, Nepali national,
offence of military law, possibility of physical or psychological torture, already decided
offence from Nepalese court, immunity holder, elapse of limitation, offer of parole, any sub
judice case in Nepal.4 These issues are also mentioned in international instrument.
 Double criminality: Extradition is granted only in the case of dual criminality. If
legal provisions of the contracting party both have declared particular offence as an
extraditable offence, then only, extradition is granted. In case of the law of given one
nation does not declare particular offence as a crime that shall be ground to refuse
extradition. It requires an accused has to be extradited only if the alleged offence is
considered as crime under the laws of both the surrendering and requesting nations.
 Political offence: Extradition is refused in case of request made on political offence.
In political offence there will be unreasonable intention of requesting state. Likewise,
Article 3 of Model Treaty has included political offence as the ground of mandatory
refusal of extradition. However, in its footnote, it has mentioned that countries may
wish to exclude certain conduct, e.g., acts of violence, such as serious offences
involving an act of violence against the life, physical integrity or liberty of a person,
from the concept of political offence.5 No person associated with terrorism and other
serious issues can get exemption from it in the name of political offence.
 Fiscal offence: Earlier, many countries were unwilling to extradite a person convicted
for a fiscal offence. However, it is no longer applicable in all case. Fiscal offence has
also become the ground of extradition in accordance with the laws in force. FATF has
recommended member state to establish money laundering and terrorism financing as
extraditable offence in accordance with law of given nation. 6 Article 5 of European
Convention on Extradition has mentioned that extradition is granted for offences in
connection with taxes, duties, customs and exchange only if the Contracting Parties
have so decided in respect of any such offence or category of offences. 7 The issues of
extradition on fiscal matter have to be decided by party to the action. Article 6 of the
Franco-German Convention on Extradition inspires this draft of Article 5. It is left to
the Parties to determine the meaning to be attributed to the word “decided”.8

4
Section 5, Nepalese Extradition Act, 2014
5
Article 3(a), Model Treaty on Extradition, adopted by General Assembly resolution 45/116, subsequently
amended by General Assembly resolution 52/88
6
Recommendation Number 39, FATF, 2012
7
Article 5, European Convention on Extradition (ETS No. 24)
8
Ibid, Explanatory Notes, Council of Europe, 2006.

Electronic copy available at: http://ssrn.com/abstract=2525094

 However, this provision is changed in Article 2 of the Second Additional Protocol to
the European Convention on Extradition (ETS No. 98). Extradition is possible in
serious financial offence.
 Death penalty including degrading treatment: In contemporary time there is great
violation of human right across the globe. In the name of extradition no state can
support grave human right violation. If there is sufficient ground of belief that a
person extradited will get torture, degrading inhumane treatment or punishment or
even death penalty, no extradition is made. If there is the guarantee of human
treatment, extradition can be made. Article 3(f) of Model Treaty has also included
these provisions as the mandatory ground of refusal for extradition in accordance with
Article 14 of International Covenant on Civil and Political Rights, 1966.9
 Jurisdictions: Until and unless there is competency in jurisdiction of given state, no
extradition decision can be made. It is optional ground of the refusal of extradition.
Article 4 (e) of same model treaty mentions that “If the offence for which extradition
is requested has been committed outside the territory of either Party and the law of the
requested State does not provide for jurisdiction over such an offence committed
outside its territory in comparable circumstances”10
 Own nationals: Generally no state will be willing to extradite their own nationals.
Article 4 (a) of Model Treaty on Extradition has mentioned that in case of extradition
is requested referring the national of given state, in such case, state may refuse to
grant extradition. However, if state requests, the case has to be submitted to
competent authority for appropriate action. Yet, in the footnote of same Article, it is
said that some countries have accepted either to launch the procedure of extradition or
temporary transfer in the serious case.11
 Rule of specialty: The extradited person has to be prosecuted only in the case
specified in the time of request. Extradited person is not liable in any other case. A
person extradited should not be proceeded against, sentenced, detained, re-extradited
to a third state, or subjected to any other restriction of personal liberty in the
territory.12
3. Bilateral treaty agreement for extradition

9
Article 3(f), Ibid
10
Article 4(e), Model Treaty on Extradition, adopted by General Assembly resolution 45/116, subsequently
amended by General Assembly resolution 52/88
11
Article 4, Ibid
12
Article 14, Id
 Nepal and India made treaty agreement for extradition in 1953, which was later, came
into force in 1963. Seven countries i.e. Russia, France, Israel, USA, Pakistan, China and
Thailand, have shown interest in signing extradition treaties with Nepal. Russia, Israel
and France have already forwarded the drafts of treaties to Nepal, seeking the opinion of
Government of Nepal. The rest of the countries have also shown interest in signing a
treaty with Nepal. The old extradition treaty is also going to be proposed to replace by
new one. 13

Times of India has reported that Government of Nepal has already finalized the draft for
an extradition law paving the way for a revised extradition treaty with India. It is gone to
include the provision of extradition in the light of ISI activities in Nepal, including the
fake Indian currency racket; India has been pressing Nepal for a revised extradition
treaty.14 Italy and the UK argued that state has to grant extradition although there is the
application of principle of non-refoulement obligations. Specifically, they were
suggesting that there are conditions under which refoulement was acceptable despite real
risk of torture or ill treatment, without being a human rights violation.15 The conditions
are if a person has been determined to be a national security risk or a person's presence
threatens the state's national interests or a country of origin is a signatory of the relevant
human rights treaties and has made diplomatic assurances that the person would not be
subjected to treatment, which violates human rights. Both countries wanted to make
liberal definition of strictly interpreted non-refoulement obligations in Article 3 of the
European Convention on Human Rights in situations of terrorism.16

Article III of Nepal-India Extradition Treaty has itemized the list of offence. It has
included murder or attempt or conspiracy to murder, culpable homicide not amounting to
murder, grievous hurt, rape, dacoity, highway robbery, robbery with violence, burglary or
house-breaking, arson, offences against the laws prohibiting the export and import of
goods, embezzlement by public officers, serious theft, that is to say cases of theft where
violence bar, been used or where the value of the property stolen exceeds Rs. 500 and
cattle stealing, abduction or kidnapping, forgery and the use of what is known to be

13 Bimal Gautam, 7 countries want extradition treaty with Nepal, The Republica, Kathmandu March 4, 2011
14 Sachin Parashar, New extradition treaty with Nepal soon, Times of India, Oct 4, 2010, 02.55am
15 Saadi v Italy & non-refoulement obligations in terrorism extradition
 forged, counterfeiting or altering money; uttering or bringing into circulation
counterfeited or altered money, receiving of illegal gratification by a public servant,
escaping from custody while undergoing punishment after conviction for any of the
offences are taken as extraditable offence.17 Some of these provisions seem quite
obsolete. Therefore, India has already proposed Government of Nepal to make it up-to-
date.
4. International instruments mentioning the issues of extradition

Article 6 of United Nations Convention Against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances, 1988 has also mentioned about the provision of extradition.
Illegal traffic of drugs and psychotropic substance is also the extraditable crime. Article
16 of Convention Against Transnational Organized Crime, 2000 has defined transnational
organized crime as extraditable offence. Article 9, 10 and 11 of International Convention
for the Suppression of the Financing of Terrorism, 1999 are associated with extradition.
Article 9 says that terrorism financing is also the extraditable offence and it so is not
possible state has to make own arrangement for the prosecution of the person in
accordance with Article 10 and Article 11 further says that after the entry of the force of
this convention this convention is the ground of extradition if there is the no prevalence of
extradition treaty. Article 44 of UN Convention Against Corruption has also taken
corruption as the extraditable offence. Numbers of other convention included in the annex
of convention for the Suppression of Terrorism Financing, 1999 have equally established
the offence under it as extraditable offence in accordance with the provision of law.

5. Extradition law and Nepal

Government of Nepal issued the Extradition Act for the first time in 2020. After the
widespread criticism of the obsolete nature of this extradition law, Extradition Act – 1988
was issued. It also could not fulfill the necessity of changing time framework. As a result,
Extradition Ordinance, 2012 was issued, which has been later converted into Act in 2014
that covers the area of international issues mentioned in various conventions to which
Nepal is a party.

17 Article III, Nepal-India Extraditable Treaty, 1953

The scope of Extradition Act, 1988 was very limited as it was enacted to fulfill the legal
requirement of SAARC Regional Convention on suppression of terrorism 1987 passed by
the Third Summit Conference of the South Asian countries. Optional Protocol to this
Convention was also made in 2004, which was also already entered into force. It has also
made about the extraditable offence. It is almost synonymous with the annex provision of
terrorism financing convention, 1999. As this protocol is the complementary issues of
precursor convention, it was also applicable in Nepalese legal provision of extradition.
The provisions of this extradition law are not sufficient to deal the changing scenario of
Nepal. As a result, new extradition law was realized. In the absence of parliamentary
session Extradition Ordinance was issued, which was converted into Act in 2014 with the
establishment of parliament that fulfills the legal gap of previous law.

Recent extradition Act seems sophisticated in nature. Existing Nepalese law has refused
for extradition in the crimes related to ethnicity or their political or religious beliefs.
Foreign nationals who face the death sentence in a foreign country or are charged with
crimes that may result in the death penalty cannot be handed over to the country in
question. It also bans extradition for a foreign national who is being tried in Nepal or a
foreign national in whose case a court has already given the verdict. Extradition can only
be made after 30 days of court decision. Charged under military law in a foreign country
or who are charged with crimes that result in less-than-a-year imprisonment cannot be
extradited.

There is clear provision to request for extradition from foreign state or from Nepal to
foreign state. The decision of it has to be made by competent court of given nation. There
should be sufficient proof or evidence that are necessary for the purpose of extradition.
Request has to be made for extradition through diplomatic agency of given country with
the support of ministry of foreign affairs.

6. Case laws

In the case on questions relating to the obligation to prosecute or extradite of Belgium v.

Senegal, International Court of Justice has come into conclusion that Habré, former
President of the Republic of Chad, was charged for crimes against humanity and of
torture so he has to be prosecuted in Senegal if it doesn’t willing to extradite. However,
 Belgium has no jurisdiction of proceeding related to it and cannot compel Senegal to
extradite him. Senegal has to fulfill the obligation of universal jurisdiction in accordance
with United Nations Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment of 10 December 1984.18

In the context of Nepal, the extradition of Muncha Singh is important which is formal
procedure of extradition between Nepal and India. Other cases of extradition between
these countries are informal thereafter without much bandwagon.

The Gill & Sandhu case of India is mentionable where India requested USA to extradite
Ranjit Singh Gill and Sukhminder Singh Sandhu with the claim that they were involved
in robbery. Before deciding the extradition, the scope of the district courts’ review of
extradition proceedings; the fairness of the hearing procedures; the probable cause
determination; and the possible antipathetic treatment awaiting Gill and Sandhu in India
have to be analyzed in accordance with the decision of court in review. 19 Daya Singh
Lahoria v. Union of India says that a person has to be tried for the offences mentioned in
the Extradition Decree.20
7. Challenges
There is dire violation of human rights and humanitarian law in contemporary time. In the
name of extradition, no any contracting state may endorse it. Yet, extradition process is
compulsory in ongoing society in transnational organized crime including money
laundering and terrorism financing. The jurisprudential aspect of extradition is linked to
no criminal left unpunished. In case of possible ill treatment to extradited offender in
requesting state, he or she must not be extradited. However, torture, inhumane or
degrading treatment, capital punishment should be rejected. If so is visible, an offender
has to be proceeded in own country. As UN has already adopted anti-death-penalty or
anti-torture move so is prohibited even in extradition process.
8. Conclusion

18
Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) - Judgment of 20 July
2012 , ICJ
19
In re Singh, In re Gill, 123 F.R.D. 140 (D.N.J.1988); In re Singh, In re Gill, 123 F.R.D. 127 (D.N.J.1987);
Gill v. Imundi, 715 F.Supp. 592 (S.N.N.Y.1989); and Gill v. Imundi, 747 F.Supp. 1028 (S.D.N.Y.1990)
20
AIR 2001 SC 1716
Extradition is the legal surrender of a fugitive offender or accused or convicted person
from one state or territory or jurisdiction to another jurisdiction or state or territory for the
purpose of legal trial. Extradition cannot be granted in the absence of law without
apparent criminalization or penal provision under law of given nation. Extradition is also
the form of international judicial cooperation, which includes direct and indirect
extradition. Requesting state is the direct party to the extradition whereas receiving state
is the indirect state of extradition. Extradition is granted only by executive power with the
approval of designated court of given nations.
‘The End…’