| Anahit Petrosyan, Associate Lawyer |
Extradition (surrender) is one of the key institutions of legal assistance in criminal proceedings. Through it, the principle that punishment must not be evaded is given effect at the international level. Legal assistance is provided on the basis of international law, the broadest possible cooperation between states, mutual respect, voluntariness, reciprocity, the inevitability of punishment, non-refoulement, and the principle of non-extradition of a state’s own nationals.
Legal Obligation and the Necessary Conditions for Extradition
International treaties establish an obligation for states to surrender to one another all persons who are being prosecuted by the competent authorities of the requesting party, or who are being sought for the purpose of serving a sentence or being taken into custody.
The following legal conditions must be met for a person to be extradited.
First, the act underlying the extradition request must constitute a criminal offense under the laws of both the requesting state and the requested state. According to the established position of the competent court, a general statement that the act is also punishable in the requested state is not sufficient to support a decision to extradite.
Although the legal wording of the offense need not be identical in the legislation of the two states, the essence of the offense and its principal elements must be defined in both and must correspond in substance.
This condition must also be properly reflected in the extradition decision itself. The decision must clearly identify the domestic legal provision under which the act is considered a criminal offense and is punishable in the requested state, and must demonstrate that the elements of the offense set out in that provision correspond to the factual circumstances of the act underlying the extradition request.
Second, requirements concerning the severity of the penalty also govern the admissibility of extradition. Extradition for the purpose of criminal prosecution is permissible only where the act underlying the request is punishable by imprisonment of at least one year under the criminal legislation of both the requesting and the requested state. Extradition for the purpose of serving a sentence is permissible where the person has been sentenced to imprisonment for a term of at least six months.
Non-Extradition of Nationals and Legal Grounds for Refusing Extradition
To protect the fundamental rights and freedoms of the individual, international and domestic legal instruments provide for bars to extradition and grounds for refusing it. These may be either absolute or discretionary in nature.
Under the principle of non-extradition of a state’s own nationals, a state’s citizen is, as a rule, not extradited to a foreign state unless otherwise provided by an applicable international treaty. Citizenship may constitute an independent legal ground for refusing an extradition request, depending on the constitutional and legislative framework of the state concerned.
Extradition is also absolutely barred where there are substantial grounds for believing that, if surrendered to the requesting state, the person would be subjected to the death penalty, torture, or inhuman or degrading treatment or punishment. In such cases, the state is obliged to safeguard the person’s fundamental rights and to refrain from extraditing the person to a state where there is a real risk that those rights would be violated.
Extradition may also be refused on grounds of the person’s health or age, where there are sufficient grounds to believe that surrender would significantly worsen the person’s health or endanger their life, taking into account the conditions provided for by applicable international treaties and domestic legislation.
An extradition request must likewise be refused where there are substantial grounds for believing that the person is being prosecuted on account of their race, religion, nationality, membership of a particular social group, or political opinions, or that extradition may result in discriminatory treatment. A bar to extradition may also arise where there is a real risk of torture or of cruel, inhuman, or degrading treatment.
Further grounds for refusal include the expiry of the limitation period for criminal prosecution or for the enforcement of a sentence, as well as the principle that a person may not be tried again for the same act (ne bis in idem), where a final judicial act or other relevant decision of legal significance already exists in respect of the same act.
Extradition may also be refused where the offense carries the death penalty in the requesting state, and the requesting state has not provided sufficient assurances that it will not be imposed. A further ground for refusal is that the person is liable to be tried by an extraordinary court, or that the judgment against them was rendered by such a court.
In addition, where a judgment was rendered in the person’s absence (in absentia), it must be assessed whether the person was afforded effective guarantees of a review of the case or a retrial. The absence of such guarantees may constitute grounds for refusing extradition under the applicable legal provisions.
Finally, extradition may be refused if it would conflict with the requirements of protecting the state’s security, public order, or other essential interests, where such grounds are provided for by applicable domestic legislation or international treaties.
Legal Safeguards in Extradition
Ensuring the legal safeguards necessary to protect a person’s rights is of fundamental importance in the extradition process. Within the framework of applicable international treaties and domestic legislation, the competent authority must assess whether the assurances provided by the requesting state are sufficient. In particular, these concern the person’s prosecution solely for the act underlying the extradition; non-onward extradition to a third state without appropriate consent; non-application of the death penalty; protection against torture and discriminatory treatment; and, in the case of a judgment rendered in the person’s absence, the availability of an effective review or retrial.
At the same time, the provision of personal data in the course of legal assistance must have a lawful basis and must respect the right to private life and confidentiality. Information relating to asylum requires particular protection: it may not be disclosed to the country of origin of an asylum seeker or refugee where applicable legal provisions prohibit such disclosure.
In sum, extradition is a complex legal process, and its lawfulness depends both on compliance with the substantive and procedural conditions for extradition and on the existence of effective safeguards for the protection of the person’s fundamental rights. Each extradition request must be assessed individually, taking into account the dual criminality requirement, the penalty thresholds, the possible grounds for refusal, and the adequacy of the assurances provided by the requesting state. Only a comprehensive assessment of these circumstances can ensure effective international legal cooperation while preventing a disproportionate restriction of the person’s rights and freedoms.
Legal Disclaimer: This article is for general informational purposes only and does not constitute legal advice. For advice on a specific matter, please consult a qualified lawyer.