Since the middle of the 18th century the practice of extradition has gradually developed until today there are some 350 extradition conventions, practically all bilateral in nature, and extradition laws in twelve or more states. The extradition under political offense is a controversial nature.
Extradition derived from Latin word which means delivery of fugitive criminals, surrender of fugitives. It is well established Principle of International Law. Extradition is a process by which a person accused or convicted of a crime and is formally transferred to a state where he is wanted for a trial or to serve his sentence. The principle of double criminality means that the extradition is only available when the act is an offense in both jurisdictions. Under, the principle of blanket extradition request and extradited individual can be trial only for offense specified in the extradition requested, and not for any other.
Each member state must comply with a request from a court of another member state for the execution of an arrest warrant issued by him for a person accused of an offense. Crime is considered nonextraditable the laws of both countries are not the same and if both countries don’t have an established treaty. Extradition of political offender are not extradited and this rule is based on consideration of humanity. However, the extradition of political offenders has always remained controversial because of the difficulty in defining political offense.
In Bilateral extradition treaties and legislation, the following criteria are incorporated for extradition.
- · Generally, Political. Religious or military offenders are not extradited
- · Principle of Double criminality
- · The criminal should be punished only for the crime for which he is extradited.
- · In the absence of an extradition treaty generally extradition is not granted, if granted then it is a mere courtesy or moral obligation.
- · There must be a prima facie evidence that the requested fugitive has committed the offense. (Tarasov case 1963, India)
- · Generally, the requestee state will not surrender its own nationals.\
- · Extradition is not granted unless the requested to be surrendered undergoes the sentence for crimes committed in requested state.
Some leading cases
- after the revolution in France in 1789, international attitudes towards the extradition of political offenders began a slow shift. England opposed about the extradition of political offenders are not extradited. In 1793, Constitution of France allowed asylum for those political offenders and are not to be extradited. Slowly, the concept of extradition on political offenders are not to be extradited in Europe became popular. In 1933, Montevideo Convention, country who does extradition of political offenders or not decision is based on own interest of the country practice was established.
- In 1833, Belgium became the first country to legislate a prohibition against the extradition of political offenders (section 6 of the Loi du 1er October 1833 sur les extraditions), and included such a prohibition in its extradition treaty with France the following year. France itself began including such exceptions in its extradition treaties with various other countries over the several decades that followed. France began to include the political offence exception in its treaties later that year; the United States followed suit starting in 1843, and England in 1852. Belgium, as the first country to codify a political offence exception to extradition, was also a pioneer in efforts to define the outer limits of what exactly constitutes a "political offence”. In what is now known as the clause d'attentat or the clause Belge, Belgium excluded from the definition of "political offence" crimes committed against the life of a head of state or head of government after having to refuse to extradite two persons who attempted to assassinate Napoleon.(de ‘lit complexe, that is, an offense which combines the character of a common and a political crime in the same act.)
- Switzerland and Great Britain are two important states which have found it impossible to accept the clause, although they are in sympathy with its purpose. Switzerland adheres to the theory of predominance which is based on the principle that any common offense can have a political character. Hence, she cannot categorically deny a political character to certain offenses, as is done by the attentat clause. Great Britain refuses to accept the attentat clause because it conflicts with British law, which states that offenses against the sovereign are, first of all, treason, and hence political
- Apart from the Swiss and the British, there have been others who have found fault with the absoluteness of statement of the attentat clause. Lammasch criticized it as being at the same time too broad and too narrow. It is too broad in that it does not except the killing of a sovereign or a member of his family in open battle, or by a government de facto, now overthrown. It is too narrow in that it destroys the right of asylum only for assassins of sovereigns, while it should deny a political character to every assassination regardless of the circumstances or character of the victim.
- The 1977 European Convention on the Suppression of Terrorism was more successful at limiting the scope of the political offence exception; in its first article, it provided a long list of offences which could not be regarded as political offences, including not just the traditional clause d'attentat, but also kidnapping, hostage taking, and the use of bombs and firearms where the use endangered lives.
Sucha Singh’s Case
The Indian police pursued Sucha’s Singh in Nepalese Territory. In 1965, Sucha Singh was accused in Punjab Chief Minister assassination and escape to Nepal. The government of India and the government of Nepal being desirous regulating extradition of criminals s between the two countries have resolved to enter into a new treaty of Extradition in 1953. Sucha Singh was extradited as per the treaty by Nepal. The nature of crime of Sucha Singh was Political. However, the assassination of chief minister was recognized as a crime not from a political offender. In this case, Extradition was found to be granted only after the compliance of extradition treaty and extradition law.
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