Editing Extradition (section)

== Extradition treaties or agreements ==
The consensus in [[international law]] is that a [[Sovereign state|state]] does not have any obligation to surrender an alleged criminal to a foreign state, because one principle of [[sovereignty]] is that every state has legal authority over the people within its borders. Such absence of international obligation, and the desire for the right to demand such criminals from other countries, have caused a web of extradition [[treaty|treaties]] or agreements to evolve. When no applicable extradition agreement is in place, a state may still request the expulsion or lawful return of an individual pursuant to the requested state's domestic law.<ref name="Stigall" /> This can be accomplished through the immigration laws of the requested state or other facets of the requested state's domestic law. Similarly, the codes of penal procedure in many countries contain provisions allowing for extradition to take place in the absence of an extradition agreement.<ref name="Stigall" /> States may, therefore, still request the expulsion or lawful return of a fugitive from the territory of a requested state in the absence of an extradition treaty.<ref name="Stigall" />

No country in the world has an extradition treaty with all other countries; for example, the United States lacks extradition treaties with China, Russia, Namibia, the United Arab Emirates, North Korea, Bahrain, and many other countries.<ref>[https://2009-2017.state.gov/documents/organization/71600.pdf Extradition Treaties Interpretation Act of 1998] from the [[United States Department of State]], [https://2009-2017.state.gov/s/l/treaty/faqs/70138.htm Extradition Treaties]</ref>

There are two types of extradition treaties: list and dual criminality treaties.  The most common and traditional is the list treaty, which contains a list of crimes for which a suspect is to be extradited.  Dual criminality treaties generally allow for the extradition of a criminal suspect if the punishment is more than one year imprisonment in accordance with the laws of both countries. Occasionally the length of the sentence agreed upon between the two countries is varied. Under both types of treaties, if the conduct is not considered a crime in both of the countries involved then it will not be an extraditable offense.{{citation needed|date=July 2024}}

Generally, an extradition treaty requires that a country seeking extradition be able to show that:
*The relevant crime is sufficiently serious.
*There exists a ''prima facie'' case against the individual sought.
*The event in question qualifies as a crime in both countries.
*The extradited person can reasonably expect a fair trial in the recipient country.
*The likely penalty will be proportionate to the crime.

=== Restrictions ===
Most countries require themselves to deny extradition requests if, in the government's opinion, the suspect is being sought for a [[political crime]]. Many countries, such as Mexico, Canada and most European nations, will not allow extradition if the death penalty may be imposed on the suspect unless they are assured that the death sentence will not be passed or carried out. In the case of ''[[Soering v. United Kingdom]]'', the [[European Court of Human Rights]] held that it would violate Article 3 of the [[European Convention on Human Rights]] to extradite a person to the United States from the United Kingdom in a capital case. This was due to the harsh conditions on death row and the uncertain timescale within which the sentence would be executed. Parties to the European Convention also cannot extradite people where they would be at significant risk of being tortured inhumanely or degradingly treated or punished.

These restrictions are normally clearly spelled out in the extradition treaties that a government has agreed upon. They are, however, controversial in the United States, where the death penalty is practiced in some U.S. states, as it is seen by many as an attempt by foreign nations to interfere with the [[Criminal law in the United States|U.S. criminal justice system]]. In contrast, pressures by the U.S. government on these countries to change their laws, or even sometimes to ignore their laws, is perceived by many in those nations as an attempt by the United States to interfere in their sovereign right to manage justice within their own borders. Famous examples include the extradition dispute with Canada on [[Charles Ng]], who was eventually extradited to the United States on murder charges.

Countries with a [[rule of law]] typically make extradition subject to review by that country's courts. These courts may impose certain restrictions on extradition, or prevent it altogether, if for instance they deem the accusations to be based on dubious evidence, or evidence obtained from [[torture]], or if they believe that the defendant will not be granted a [[fair trial]] on arrival, or will be subject to cruel, inhumane or degrading treatment if extradited.

Several countries, such as [[France]], the [[Russian Federation]], [[Austria]], [[China]] and [[Japan]], have laws against extraditing their respective citizens. Others, such as [[Germany]] and [[Israel]], do not allow for extradition of their own citizens in their constitutions. Some others stipulate such prohibition on extradition agreements rather than their laws. Such restrictions are occasionally controversial in other countries when, for example, a French citizen commits a crime abroad and then returns to their home country, often being perceived as doing so to avoid prosecution. These countries, however, make their criminal laws applicable to citizens abroad, and they try citizens suspected of crimes committed abroad under their own laws. Such suspects are typically prosecuted as if the crime had occurred within the country's borders.

=== Exemptions in the European Union ===
The usual extradition agreement safeguards relating to dual-criminality, the presence of ''prima facie'' evidence and the possibility of a [[fair trial]] have been waived by many European nations for a list of specified offences under the terms of the [[European Arrest Warrant]]. The warrant entered into force in eight European Union (EU) member-states on 1 January 2004, and is in force in all member-states since 22 April 2005. Defenders of the warrant argue that the usual safeguards are not necessary because every EU nation is committed by treaty, and often by legal and constitutional provisions, to the right to a fair trial, and because every EU member-state is subject to the [[European Convention on Human Rights]].

=== Extradition to federations ===
The [[federation|federal]] structure of some countries, such as the [[United States]], can pose particular problems for extraditions when the [[Police power (United States constitutional law)|police power]] and the power of foreign relations are held at different levels of the federal hierarchy. For instance, in the United States, most criminal prosecutions occur at the state level, and most foreign relations occurs on the federal level.  In fact, under the [[United States Constitution]], foreign countries may not have official treaty relations with the individual states; rather, they may have treaty relations only with the federal government.  As a result, a US state that wishes to prosecute an individual located in foreign territory must direct its extradition request through the federal government, which will negotiate the extradition with the requested state.  However, due to the constraints of [[federalism]], any conditions on the extradition accepted by the federal government – such as not to impose the death penalty – are not binding on the states.  In the case of ''[[Soering v. United Kingdom]]'', the [[European Court of Human Rights]] ruled that the [[United Kingdom]] was not permitted under its treaty obligations to extradite an individual to the United States, because the United States' federal government was constitutionally unable to offer binding assurances that the death penalty would not be sought in [[Virginia]] state courts.  Ultimately, the Commonwealth of Virginia itself had to offer assurances to the federal government, which passed those assurances on to the United Kingdom, which then extradited the individual to the United States.

Less important problems can arise due to differing qualifications for crimes. For instance, in the United States, crossing state lines is a prerequisite for certain federal crimes (otherwise crimes such as murder, etc. are handled by state governments (except in certain circumstances such as the killing of a federal official){{Citation needed|date=March 2008}}. This transportation clause is, understandably, absent from the laws of many countries, however. Extradition treaties or subsequent diplomatic correspondence often include language providing that such criteria should not be taken into account when checking if the crime is one in the country from which extradition should apply.