Editing Extradition (section)

== Bars to extradition ==
By enacting laws or in concluding treaties or agreements, countries determine the conditions under which they may entertain or deny extradition requests. Observing fundamental human rights is also an important reason for denying some extradition requests. It is common for human rights exceptions to be specifically incorporated in bilateral treaties.<ref name="Johnston">{{cite journal |url=http://www.austlii.edu.au/au/journals/AIAdminLawF/2014/3.html |author=Johnston, P |title=The Incorporation of Human Rights Fair Trial Standards into Australian Extradition Law|journal=Aial Forum |year=2014 }} (2014) 76 Australian Institute of Administrative Law Forum 20.</ref> Such bars can be invoked in relation to the treatment of the individual in the receiving country, including their trial and sentence. These bars may also extend to take account of the effect on family of the individual if extradition proceeds. Therefore, human rights recognised by international and regional agreements may be the basis for denying extradition requests. However, cases where extradition is denied should be treated as independent exceptions and will only occur in exceptional circumstances.<ref name="Radu">Mariana (Mitra) Radu, Cătălina Mititelu (2013) "The Observance of Human Rights and Freedoms in the Extradition Proceedings at National and International Levels" JDSR 3, 100 at 101</ref>

Common bars to extradition include:

=== Failure to fulfill dual criminality ===
{{See also|Double criminality}}
Generally the act for which extradition is sought must constitute a crime punishable by some minimum penalty in both the requesting and the requested states.

This requirement has been abolished for broad categories of crimes in some jurisdictions, notably within the [[European Union]].

=== Political nature of the alleged crime ===
{{Main|Political offence exception}}
Many countries refuse to extradite suspects of [[political prisoners|political crimes]]. Such exceptions aim to prevent the misuse of extradition for political purposes, protecting individuals from being prosecuted or punished for their political beliefs or activities in another country. Countries may refuse extradition to avoid becoming involved in politically motivated cases, or gaining a bargaining chip over a rival state.

=== Possibility of certain forms of punishment ===
Some countries refuse extradition on grounds that the person, if extradited, may receive capital punishment or face [[torture]]. A few go as far as to cover all punishments that they themselves would not administer.
* '''Death penalty''': Several jurisdictions, such as Australia,<ref>{{cite Legislation AU|Cth|act|ea1988149|Extradition Act 1988|15B}}.</ref> Canada, Macao,<ref>Article 7 of Macau Law No. 6/2006 Law of judicial cooperation in criminal matters ({{in lang|pt}} [http://bo.io.gov.mo/bo/i/2006/30/lei06.asp Lei n.º 6/2006], {{zh|t=[http://bo.io.gov.mo/bo/i/2006/30/lei06_cn.asp 第6/2006號法律]|link=no}})</ref> New Zealand,<ref>Section 30(3)(a) of the Extradition Act 1999. Also section 48(1)(b)(ii) of the Extradition Act 1999, although this section only applies to extraditions from New Zealand to Australia or the UK, neither of which have the death penalty.</ref> South Africa, United Kingdom and most European nations except Belarus, will not consent to the extradition of a suspect if the death penalty is a possible sentencing option unless they are assured that the death sentence will not be passed or carried out. The [[United Nations Human Rights Committee]] considered the case of Joseph Kindler, following the Canadian Supreme Court's decision in ''[[Kindler v Canada (Minister of Justice)|Kindler v Canada]]'' to extradite Kindler who faced the death penalty in the United States. This decision was given despite the fact that it was expressly provided in the extradition treaty between these two states that extradition may be refused, unless assurances were given that the death penalty shall not be imposed or executed, as well as arguably being a violation of the individual's rights under the Canadian Charter of Human Rights.<ref>[http://www.refworld.org/cases,UNCHR,51b6e4fc4.html ''Kindler v. Canada''], CCPR/C/48/D/470/1991, UN Commission on Human Rights, 11 November 1993, at 2.2</ref> The decision by the Committee considered Article 6 of the [[International Covenant on Civil and Political Rights]], the "inherent right to life" and whether this right prohibited Canada from extraditing the individual to the United States where he faced the death penalty. The Committee decided that there was nothing contained in the terms of Article 6 which required Canada to seek assurance that the individual would not face the death penalty if extradited.<ref>[http://www.refworld.org/cases,UNCHR,51b6e4fc4.html ''Kindler v. Canada''], CCPR/C/48/D/470/1991, UN Commission on Human Rights, 11 November 1993, at 14.6</ref> However, the Committee noted that if Canada had extradited without due process it would have breached its obligation under the Convention in this case.
* '''Torture, [[inhuman or degrading treatment]] or punishment''': Many countries will not extradite if there is a risk that a requested person will be subjected to torture, inhuman or degrading treatment or punishment. In regard to torture the [[European Court of Human Rights]] has in the past not accepted assurances that torture will not occur when given by a state where torture is systematic or endemic.<ref name="Fitzgerald">Edward Fitzgerald (2013). Recent Human Rights Developments in Extradition Law & Related Immigration Law, The Denning Law Journal 25 89 at 90.</ref> Although in the more recent case before the same court ''[[Othman (Abu Qatada) v. United Kingdom]]'' the court retreated from this firm refusal and instead took a more subjective approach for assessing state assurances. Unlike capital punishment it is often more difficult to prove the existence of torture within a state and considerations often depend on the assessment of quality and validity of assurances given by the requesting state.  In the deportation case of ''[[Abu Qatada al-Filistini|Othman (Abu Qatada)]]'' the court provided 11 factors the court will assess in determining the validity of these assurances.<ref>Othman (Abu Qatada) v UK [2013] 55 EHRR 1. para 189</ref> While torture is provided for as a bar to extradition by the European Convention on Human Rights and more universally by the [[Convention Against Torture]], it is also a ''[[jus cogens]]'' norm under international law and can therefore be invoked as a bar even if it is not provided for in an extradition agreement.<ref name="Radu" /> 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 punishment case. This was due to the harsh conditions on death row and the uncertain timescale within which the sentence would be executed, but not the death penalty sentence itself. The Court in Soering stressed however that the personal circumstances of the individual, including age and mental state (the individual in this case was 18 years old) were relevant in assessing whether their extradition would give rise to a real risk of treatment exceeding the threshold in Article 3.<ref>Soering v. The United Kingdom, 1/1989/161/217 , Council of Europe: European Court of Human Rights, 7 July 1989, [109]. [http://www.refworld.org/cases,ECHR,3ae6b6fec.html]</ref>

=== Jurisdiction ===
Jurisdiction over a crime can be invoked to refuse extradition.<ref>{{cite web|title=The prosecute/extradite dilemma: Concurrent criminal jurisdiction and global governance
|author=Adam Abelson|url=https://jilp.law.ucdavis.edu/issues/volume-16-1/Abelson.pdf |date=19 May 2010
|quote="The criminal laws of the United States, whether state or federal, ordinarily apply only to conduct within U.S. territory. Sometimes, however, they apply to conduct abroad, from antitrust conspiracies to torture. Where such extraterritorial criminal prescriptive jurisdiction exists under U.S. law, jurisdiction typically exists under the law of another country as well, such as the country where the conduct occurred."}}</ref>

=== Own citizens ===
Several countries, such as Austria,<ref>{{cite web|title=section 12 of the Austrian Extradition and Legal Assistance Act ("Auslieferungs- und Rechtshilfegesetz (ARHG)") |publisher=Rechtsinformationssystem des Bundes (RIS), the official website of the Austrian government for the publication of legislation |url=http://www.ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=Bundesnormen&Gesetzesnummer=10002441 |date=27 February 2014}}</ref> Brazil,<ref>Brazilian constitution of 1988, Article 5</ref> Bulgaria,<ref>[https://parliament.bg/bills/39/502-01-9.pdf Условия за отказ на екстрадиция. Глава втора.]</ref> Czechia (the Czech Republic),<ref>{{cite web|title=Charter of fundamental rights and freedoms, Article 14 (4), second sentence |url=http://www.usoud.cz/fileadmin/user_upload/ustavni_soud_www/prilohy/Listina_English_version.pdf |date=16 December 1992}}</ref> France,<ref>{{cite web|title=Code of criminal procedure (legislative part), Articles 696-1 to 696–7 |publisher=published by [[Légifrance]], the official website of the French government for the publication of legislation, regulations, and legal information |url=http://www.legifrance.gouv.fr/content/download/1958/13719/version/3/file/Code_34.pdf |date=13 December 2005}}</ref><ref>{{cite web|title=Légifrance publications of the French legislation |publisher=[[Légifrance]] |url=http://www.legifrance.gouv.fr/Traductions/en-English/Legifrance-translations |date=13 December 2005}}</ref> Germany,<ref>Except to a member state of the European Union or to an international court: ''Basic Law for the Federal Republic of Germany'', [http://bundesrecht.juris.de/englisch_gg/englisch_gg.html#GGengl_000P16 Article 16 (2)], 29 July 2009.</ref> Israel, Japan,<ref>Article 2, [http://www.moj.go.jp/ENGLISH/information/loe-01.html Law of Extradition] ({{in lang|ja}} [[:ja:逃亡犯罪人引渡法|逃亡犯罪人引渡法]])</ref> Morocco,<ref>{{Cite web|title=Dahir n° 1-58-057 du 25rebia II 1378 (8 novembre 1958) relatif à l'extradition|url=http://adala.justice.gov.ma/production/html/Fr/liens/..%5C97273.htm|access-date=7 September 2020|website=adala.justice.gov.ma}}</ref> Norway,<ref>{{Cite web|url=https://lovdata.no/NL/lov/1975-06-13-39/%C2%A72|title=Lov om utlevering av lovbrytere m.v. (utleveringsloven) – Kap. I. Vilkår for utlevering til fremmed stat.|trans-title=Act on extradition of offenders, etc. (Extradition Act) – Ch. I. Conditions for extradition to a foreign state|website=[[Lovdata]]|language=no|access-date=12 July 2018}}</ref> the People's Republic of China (Mainland China),<ref>Article 8 of the [http://www.gov.cn/english/laws/2005-09/22/content_68710.htm Extradition Law of the People's Republic of China] {{Webarchive|url=https://web.archive.org/web/20170922010735/http://www.gov.cn/english/laws/2005-09/22/content_68710.htm |date=22 September 2017 }} ({{zh|s=[[s:zh:中华人民共和国引渡法|中华人民共和国引渡法]]}})</ref> Portugal,<ref>{{cite web |title=Constitution of the Portuguese Republic |url=https://fra.europa.eu/en/law-reference/constitution-portuguese-republic-17 |website=European Union Agency for Fundamental Rights |access-date=8 March 2022 |language=en |date=25 October 2018}}</ref> the Republic of China (Taiwan),<ref>Article 4 of the [http://law.moj.gov.tw/pdaeng/FLAWDAT01.aspx?PCODE=I0030001 Law of Extradition] ({{zh|t=[[s:zh:引渡法 (中華民國)|引渡法]]}}) prohibits a citizen of the Republic of China from being extradited from Taiwan, unless the person acquired the citizenship after the request for extradition is made.</ref> Russia,<ref>Constitution of the Russian Federation, Article 61</ref> Saudi Arabia,<ref>{{cite news |url=http://the-japan-news.com/news/article/0005401953 |publisher=[[Jiji Press]] |title=Saudis: No extradition of suspects to Turkey |date=10 December 2018 |quote=“We do not extradite our citizens,” Adel al-Jubeir told a news conference in Riyadh at the end of a summit of Gulf Cooperation Council states. |access-date=10 December 2018 |archive-url=https://web.archive.org/web/20181211052703/http://the-japan-news.com/news/article/0005401953 |archive-date=11 December 2018 |url-status=dead }}</ref> Slovenia, Switzerland,<ref>[https://www.admin.ch/opc/en/classified-compilation/19810037/201301010000/351.1.pdf Swiss Federal Act on International Mutual Assistance in Criminal Matters] {{Webarchive|url=https://web.archive.org/web/20190112030147/https://www.admin.ch/opc/en/classified-compilation/19810037/201301010000/351.1.pdf |date=12 January 2019 }}, Article 7</ref> Syria,<ref>{{Cite web|url=https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/91436/106031/F-931434246/constitution2.pdf|title=Article 38 of the constitution of the Syrian Arab Republic}}</ref> Turkey,<ref>{{cite web|url=https://rm.coe.int/turkey-country-information-template-extradition/1680a1bc3d|archive-url=https://web.archive.org/web/20211128232648/https://rm.coe.int/turkey-country-information-template-extradition/1680a1bc3d|url-status=live|title=Turkey – National Procedures for Extradition|archive-date=2021-11-28}}</ref> the UAE, and Vietnam<ref>[https://moj.gov.vn/qt/tintuc/Pages/van-ban-chinh-sach-moi.aspx?ItemID=311 Các trường hợp từ chối dẫn độ cho nước ngoài] – Vietnam's Ministry of Justice</ref> have laws against extraditing their own citizens to other countries' jurisdictions. Instead, they often have special laws in place that give them jurisdiction over crimes committed abroad by or against citizens. By virtue of such jurisdiction, they can locally prosecute and try citizens accused of crimes committed abroad as if the crime had occurred within the country's borders (see, e.g., [[trial of Xiao Zhen]]). [[Israeli law]] permits the extradition of Israeli citizens who have not established residency in Israel; resident citizens may be extradited to stand trial in a foreign country, provided that the prosecuting country agrees that any prison sentence imposed will be served in Israel.<ref>{{cite web |url=https://tile.loc.gov/storage-services/service/ll/llglrd/2021700332/2021700332.pdf |title=Foreign Law Brief: Israel: Extradition Law – Its Evolution and the Effect of the Sheinbein Case |last=Levush |first=Ruth |date=2002 |publisher=The Law Library of Congress, Global Legal Research Directorate |access-date= 11 August 2024 |quote= Current law generally allows the extradition of nationals who are not residents of Israel. It also allows the extradition of those who are both nationals and residents at the time of committing the offense for which the extradition is sought. This extradition, however, is for the purpose of standing trial in the requesting country, while any prison sentences are to be served in Israel.}}</ref><ref>{{cite web |url=https://rm.coe.int/israel-extradition-19-/168097d9a1 |title=Israel – National Procedures for Extradition |author=<!--Not stated--> |date= 12 September 2019 |website= |publisher=[[Council of Europe]] PC-OC |format=PDF |access-date=11 August 2024 |quote=When the extradition of an Israeli citizen who is also a resident, is requested, Israel requires a preliminary commitment that the requested person will be allowed to serve the prison sentence, if imposed, in Israel.}}</ref>

=== Right to private and family life ===
In a limited number of cases [[Article 8 of the European Convention on Human Rights]] has been invoked to stop extradition from proceeding. Article 8 states that everyone has the right to the respect of their private and family life. This is achieved by way of balancing the potential harm to private life against the public interest in upholding the extradition arrangement.<ref name="Fitzgerald" /> While this article is useful as it provide for a prohibition to extradition, the threshold required to meet this prohibition is high.<ref name="Fitzgerald" /> Article 8 does explicitly provide that this right is subject to limits in the interests of national security and public safety, so these limits must be weighed in a balancing of priority against this right. Cases where extradition is sought usually involve serious crimes so while these limits are often justified there have been cases where extradition could not be justified in light of the individual's family life. Cases to date have mostly involved dependant children where the extradition would be counter to the best interests of this child.<ref name ="Fitzgerald" /> In the case of ''FK v. Polish Judicial Authority'' the court held that it would violate article 8 for a mother of five young children to be extradited amidst charges of minor fraud which were committed a number of years ago.<ref>[https://www.supremecourt.uk/cases/docs/uksc-2012-0039-judgment.pdf F-K v Polish Judicial Authority 2012 UKSC 25]</ref> This case is an example of how the gravity of the crime for which extradition was sought was not proportionate to protecting the interests of the individual's family. However the court in this case noted that even in circumstances where extradition is refused a custodial sentence will be given to comply with the principles of [[international comity]].<ref>{{Cite web|url=https://www.supremecourt.uk/cases/docs/uksc-2012-0039-judgment.pdf|title=F-K v Polish Judicial Authority 2012 UKSC 25 para 132}}</ref> In contrast the case of ''HH v Deputy Prosecutor of the Italian Republic, Genoa'' is an example of when the public interest for allowing extradition outweighed the best interests of the children. In this case both parents were being extradited to Italy for serious drug importation crimes.<ref>HH v Deputy Prosecutor of the Italian Republic, Genoa 2012 UKSC 25 para 132.[https://www.supremecourt.uk/cases/docs/uksc-2012-0039-judgment.pdf]</ref>
Article 8 does not only address the needs of children, but also all family members, yet the high threshold required to satisfy Article 8 means that the vulnerability of children is the most likely circumstance to meet this threshold. In the case of ''Norris v US (No 2)'' a man sought to argue that if extradited his health would be undermined and it would cause his wife depression.<ref>Norris v US (No 2) [2010] UKSC 9 as discussed in J.R. Spencer Extradition (2013). The European Arrest Warrant and Human Rights, The Cambridge Law Journal 250 at 251.</ref> This claim was rejected by the Court which stated that a successful claim under Article 8 would require "exceptional" circumstances.<ref>J.R. Spencer Extradition (2013). The European Arrest Warrant and Human Rights, The Cambridge Law Journal 250 at 251</ref>

Suicide Risk: Cases where there is risk of the individual committing suicide have also invoked article 8 as the public interest of extraditing must be considered in light of the risk of suicide by the individual if extradited. In the case of ''Jason's v Latvia'' extradition was refused on these grounds, as the crime for which the individual was sought was not enough of a threat to public interest to outweigh the high risk of suicide which had been assessed to exist for the individual if extradited.<ref>Jasons v Latvia  [2004] EWHC 1845.</ref>

=== Fair trial standards ===
Consideration of the [[right to a fair trial]] is particularly complex in extradition cases. Its complexity arises from the fact that while the court deciding whether to surrender the individual must uphold these rights this same court must also be satisfied that any trial undertaken by the requesting state after extradition is granted also respects these rights. Article 14 of the [[ICCPR]] provides a number of criteria for fair trial standards.<ref>{{cite web |url=https://treaties.un.org/doc/publication/unts/volume%20999/volume-999-i-14668-english.pdf |title=International Covenant on Civil and Political Rights}} Adopted by the General Assembly of the United Nations on 19 December 1966.</ref> These standards have been reflected in courts who have shown that subjective considerations should be made in determining whether such trials would be ‘unjust’ or ‘oppressive’ by taking into account factors such as the duration of time since the alleged offences occurred, health of the individual, prison conditions in the requesting state and likelihood of conviction among other considerations.<ref>{{cite AustLII|FCAFC|14|2013|litigants=O'Connor v Adamas |parallelcite=(2013) 210 [[Federal Court Reports|FCR]] 364 |pinpoint=[323]-[331] |courtname=auto}}.</ref> Yet exactly how the standards provided for in ICCPR are incorporated or recognised by domestic courts and decision makers is still unclear although it seems that these standards can at a minimum be used to inform the notions of such decision makers.<ref name="Johnston" />{{rp|35}} If it is found that fair trial standards will not be satisfied in the requesting country this may be a sufficient bar to extradition.

Article 6 of the ECHR also provides for fair trial standards, which must be observed by European countries when making an extradition request.<ref name ="Johnston" /> This court in the ''Othman'' case, whom if extradited would face trial where evidence against him had been obtained by way of torture.<ref>Othman (Abu Qatada) v UK [2013] 55 EHRR 1.</ref> This was held to be a violation of Article 6 ECHR as it presented a real risk of a ‘flagrant denial of justice’.<ref name="Fitzgerald" /> The court in Othman stressed that for a breach of Article 6 to occur the trial in the requesting country must constitute a flagrant denial of justice, going beyond merely an unfair trial.<ref>Othman (Abu Qatada) v UK [2013] 55 EHRR 1 para 258–262.</ref> Evidence obtained by way of torture has been sufficient to satisfy the threshold of a flagrant denial of justice in a number of case. This is in part because torture evidence threatens the "integrity of the trial process and the rule of law itself."<ref>Rwanda v Brown [2009] EWHC 770 para 264</ref>