Transcript Document

Workshop on strengthening
international legal cooperation among
OSCE Member States to combat
transnational organized crime (Vienna,
7-9 April 2008)
United Nations tools and best practices
in extradition
Model Treaty on Extradition - Legislative
background
General Assembly resolution 45/116 of 14
December 1990
Adopted on the recommendation of the Eighth United Nations
Congress on the Prevention of Crime and the Treatment of Offenders
(Havana, Cuba, 1990).
Model Treaty on Extradition - Legislative
background
General Assembly resolution 52/88 of 12
December 1997
Revisions and complementary provisions to keep up with new
developments and reflect the most recent trends in the area of
international cooperation in criminal matters.
An effective tool for technical assistance
Model Treaty on Extradition: A useful guide to assist Member States in
negotiating extradition treaties.
Accompanied by a Manual with commentaries and guidance on the
implementation of extradition treaties.
Also supplemented by a Model Law on Extradition (2004), used as a
guidance for the elaboration of domestic extradition legislation.
An effective tool for technical assistance
Both the Model Treaty and the Model Law conducive to promotion of
international cooperation.
Broad use in technical assistance programmes and activities of
UNODC.
Necessary supplement of training material to promote adherence to
U.N. instruments against drugs, transnational organized crime,
corruption and terrorism.
An overview of the basic provisions
Extraditable offences-Double criminality
requirement (article 2)
• Offences punishable under the laws of both Parties by imprisonment
for a maximum period of at least [one/two] years or by a more severe
penalty.
• Extradition for enforcement of sentence: at least [four/six] months to
be served in the requesting State.
• Determination of double criminality: different categorizations or
names of offences shall not matter (see also art. 43, para. 2 of the U.N.
Convention against Corruption).
An overview of the basic provisions
Extraditable offences-Double criminality
requirement (article 2)
• Extradition for fiscal offences may not be refused
(see relevant provisions of the U.N. Conventions against Illicit Traffic
in Narcotic Drugs and Psychotropic Substances, Transnational
Organized Crime and Corruption).
• Accessory extradition: extradition possible for offences not carrying
the minimum penalty if request is granted for at least one extraditable
offence.
An overview of the basic provisions
Mandatory grounds for refusal (article 3)
• Political offence exception, but non-application for offences for which:
 States assumed obligation to prosecute in lieu of extradition;or
 There was agreement not to consider them as political.
• Discrimination clause.
• Military offences.
• Non bis in idem/Double jeopardy.
• Lapse of time or other immunity from prosecution.
An overview of the basic provisions
Mandatory grounds for refusal (article 3)
• Torture or other cruel, inhuman or degrading treatment or punishment
in the requesting State.
• Judgement rendered in absentia.
An overview of the basic provisions
Optional grounds for refusal (article 4)
• Nationality of the person sought, but obligation to prosecute when
refusing to surrender. Other alternatives possible, such as temporary
surrender for trial only.
• Offence within jurisdiction of requested State: decision to refrain from
prosecution or terminate domestic proceedings.
• Pending prosecution in the requested State for the offence for which
extradition is requested.
• Death penalty.
• Extraterritoriality: exercise of jurisdiction by requesting State viewed
as overly broad.
An overview of the basic provisions
Optional grounds for refusal (article 4)
• Commission of the offence, in whole or in part, in the requested State.
• Extraordinary or ad hoc tribunals to try or sentence the person sought
in the requesting State.
• Humanitarian considerations (age, health or other personal
circumstances).
An overview of the basic provisions
Channels of communication and required
documents (article 5)
Diplomatic channels or directly between ministries of justice or other
authorities designated for that purpose.
Content of the request
In all cases:
• Information to identify the person sought.
• Text of relevant laws establishing the offence-statement of penalty that
can be imposed.
An overview of the basic provisions
Content of an extradition request (article 5)
Extradition for purposes of prosecution:
• (Certified copy of) arrest warrant issued by competent judicial
authority.
• Statement of the offence.
• Exposition of the facts for which extradition is sought.
An overview of the basic provisions
Content of an extradition request (article 5)
Extradition for purposes of enforcing a sentence:
• (Certified copy of) judgement setting out the conviction and the
sentence imposed.
• Where applicable, the exent to which the sentence remains to be
served.
• Statement of the offence.
• Description of acts or omissions constituting the offence.
An overview of the basic provisions
Content of an extradition request (article 5)
Additional requirements where the person has been convicted in
absentia.
Generally, contracting Parties may reduce or expand the model list to
meet their specific needs, but important to facilitate international
cooperation.
Extradition Request Writer Tool under preparation by UNODC.
An overview of the basic provisions
Evidentiary requirements
Differences between common law and civil law States as to the
documents required to be presented in an extradition case.
Supplementary explanatory note in the Model treaty: emphasis on the
need to facilitate cooperation.
U.N. instruments: States are called to simplify evidentiary
requirements.
An overview of the basic provisions
Simplified extradition procedure (article 6)
Simplified extradition procedure: Waiving extradition requirements if
the person sought consents.
Waiver of the rule of speciality requirements also possible.
U.N. instruments: States are called to expedite extradition proceedings
subject to their domestic laws.
An overview of the basic provisions
Provisional arrest (article 9)
Cases of urgency: application for provisional arrest pending
submission of extradition request.
Use of ICPO-Interpol channels and/or direct transmission of
applications between central authorities.
Content of provisional arrest requests, including a statement that
extradition is to be requested.
An overview of the basic provisions
Provisional arrest (article 9)
Implementing legislation should be in place to specify conditions for
the issuance of a provisional arrest warrant and other procedural
aspects.
See section 20 of the Model Law on Extradition.
An overview of the basic provisions
Decision on the request, surrender of the person
and property (articles 10-13)
Decicion on the extradition request and proceedings leading to the
surrender of the person sought and any property found: application of
the provisions of the domestic law
(See also sections 21-32 of the Model Law on Extradition).
An overview of the basic provisions
Rule of speciality (article 14)
No criminal proceedings against the person surrendered to the
requesting State or re-extradition to a third State for offences
committed before surrender other than those for which extradition was
granted.
Unless:
• Consent of the requested State.
• Simplified extradition procedure (discretional).
• Person not leaving the requesting State after the period specified or
returning voluntarily to it.
An overview of the basic provisions
Rule of speciality (article 14)
Explanatory note accompanying the provision:
Recommendation to exclude from the application of the rule
extraditable offences provable on the same facts and carrying the same
or lesser penalty as the original offence for which extradition was
requested.
An overview of the basic provisions
Transit (article 15)
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Specific provision to enable:
Requests for transit permission.
Execution of transit requests.
Detention of the person in custody while being transferred.
Detention of the person in custody in the event of unscheduled landing.
An overview of the basic provisions
Transit (article 15)
Implementing legislation required to authorize a State to comply with
transit obligations
(See sections 37-40 of the Model Law on Extradition)
Text of the Model Treaty and the Model Law on
Extradition in UNODC website
http://www.unodc.org/pdf/model_treaty_extraditio
n.pdf
http://www.unodc.org/pdf/model_law_extradition.pdf
UNODC Working Tools
● See them at www.unodc.org
 Model legislation and guidelines
 Directory of Central Authorities for casework (based on 1988 UN
Convention)
 EWG best practices, forms, checklists in the fields of extradition,
MLA, confiscation, certain types of special investigative
techniques, witness protection
 Current and pending initiatives
• MLA request drafting software
• Case evidence development and analysis software
• Extradition request drafting software
Flexible laws and treaties (1)
Enable
extradition without a treaty
Make an inventory of your extradition laws and treaties
Enable temporary and simplified consent surrender
Consider adoption of a broad “extradite or prosecute” duty
Provide for/simplify judicial review and appeal processes
If two or more countries request extradition of a person,
determine objectively which request should prevail
Recognize /execute foreign arrest warrants, when appropriate
(e.g. European Arrest Warrant)
Flexible laws and treaties (2)
Simplify
double criminality requirement
Limit refusal grounds to the essential minimum (restrict political
offence exception and other traditional grounds)
Reduce/eliminate authentication /certification requirements
Permit the presence of foreign officials during proceedings
Effective Extradition Casework Practice
Ongoing extradition requests- Planning
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Find your fugitive
Make greater use of Interpol
Resort to provisional arrest when needed and in view of submission of
extradition request
Is there an extradition treaty/arrangement with that country?
If “Yes, are the offences extraditable offences?
 dual criminality
 rule of speciality
If “No”
 is extradition possible without it, based on other legal bases?
Compiling the request (1)
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Find out what information you need to include (treaty/law)
Consult! - Your own and the foreign Central Authority, your
government staff located abroad and the foreign government staff
located in your country
Gather all evidence / documents supporting the request
Include a summary of the facts
 describing the evidence in support of your case
 covering all relevant acts and omissions of the offence(s)
 provide as much evidence as required by requested State
Compiling the request (2)
Anticipate
and deal with particular issues before they arrive
 arrest, search and seizure
 custody or bail/conditional release
 potential grounds for refusal (death penalty, political
offence, discrimination clause, fair trial, asylum cases)
 in absentia proceedings
 evidentiary requirements
Send a draft request to the requested State for feedback
 Minimize translation problems
Transmitting the request
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Most still have to be sent via the diplomatic
channels
Ensure your Foreign Ministry understands the
urgency
Send it by the fastest possible secure means
Use modern technology
Incoming extradition requests
First responses
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Incoming requests may start with
 a formal request through the diplomatic channel, with or
without prior notice
 a provisional arrest request via Interpol
If you receive a request without warning, you need to quickly
 acknowledge receipt
 find the fugitive
 check for dual criminality
 check documents for treaty/ law compliance
 notify any problems encountered
Provisional arrest requests
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If provisional arrest request before extradition request
arrives
 beware - it can trigger an extradition request receipt
deadline
 always consult Central Authority before a provisional
arrest
Completing the process (1)
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Get authorization to proceed to execute the request
Ensure timely arrest, and if possible detention in custody
Ensure the executing court has all the papers
Assist the court - its experience or knowledge may be limited
Completing the process (2)
Advise
the requesting State of status and progress
After the proceedings
ensure the necessary documentation is completed
ensure all statutory / treaty deadlines are met
plan the transit carefully
keep track of the case until the fugitive is surrendered
coordinate the transfer of the fugitive with the authorities
of the requested State
 Use other judicial cooperation tools if extradition not possible
(e.g. mutual legal assistance and transfer of criminal
proceedings in case of domestic prosecution)
For further information:
United Nations
Office on Drugs and Crime
Division for Treaty Affairs
Crime Conventions Section
P.O. Box 500
A - 1400 Vienna, Austria
Web: http://www.unodc.org
Tel.: +43-1-26060-5586
Fax: +43-1-26060-5841
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