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International Law Extradition Case Analysis Completed by University of Outline 1. Introduction 2. Example Case Study 3. Extradition proceedings and determinants 4. Understanding habeas corpus principles 5. Conclusion 6. References Introduction Given all the controversy and uncertainty that accompany a request for extradition, and the problems alluded to in the presented case, it should come as no surprise that extradition does not always offer a solution to the international dilemma that arises when an accused criminal crosses borders. The states involved in the example provided may not have extradition treaties, and may not want to comply voluntarily with requests for extradition. Even if a treaty exists between the republics of Cucu and Papa, the state from which extradition is sought (republic of Papa) may not want to honor the extradition treaty or may question its validity. For example, when diplomatic relations between states become strained, existing treaties may be ignored. Also, in a state that has recently gained independence from a colonial power, there is some question about whether the new state is bound by the treaties of the old; the new political leaders may claim they have no such obligation. State from which extradition is sought (republic of Papa) may also hesitate on the grounds that the individuals in question (Mr. Jojo and Mrs. Lulu) had engaged in a political offense and hence should be excepted from extradition, as a political refugee and entitled to asylum. Alternately, there may be concern about the treatment that will be afforded the individual once extradition is complete. These individuals are well-known and highly controversial figures — hence, questions arise as to whether the individuals will receive a fair trial in the receiving country. Further, will they be subject to excessive punishment by the receiving state? In other words, will they be afforded minimum due process (Harris 1967) and protection of their substantive rights under international and national law (Kester 1988)? Even in cases that involve less controversial individuals, the question of whether to grant extradition is usually determined by courts within states which are influenced by local political and social variables.

 

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In short, their decisions may exhibit biases. Even if these courts do manage to be objective, they tend to add delay and procedure to a practice already encumbered with procedural and legal complexity. Thus, it is not too surprising that states sometimes circumvent extradition through use of their immigration laws (Bassiouni 1983) or--on the other side--engage in "extralegal" steps to obtain individuals who are charged with violating either domestic law or international criminal law. In order to gain a more practical understanding of this case and in order to be able to advise the government of Papa in the most effective and professional way, we shall take a look at a case study that examines decision making of the federal courts of the United States in extradition proceedings. The objective is to determine what factors are related to the decision making of Papa and Cucu courts in extradition cases. Example Case Study Extradition proceedings should be initiated when the Papa Department of State receives an extradition request from a representative of a foreign state (Bassiouni 1983). The request may only be made pursuant to a treaty, and the foreign state may seek either extradition or the provisional arrest of a fugitive. After receiving the request, the State Department forwards it to the Justice Department, which then places it with the Pap Justice or Attorney’s Office in the area in which the fugitive is or may be located. The attorney thereafter files an extradition request with a local district court. To illustrate how it is done in the US, most often, local prosecutors of the U.S. Attorney's Office or the Department of Justice will represent the state requesting extradition (Kester 1988). Another possibility is that the extradition request or complaint may be filed directly with a district court by private counsel retained by the state (1860, 9 Opinion Attorney General 497). Since 1988, U.S. Code Title 18, Section 3184, also provides that a complaint may be filed with a district court for the District of Columbia circuit in the event that the exact location of a fugitive is unknown.

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After an extradition request is filed with a district court, the U.S. attorney will request that the court issue an arrest warrant for the individual whose extradition is sought. Either a judge or a magistrate then issues the warrant (Hall 1987). If an arrest is made, the individual is entitled to a hearing on the question of bail (Bassiouni 1983). If we take the US model as an example, in the case with Papa, after a bail determination is made, a probable cause hearing is conducted under the appropriate Code (it is Code Title 18, Section 3184 (section 5) in the US). The purpose of the probable cause hearing is not to determine the guilt or innocence of the individual charged with a crime-whom, in this context, we will refer to as the “relator”--but is limited to whether the evidence of criminality is sufficient to sustain charges against the respondent under the provisions of the applicable treaty (the example in the US is Re Extradition of Prushinowski, 574 F.Supp. 1439 [E.D. N.C. 1983]). The burden of proof is on the state seeking extradition (Cucu in our case). It must produce competent evidence to support the belief that the accused has committed the charged offense (using the US example, Quinn v. Robinson, 783 F.2d 776 (9th Cir. 1986), cert. denied 479 U.S. 882 [1986]). It need not prove that the accused is guilty beyond a reasonable doubt, but only that there are reasonable grounds to believe the accused guilty. Extradition proceedings and determinants The following must be established in a probable cause extradition hearing: (1) that the crime was committed in the state requesting extradition; (2) that the offense charged is an offense in the United States; (3) that the person arrested and brought before a judge or magistrate is the person accused of committing the offense; (4) that the evidence establishes reasonable grounds to believe the accused is guilty of the offense; and (5) that the offense is an extraditable one pursuant to the terms of a treaty.

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Extradition proceedings are not strictly criminal or strictly civil, but they are hybrid proceedings (Kester 1988). The Federal Rules of Evidence do not apply to these proceedings (using the US example,Re Sindona, 584 F.Supp. 1437 [E.D. N.Y. 1984]). Hence, hearsay statements are generally admissible, and the accused is deprived of many rights normally accorded a defendant in a criminal case (Kester 1988). Nevertheless, one whose extradition is sought is entitled to some due process protection under the United States Constitution, including the right to a hearing. Understanding habeas corpus principles If the Papa court rules in favor of extradition, a “certificate of extraditability” is sent to the Papa State Department, which issues the final extradition order (Bassiouni 1983). However, the head of the Papa’s republic has the discretion to refuse to extradite an individual for any reason, including concern over deficiencies in the judicial process of the requesting state (Klester 1983). Because a finding of extraditability is not a final order, the collateral attack available is through a writ of habeas corpus, to be filed with a federal district court. Suggesting some disregard for the due process rights of those whose extradition is sought, a local court judge who issues an order of extraditability in a probable cause hearing is not thereafter barred from hearing a subsequent habeas corpus petition challenging the validity of that same order. If the habeas corpus petition is denied, relators may bring their case to a Papa’s Court of Appeals; beyond this, they may file petitions for writs of certiorari with the Papa’s Supreme Court (Using US as an example, 28 U.S.C. Sections 2241 and 2101 [ 1976]). In certain policy areas, such as environmental policy and Papa’s policy relating to refugees and asylum seekers, Papa’s high court judges may not be greatly constrained in their decision making by the law. A major reason for this is that the law (for example, previous cases, statutes, constitutional provisions, agency regulations, executive orders) tends to be vague.

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Hence, judges wield a great deal of discretion and may be subject to the influence of non-legal variables. Conclusion In the case of the US, it has indeed been widely suggested that legal standards are quite vague in extradition proceedings presided over by U.S. federal courts. As John Kester (1988) suggests: “The substantive standards and even some of the procedures by which United States courts deal with extradition matters are scarcely spelled out by statute or in the hundred or so extradition treaties that the United States has entered into with other countries” (Kester 1988, p. 1442). Papa’s Case Law is developing, but much of it is based on what may be regarded as antiquated decisions of the Papa’s Supreme Court (Kester 1988). Further adding to the paucity of clear legal guidelines is that extradition law is set forth in those extradition treaties that the republic of Papa has entered into with other states. Even the status of extradition proceedings is unclear. As noted above, they are referred to as hybrid proceedings, neither criminal nor civil in nature. Some suggest that extradition cases are sui generis, and that judges simply improvise their decisions (Kester 1988). The general decision that Pap’s government will made depends on careful analysis of the warrant’s conditions and the settings of the case. All of the factors (including proving guilt and ensuring that Cucu is able and willing to organize the legitimate and unbiased trial to Mr. Jojo and Mrs. Lulu) have to be adhered to before the decision on extradition is made.

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