Asylum and Extradition
Committing an offence in one state and fleeing to other sounds quite impossible, but lately this has become a frequent crime. What if I tell you that you can commit a crime and get away with it in another state and be protected by that particular state’s laws, that too legally. But on the other hand, to actually bring this to justice there are laws or to be specific, “international laws”. The terms associated with it are “asylum” and “extradition”.
The term asylum is derived form the Latin word “Asylia” which means inviolable space. This term is referred in those cases where the territorial state refuses to surrender a person to the state which is requesting, and provides shelter & protection in its own territory. Thus, asylum involves two elements-
A shelter which is more than just a temporary settlement,
Protection of the person from the authorities in control of asylum.
In a nutshell, asylum is granting protection to a person of another state in one’s territory and being protected by its laws.
There are no specific laws based on asylum, however there are various conventions and treaties which provides certain rights to people which can be exercised, for example-
Article 14 of the Universal Declaration of Human Rights provides the right to seek asylum in any country to protect them from persecution.
Article 33(1) of Refugee Convention 1951 prohibits the expulsion or return of refugees and asylum seekers if their life is in danger.
Article 18 of the Charter of Fundamental Rights of the European Union also provides that the right to asylum is guaranteed as per the rules of the Geneva convention.
The articulation of the right to asylum signifies that it is not the right of an individual, but the right of the state to grant asylum. It is discretion of the state to grant asylum or not.
Asylum is of two types- territorial and extra-territorial.
When the asylum is granted to asylee within the state’s territory, it is called territorial asylum. The he exclusive control of every sovereign state over its territory backs up the right of a state to grant territorial asylum. It is an exception to the extradition.
When the asylum is granted outside the territory of its state, such as in warships, legation consular premises, or its Embassy situated in a different country, it is extra-territorial asylum.
The benefit of asylum is basically that it saves the lives of the people form the authorities’ jurisdiction when the person fears that he/she might not be given a fair trial and would have to face persecution.
Cases regarding asylum-
Assange v. The Swedish Prosecution Authority
In the following case, Jullian Assange, the founder of WikiLeaks was accused of rape and molestation by Sweden Government. He was granted asylum in England at the Ecuador Embassy in June 2012. The reason that he gave was that his human rights would be violated if he would be sent to Sweden.
Applicant a v. Minister for Immigration & Ethnic Affairs
In 1980, China had adopted the one child policy. In the abovementioned case, the Chinese citizens looked up for asylum in Australia as they claimed that they would be persecuted because they were expecting a second child which would be troublesome as the laws in China regarding the population was strict. Whosoever surpassed the limitation was forced or coerced to undergo sterilization.
Colombia v. Peru
This is a landmark case which gave details on diplomatic asylums. In this case a citizen of Peru who was also a political leader, was accused of instigating a military rebellion. He was provided asylum by Colombian embassy but wasn’t allowed to leave the country. When the dispute arose between Peru and Colombia, the case was referred to International Court of Justice. The question was regarding the right to grant asylum. The court observed that there is no international treaty regarding diplomatic asylum and only Latin American as well as Central American countries have these rights. Diplomatic asylums are the ones which are provided to political offenders and believe that if they are prosecuted, they will face unfair trial. The courts held that it is a settled fact that common criminals cannot be granted asylum.
In India there are no specific laws related to asylum. India is not even a part of the Universal Declaration of Human Rights, still India provided asylum in certain cases like Dalai Lama and his Followers were given asylum in 1955 as they were facing atrocities for a long time in China.
For a state to punish a person who has committed a crime elsewhere is difficult because of lack of jurisdiction. In such cases these persons are surrendered to the state where the crime has been committed, this is called extradition.
The term extradition has been derived from two Latin words- ex and traditum, which collectively means “delivery of criminals”. According to Oppenheim, “extradition is the delivery of an accused or convicted individual to the state where he is accused of or has been convicted of a crime by the state on whose territory he happens for the time to be.
The objective of extradition is to prevent criminals who fled from jurisdiction to escape from the country in which they have been accused or convicted crime.
Reasons to extradite a person-
Jurisdiction- a person cannot be punished or prosecuted in a state where he has fled away due to lack of jurisdiction.
Extradition has a deterrent effect as it gives a warning to the criminals that they cannot escape law.
The most important one is that it is a step towards international co-operation. Thus, it fulfils one of the purposes of U.N. as given under Para 3 of Article 1 of the charter.
Extradition generally depends upon the treaties bilateral between two countries. If there isn’t any treaty between the concerned countries then it would totally depend upon the security and law & order of the country in which person is residing for the time being to be extradited or not.
Laws of extradition
Law of extradition is a dual-law, it has national as well as international operation. Extradition of a state is decided by municipal courts of a state, it is also part of international law as it governs the relations between two states.
Bilateral treaties, national laws of states and judicial decisions have led to developing certain principles regarding extradition which are considered as general rules of international law. They might be classified as following-
No extradition of political criminals- it is a rule of international law that political offenders shall not be extradited. The practice of non-extradition for political crimes began with the French Revolution of 1789 which was later adopted by all the countries. The problem to define who a political criminal is, is still prevalent. A political crime is sometimes considered if committed from a political motive or if committed for apolitical purpose, or it may be confined to certain offences like treason.
In case of Re Castioni, the Swiss government requested for the extradition of Castioni, who was charged with murdering a member of the state council. The Queen’s bench of England held that Castioni was guilty of political crime and that he would not be extradited.
In case of Re Meunier, an anarchist attacked Paris café and attacked two bunkers by detonating bombs. After committing the offence he fled to England. The accused contended that it was political crime when France asked for his extradition. The court held that, for an offence to be political, there should be two or more oppositions in the state, each wanting to establish its government. In the following case it was held that the offence committed was not political.
Oppenheim has also pointed out that up to the present day all attempts to formulate a satisfactory conception of the term failed and these are the following attempts-
Attentat clause- this clause was enacted by the Belgium in 1856 in case of Jacquin, who murdered Napolean III. It provided that murder of head of government or of a member of his family should be considered a political crime.
The Russian project of 1881- emperor Alexander II was murdered, influenced by this Russia invited other states to hold an international conference at Brusselles to consider proposal, that murder or attempt to murder should not be considered as political crime. But it failed to materialise.
No extradition military criminals
No extradition for religious crimes
The rule of speciality- an accused is extradited for a particular crime, and the country to which the accused is extradited can only prosecute the person for the crime for which he was extradited. This decision was given in the case of U.S. v. Rauscher. The same law prevails in India under section 31(a) of Extradition Act 1962.
Double criminality- the doctrine of double criminality denotes that a crime must be an offense recognized in the territorial as well as in the requesting state. No person is extradited unless this condition is fulfilled.
Crime should appear prima facie- there should be sufficient evidence for crimes relating to extradition, this was held in Tarasov Extradition Case (1963).
Terms and conditions- in case of Sarvarkar (1911), who was being brought to India to be prosecuted, escaped at port of Marseille but was later apprehended by French police and was given to British police. Later, government of France requested the British to return Sarvarkar as the rules in relation to his extradition was not fulfilled. The court decided that international law does not impose any obligation upon the state whereby on the ground that criminal may be returned.
Accessory- when a person is charged with having been an accessory in a crime committed in a foreign state which seeks extradition, it is not necessary that at the time of offence the said person must be present in the said foreign state. This was held in Rex v. Godfrey. In India, same view was adopted by SC in case of Mobarak Ali Ahmed v. State of Bombay.
Treaty- extradition is a matter of bilateral treaties. It has been held that there must be a formal treaty, not just an agreement or notification. This point was also given in the Tarashov Extradition case (1963).
No extradition of their own citizens- generally states do not allow the extradition of their own citizens. In Regine v. Wilson, it was observed that where the high contracting parties expressly provide that their own subject shall not be delivered up as in case of treaty between England and Switzerland.
Abu Salem’s Extradition Case
India does not have any extradition treaty with Portugal. However, when Abu Salem, an accused in 1993 Mumbai blast and an underworld don fled to Portugal along with his wife Monica Bedi, in the absence of a treaty, extradited Abu Salem to India after latter gave an assurance that he would not be given a death sentence.
Later HC of Portugal passed an order on July 14, 2004, along with reasons for his extradition to India.
Extradition of Vijay Mallya
Vijay Mallya, as we know the owner of Co. Kingfisher took loan of more than Rs. 9000 Crores and fled to U.K. on March 2, 2016. The government of India decided to seek extradition of him from U.K. on February 2017, India made a formal request for extradition of Mallya as per extradition treaty. As a first step, Vijay Mallya was arrested by Scotland Yard and was presented before the U.K. court. This case is still pending in the court as of now.
Nirav Modi Case
The PNB scam case or popularly known as Nirav Modi case was band fraud case. In which the accused took a loan of around Rs. 12000 Crores and fled. He took asylum in U.K., and recently on 26 February 2021 the court gave permission for the extradition for the accused.
To sum up, it can be said that asylum stops where extradition begins. Extradition and Asylum are political acts of States and it differs from state to state depending upon treaties, internal and external policies. Extradition and Asylum both have pros and cons before taking any decision States should vividly ponder on their decisions.
By Kartik Vijay