12:00 AM, June 21, 2014 / LAST MODIFIED: 01:53 AM, March 08, 2015

Extraditing criminals

Extraditing criminals


THE sensational seven murders at Narayanganj and the fugitive status of the principal accused Noor Hossain, who is now learnt to be in police custody in neighbouring West Bengal State of India, has brought into sharp focus the issue or otherwise of the matter of extraditing the said accused. Under the circumstances, it would be proper to understand that extradition is a legal process by which a person suspected or convicted of a criminal offense is transferred from one country to another for the purposes of prosecution, or to serve a sentence already imposed.
It is generally accepted that countries have no general obligation to surrender a person who is within their territory. On account of that, many countries have signed bilateral and multilateral extradition treaties agreeing to transfer 'fugitive offenders' in certain circumstances. Extradition may still be possible even where there is no treaty or agreement between two countries but this will depend on the law of the requested State.
One of the most important aspects of an extradition treaty is the determination of those offences for which extradition is possible. There are two main types of extradition arrangements; those that rely on lists, and those that follow the principle of 'dual criminality.' The former specifies a list of crimes for which extradition is possible; the latter usually specifies that extradition will be possible if the act is an offence in both the requesting and requested State and is punishable by a minimum period of imprisonment, often one year in both countries.
There has been much discussion on the Interpol's 'Red Notice' through which countries seek the arrest or provisional arrest of wanted persons overseas, with a view to extradition. It needs to be clearly spelt that an Interpol Red Notice is not an international arrest warrant but merely a means of streamlining cooperation between Interpol Member countries on the arrest and extradition of fugitive offenders. A Red Notice is essentially a notification that a valid warrant exists in the country that is seeking the apprehension of the fugitive.
It needs to be emphasised that an Interpol Red Notice may not in itself allow the police to arrest the wanted person. This depends upon the domestic law of the land on whose territory the wanted person is found. In some States, the domestic courts will have to issue a domestic warrant pursuant to the extradition request or Interpol Red Notice before the police can cause an arrest. Many countries view an Interpol Red Notice as a valid request for arrest. However, a Red Notice does not oblige the requested State to monitor or arrest the individual.
India and Bangladesh signed the extradition treaty on January 28, 2013. In addition, in 2010 the following accords were signed between India and Bangladesh: Agreement on mutual legal assistance on criminal matters; Agreement on the transfer of sentenced persons; and Agreement on combating international terrorism, organised crime, and illicit drug trafficking.
It is relevant to note that the said extradition treaty has refusal provisions too. Extradition of any person may be refused by the country concerned on grounds of national security. Further, political detainee would not be brought under the purview of this treaty. Interestingly, India is hoping that extradition treaty with Bangladesh will pave the legal way for Bangladesh to deport Anup Chetia of United Liberation Front of Assam, considered a separatist group in Northeast India.
Anup Chetia was arrested in Bangladesh in 1997 and sentenced to seven years in prison for illegal entry and possession of firearms. Bangladesh has sought India's help in nabbing the killers of Bangladesh's founding father Bangabandhu Sheikh MujiburRahman. The suspects, Captain Abdul Mazed and Risalder MoslehUddin, are believed to be hiding in India.
Anup Chetia's petition is reportedly pending in court since 2003. Bangladesh has reportedly said that Anup Chetia has sought political asylum, which does not fall under the extradition treaty signed with India. Some quarters in India believe that Bangladesh's unwillingness to hand over Anup Chetia to India is affecting the confidence building environment and that Bangladesh is linking Anup's deportation to other unresolved bilateral issues.
In India, the extradition of a fugitive from India to a foreign country or vice versa is governed by the provisions of Indian Extradition Act, 1962. The basis of extradition could be a treaty between India and a foreign country. Under Section 3 of this Act, a notification could be issued by the government of India extending the provisions of this Act to the country notified.
Action can be taken under the Indian Extradition Act, Article 34 (b) of 1962. It provides procedure for the arrest and extradition of fugitive criminals under certain conditions, which includes receipt of the request through diplomatic channels ONLY and under the warrant issued by a magistrate having a competent jurisdiction. Action can also be taken under the provisions of Section 41 (1) (g) of the Indian Criminal Procedures Code, 1973 that authorises the police to arrest a fugitive criminal without a warrant. In this case, they have to refer the matter to their Interpol wing for onward transmission to government of India for a decision on extradition.
Extradition plays an important role in the international battle against crime. It owes its existence to the so called principle of Territoriality of Criminal Law, according to which a State will not apply its penal statutes to acts committed outside its own boundaries except where the protection of special national interests is at stake. In view of the solidarity of nations in the repression of criminality, however, a State, though refusing to impose direct penal sanctions to offences committed abroad, is usually willing to cooperate otherwise in bringing the perpetrator to justice lest he goes unpunished. We may wait for good news from India.

The writer is a columnist of The Daily Star.


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