Extradition

Extradition is the process by which a criminal suspect held by one government is handed over to another government for trial, or if the suspect has already been tried and found guilty, to serve his or her sentence.

Extradition is usually covered by a bilateral treaty which spells out the terms of an extradition, including the crimes for which people will be extradited. It is usually reciprocal in terms of conditions, but there are exceptions.

General considerations are that

• The crime must be serious.
• The event in question must qualify as a crime in both countries.
• The extradited person must reasonably expect a fair trial in the recipient country.
• The likely penalty must be proportionate in both countries.

With respect to this last point, many countries such as Mexico and most European countries will only allow extradition to the US, or other countries with a death penalty, if the receiving country agrees that the death penalty will not be applied to this person. This is controversial in the United States, where it is seen by many as an attempt by other countries to dictate U.S. criminal procedures and penalties. However, such restrictions are normally clearly spelled out in the extradition treaties that the United States government agreed upon.

In some countries such as France, law bars the government from extraditing citizens of the country. Although such restrictions are normally clearly spelled out in the extradition treaties, they may be controversial in other countries' cases of, say, French citizens committing crimes abroad and then returning to France to avoid prosecution or extradition. However, French law allows for trying its own citizens in France for crimes committed abroad.

The federal structure of some countries, such as the United States, may pose particular problems with respect to extraditions. Foreign countries do not have official relations with sub-national units such as the individual states composing the US; they have relations with the federal government. The federal government may, for instance, certify to a foreign country that the death penalty will not be sought, and if it is pronounced, then it will not be applied; but some contend that such a commitment is not binding on state courts when the matter is of state jurisdiction. On the other hand, should the individual state decide to execute the person, the federal government would be in violation of its commitment with respect to foreign countries and what it agreed upon by treaty.

Less important problems may arise due to differing qualifications for crimes. For instance, in the United States, transportation across state lines is a prerequisite for certain federal crimes; this transportation clause is, understandably, absent from the laws of many countries. Extradition treaties or subsequent diplomatic correspondence often include language excluding that such criteria should be taken into account when checking if the offense is an offense in the country from where extradition should take place.