Extradition regime under The United Nations Convention against Corruption (UNCAC)
Globalization is easing border restrictions and increasing travel opportunities. Perpetrators use globalization to avoid prosecution and justice. This problem can be solved by creating international cooperation between countries' criminal justice systems. Among others, Extradition has been used in handling transnational criminal matters. Extradition denotes the process of request made by a state to transfer a fugitive from another for purpose of prosecution.
The United Nations Convention against Corruption (UNCAC) provides extradition as one of the devices to be used in the fight against corruption.
- Fundamental Provision of Extradition under UNCAC
Extradition requests are generally determined by domestic laws and extradition agreements concluded by states. Among others, they need to satisfy the minimum penalty requirements for extradition and should fall outside the grounds of refusal for extradition.
The UNCAC provides different grounds of extradition; for countries that have extradition agreements, offences specified under the convention are presumed to be incorporated in the existing agreements. Besides this, it also obliges countries to include these offences in future extradition agreements.
Countries that require extradition agreements and fail to extradite in the absence of treaty, UNCAC proposes a way out. In such situations it recommends countries to use the Convention as legal basis of extradition for offences under its jurisdiction. For countries that do not prerequisite extradition agreement, UNCAC suggests to acknowledge the offences indicated under the convention as extraditable.
Whether countries depend on extradition agreements or not, they are required to make sure the fugitive under their control is getting fair treatment. This includes the duty to assure the fugitive has the freedom to exercise and benefit from the rights as stipulated under the domestic legislations. The duty also extends to expediting the procedures of extradition and simplifying evidentiary requirements.
Although UNCAC promotes extradition, it does not answer all the difficulties of extradition. Hence, it encourages countries to create agreements that facilitate extradition.
- Dual Criminality and Extradition
Ordinarily, extradition takes place if the offence in question is a crime in both the requesting and requested states. However, this can be a barrier for extradition.
The UNCAC takes a flexible position and encourage states to extradite even in the absence of dual criminality. It urges states to extradite in cases where dual criminality is satisfied as well as when the state has domestic legislation which allows extradition irrespective of the requirement.
- Extradition of Nationals
Almost all countries refuse to extradite their nationals and this creates a problem in extradition. The UNCAC tries to avoid safe havens on the ground of nationality and obliges states to prosecute or extradite their nationals.It urges state to submit the case to its competent authorities for prosecution, if it has refused extradition based on nationality. In such instances, the state is also required to ascertain that the case is treated with the same gravity like other serous domestic offences and to work in collaboration with the requesting state in procedural and evidentiary matters.
Another option of the state is to extradite the person on condition that he will return to his or her country for the execution of the sentence or else to execute the foreign sentence domestically if allowed by its legislation.
- Grounds for Refusing Extradition
Though the Convention promotes extradition, it does not permit every extradition request. Rather, it provides grounds on which extradition can be refused, in cases where prosecution can be used as a weapon to punish individuals on the ground of sex, race, religion, nationality, ethnicity or political view, countries are allowed to reject extradition.
Nevertheless, before rejecting the country should consult with the state which requested extradition and permit it to present its opinion and provide information regarding the allegation.
However, a state should not refuse extradition for offenses covered under the convention considering it as political offence nor on the sole ground of considering it as fiscal matter.
In the struggle to avoid safe havens for perpetrators, UNCAC provides extradition as a device to be used in the fight against corruption. It also tries to minimize the difficulties faced by countries in the process of extradition.
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