Defenses for Defeating Extradition

Defeating Extradition: Legal Defenses and Strategies

Extradition is the process of transferring an accused or convicted individual from one jurisdiction to another. For example, if someone commits a crime in State A, but flees to State B, State A can request that State B extradite the person back to face charges.

Defeating extradition is tricky business. The courts generally favor extradition between states and countries. But with the right defense strategy, it is possible to avoid being extradited in some cases. This article will break down the common defenses and strategies used for fighting extradition.

Challenging the Extradition Request

The first step is looking closely at the extradition request itself. Does it comply with all the technical legal requirements?

• For interstate extradition, the request must meet the standards of the Uniform Criminal Extradition Act. This includes providing proper identification documents, charging documents, and an arrest warrant. Any technical errors can potentially defeat extradition.
• For international extradition, the request must meet the terms of the extradition treaty between the countries. Common requirements are dual criminality (the offense is a crime in both countries), specialty (person can only be tried for crimes named in request), and non bis in idem (double jeopardy).

If the request fails to dot the i’s and cross the t’s, the defense can challenge it as improper or invalid. For example, if the charges or arrest warrant contain factual errors about the identity or offenses, that could defeat extradition.

Contesting Identity

A common extradition defense is contesting identity. The prosecution must prove the person arrested is the actual person wanted. This is done by submitting identifying documents like photographs, fingerprints, descriptions etc.

If the defense can show the identifying documents don’t match the person being extradited, it defeats the case. Misidentification happens more often than you’d think – especially when translators convert names between different alphabets.

Dual Criminality

For international extradition, dual criminality is a key requirement. This means the alleged crime must be an offense in both the requesting country and the country holding the person.

For example, if the charge is criminal defamation, but defamation is not a crime in the holding country, dual criminality fails. This principle bars extradition for political offenses and other acts not recognized as criminal in both places.

Specialty

The specialty doctrine limits prosecution to the specific offenses listed in the extradition request. After extradition occurs, the requesting country can’t charge the person with any other crimes without permission.

If the requesting country violates this, the defendant can challenge the charges as outside the scope of the extradition. For example, if extradited on tax charges, the defendant can’t then be charged with unrelated drug crimes.

Human Rights Violations

In extreme cases, human rights violations in the requesting country may bar extradition. If the defendant can show they will likely face torture, abuse, or denial of due process if extradited, some courts have refused extradition on humanitarian grounds.

However, this is a high bar to meet. Most countries have a presumption that fellow nations will treat prisoners humanely. Still, documented human rights abuses can sometimes halt an extradition request when the circumstances are egregious.

Statute of Limitations

Most countries will not extradite someone to face charges that are already time-barred in the requesting nation. If the statute of limitations has already expired for the alleged crimes, the defense can argue extradition should be denied.

This forces the requesting country to demonstrate they have extended or tolled the limitations period under specific exceptions in their laws. If not, extradition will be denied as “unjust or oppressive” for stale charges.

Asylum and Immigration Status

Persons who have already obtained asylum or legal immigration status in the holding country have stronger grounds to defeat extradition. Their extradition could violate the protections granted by that status.

However, immigration status does not provide absolute protection. The courts must balance the equities between the nations involved on a case-by-case basis. But asylum or permanent residence strengthens the defense position considerably versus a mere visitor visa.

Diplomatic Assurances

When human rights abuses are alleged, the requesting country may offer “diplomatic assurances” that the defendant will be treated humanely. This can overcome barriers to extradition, provided the assurances are formal, binding, and specific.

However, many view diplomatic assurances as an empty gesture, not worth the paper they’re written on. The defense may argue such promises provide no real protection once the person is extradited. Some courts have agreed, rejecting mere assurances absent enforcement mechanisms.

Executive Discretion

Even if the courts approve an extradition request, the executive branch often has final discretion to refuse extradition as a matter of policy. In the U.S., the Secretary of State makes the call. The defense can lobby the executive to deny extradition, even if legally permitted.

This is based on factors like foreign policy, reciprocity, urgency, and humanitarian concerns. It provides a last chance to halt an extradition approved through the courts. However, executive discretion is exercised sparingly in most countries.

Provisional Arrest

Many extraditions start with a provisional arrest while the formal extradition request is still being prepared. But this isn’t supposed to be indefinite detention. Most treaties limit provisional arrest to 30-90 days.

If the full extradition case isn’t initiated within that window, the defendant must be released. The defense can watch the clock and seek release if the deadline expires before the formal extradition request is received and filed.

Conclusion

While the deck is stacked in favor of extradition, defenses do exist. In some cases, technical defects, mistaken identity, due process concerns, or executive discretion may halt an extradition proceeding. Those facing extradition should raise every defense possible. With an experienced attorney, it’s possible to defeat extradition under the right circumstances.

The keys are thoroughly analyzing the request, identifying any flaws or bars to extradition, documenting conditions in the requesting country, and aggressively asserting all legal and humanitarian defenses. Extradition can be successfully opposed, despite the challenges. But it takes comprehensive advance planning and litigation to win these uphill battles.