Extradition From Foreign Country.

Yes. By definition, to extradite a person from a foreign country, that country’s courts and authorities must act. In the United States, extradition may be handled through both criminal and civil courts (depending on the circumstances), but extradition from a foreign country is completely different. It is not common for the U.S. to extradite people when no applicable treaty governs the process. However, there are two cases that are exceptions, and extradition does not require foreign approval if: (i) the person has consensualized removal, or (ii) the U.S. government has successfully used a statute to remove a person. The Antiterrorism and Effective Death Penalty Act is one such statute. All other extraditions require a multilateral or bilateral treaty, the terms of which govern all procedural aspects of the request. The applicable treaty determines the request’s documentation, offenses covered, exceptions, and procedural conditions. For example, some countries may not extradite for certain offenses, and some may require that the criminal offenses meet a certain penalty threshold. According to our research, some countries may also choose to extradite someone without an applicable treaty, but this is generally not common. If a treaty does not exist, the U.S. must prove that the request meets other conditions for extradition to proceed. Once the request is initiated, it goes through the foreign country’s courts or an analogous, foreign-designated body. These bodies have the ability to determine whether the request complies with both international and domestic laws. If approved, the court (or designated body) then issues a ruling or order that authorizes the surrender. However, the ruling or order is not the final step in the process; ultimately, the final authority rests with that country’s executive branch or the equivalent authority. As a federal criminal defense law firm, Spodek Law Group coordinates with foreign-based counsel. To do this, we stay informed of current and prospective developments affecting our clients’ interests overseas. Once our firm comes on board, we work closely with counsel, so we can offer our clients advice and representation that is tailored to their unique circumstances. We understand that a timely response is of paramount importance in foreign extradition cases.

What controls bail and detention while I contest extradition overseas?

Extradition proceedings do not come with the ordinary criminal-case presumption favoring release on bail. Whether an individual is detained pending the court’s determination depends on the requested country’s law and practice. With this in mind, if you are facing a potential extradition request, it is imperative that you discuss the possibility of being detained with your legal team. With this in mind, if you or a family member is facing detention during extradition proceedings, it is important to be prepared to present the necessary arguments. Generally, in order to be released, a detained individual will have to demonstrate that (i) he or she does not present a flight risk, (ii) he or she does not present a danger to the community, and (iii) there are “special circumstances” justifying release. Like the first two conditions, “special circumstances” will vary based on the case at hand. Unlike in the U.S. federal system, where there is a statutory list of “special circumstances” for release pre-trial (i.e., 18 U.S.C. § 3142(b)), foreign courts typically assess the validity of special circumstances on an individual basis. For example, serious health deterioration may support a finding that a special circumstance exists, and, in many cases, such a finding can support the decision to grant bail. Similarly, unusually long or complex proceedings may justify granting bail in some cases as well. If you or a family member has any grounds for release, it is critical to present these facts with the appropriate documentation so that the presiding judge or designated body has all relevant information on hand.

How does a U.S. extradition request trigger arrest and a foreign proceeding?

Every extradition request, and the foreign proceeding that follows it, begins with a request sent to the foreign country in which the individual is present. If you are facing a pending extradition request, determining who initiated the request is the first step toward understanding what legal options are available to you. For example, if the U.S. federal government is seeking your extradition, it will initiate the process by submitting a request to the Department of Justice’s (DOJ) Office of International Affairs (OIA). Within the U.S. federal system, the OIA serves as a central point of contact for all foreign requests. For formal requests, the OIA review process is a requirement that applies to state and federal requests alike. Additionally, for requests seeking extradition for state-level criminal charges, the OIA may review the request before transmitting it to the U.S. Department of State for final approval and transmission. As we have noted, there are two types of extradition requests: provisional arrests and formal requests. In both cases, if the U.S. believes that a person’s presence in a foreign country is a result of an attempt to evade the legal process, it will seek to have the individual arrested as soon as possible. This is why provisional arrests are more common than formal requests. Regardless of the type of request involved, the U.S. government will transmit the request (along with any supporting documentation) through official diplomatic channels. This typically includes sending the request through the U.S. Embassy in the foreign country. Once the request is transmitted, it will be reviewed by the foreign country’s government (via its Ministry of Justice, Ministry of Foreign Affairs, or equivalent administrative body). Relevant information is then forwarded to law enforcement agencies to execute the request and bring the individual into custody.

Which treaty rules can block certification in the foreign court?

While there are various provisions and exceptions that can prevent certification, the key provisions in extradition treaties generally focus on these topics: - Extradition of Citizens. Treaty provisions differ on whether the U.S. and the treaty’s other party must extradite their own citizens. In the United States, Section 3196 of Title 18 of the United States Code permits the Secretary of State to order the surrender of a U.S. citizen when the applicable treaty or convention does not obligate the United States to extradite its citizens, provided the other requirements of that treaty or convention are met. Section 3196 applies in cases where the treaty does not obligate the U.S. to extradite U.S. citizens. - Judicial Certification. As noted, during a formal extradition proceeding, the presiding judge will generally examine the U.S. request and supporting evidence to determine whether the individual meets the criteria for extradition. The applicable treaty and the requested country’s law determine the criteria for extradition; they may include identity, treaty coverage, and probable cause. While identity and treaty coverage are relatively straightforward, issues involving probable cause can get complex. When determining if probable cause exists to certify a request, the judge will need to see that there is a likelihood that the person named in the extradition request is guilty of the alleged offenses. Notably, the standard of probable cause is far more relaxed than the beyond-reasonable-doubt standard that applies in U.S. criminal trials; thus, a judge may certify a person’s surrender even when the evidence does not clearly support a criminal conviction. As a result, when arguing against extradition, it is critical to focus the defense on whether the probable cause standard has been met (or failed to be met), as opposed to attempting to persuade the judge on whether the individual is actually guilty of the crimes. - Dual Criminality. If the treaty requires dual criminality, the presiding judge or designated body will need to certify that the alleged offense is one which, if committed in the treaty’s other contracting party, would also be considered a crime. This is often one of the more complex areas of extradition law, as it involves analyzing the laws of both the United States and the foreign country where the individual is present. When dual criminality is at issue, a potential issue can also be whether the foreign country’s legal system has an exception for the individual’s conduct.

After approval, who controls surrender and what can I challenge?

Once a surrender has been approved by the foreign court or other designated body, the United States generally makes the arrangements for transporting the individual back to the U.S. If a person has been released by foreign authorities prior to or during the proceedings, once surrender has been approved, that person goes into the custody of either U.S. agents or the foreign country’s designated law enforcement officers pending their transportation to the United States. Along with the custody and surrender process, the treaty rules also determine protections such as the “rule of specialty.” In general, the rule of specialty limits the scope of criminal prosecution after a person’s surrender to those offenses that supported the extradition request. If the United States seeks to prosecute a person on unrelated criminal offenses that did not support his or her surrender, the treaty that governs the process will likely require the government to comply with certain consent procedures. If the U.S. does not follow these procedures, then the individual may have grounds to challenge a subsequent prosecution. However, because the applicability of specialty protections varies, when facing a potential extradition request it is critical to evaluate all factors, and to develop a comprehensive defense strategy based on the specific treaty involved. Along with judicial approval or other certifications from the relevant designated body, approval of surrender remains within the foreign country’s executive branch (i.e., its Secretary of State or the equivalent administrative official). While judicial approval is typically the most difficult step, the executive’s decision represents the final step in the surrender process. Importantly, if a foreign country’s judge or other designated body certifies a surrender request, the foreign government’s executive branch is not required to approve the request, though certification serves as a legal green light for the foreign country’s authorities to approve the surrender if they choose. In cases where the foreign country’s government refuses to surrender an individual to the United States following judicial certification, this is generally reported to be for political reasons or human rights concerns.

Speak With a Federal Defense Lawyer

If you are dealing with any part of what this article describes, the next step is a conversation with a lawyer who handles these cases. Spodek Law Group is a second generation criminal defense firm practicing since 1976, representing clients nationwide from offices in New York, Brooklyn, Queens and Los Angeles. Call 888 348 8028 to speak with our team.