RESOURCE MATERIAL SERIES No. 57

TOPIC 2REFUSAL OF MUTUAL LEGAL ASSISTANCE OR
EXTRADITION
Chairperson:
Co-chairperson:
Rapporteur:
Co-Rapporteur:
Members:
Advisers:

Ms Luz del Carmen Ibanez Carranza
Mr. Shyam Sundar Prasad Yadav
Mr. Asan Kasingye
Mr. Chun Taek Lim
Mr. Yasuhiro Sanada
Mr. Masaaki YoshiuraProf. Shoji Imafuku
Prof. Keiichi Aizawa
Prof. Hiroshi Tsutomi

I. INTRODUCTION
This group looked at the refusal ofmutual legal assistance or extradition
based upon the following grounds:a) The principle of non-extradition forpolitical crimes.
b) The principle of non-extradition ofnationals.
c) Existence of the death penalty in therequesting state.
d) Insufficiency of case that is the basis
for the request for mutual legal
assistance or extradition.
Transnational crime is a global problem.
Countries all over the world are concerned
about the increase in the level andsophistication of transnational crime. To
facilitate international concerted efforts tocombat this problem, Mutual Legal
Assistance and Extradition procedures
have been emphasized.
According to the U.N. Model Treaty on
Extradition and Mutual Legal Assistancein criminal matters Article 1, stipulates in
specific terms the obligation to extradite.
“Each party agrees to extradite to the other,
upon request and subject to the provisionsof the present treaty, any person who is

188(Peru)(India)(Uganda)(Korea)(Japan)(Japan)(UNAFEI)(UNAFEI)(UNAFEI)

wanted in the requesting state forprosecution for an extraditable offense or
for the imposition or enforcement of asentence in respect of such an offense.”
Therefore, the basis and focus of treaties
on Mutual Legal Assistance andExtradition is the surrender of the persons
to another state and not geared to creating
impediments for the surrender of such
persons.
However, in practice extradition ormutual legal assistance maybe refused by
the requested state. The following aresome of the grounds upon which extraditionor mutual legal assistance maybe refused.
a) The principle of non-extradition forpolitical crimes.
b) The principle of non-extradition ofnationals.
c) Existence of the death penalty in therequesting state.
d) Insufficiency of cases that is the basis
for the request for mutual legal
assistance or extradition.
The rationale for refusal on the above
grounds varies from State to State.
However, reasons include; mistrust amongstates and the lack of confidence in one

114TH INTERNATIONAL TRAINING COURSEREPORTS OF THE SEMINAR
another ’s justice system. Others are;political considerations, protection ofhuman rights, sovereignty, tradition,
notions of fundamental justice and fairness
embodied in domestic legal system, anddiscrepancies between legal systems.

II. REFUSAL OF EXTRADITIONBASED UPON NON-EXTRADITION
FOR POLITICAL CRIMES
Among the mandatory grounds forrefusal of extradition in many states is the
exception of non-extradition for politicaloffenses. If the offense for which
extradition is requested is regarded by therequested state as an offense of a politicalnature, then extradition is denied. This
principle became prominent after the
French Revolution. There was great
resistance to oppression and tyranny thus
embracing the fundamental rights andfreedoms of citizens. The principle has
been reinforced since the last century withthe growing concern and expansion of thehuman rights concept. This exception also
has been used extensively to cover
freedoms of political and religious opinions
and the expression of these opinions.
The U.N. Model Treaty on extradition
Art. 3 sub-paragraph (a), stipulates thatextradition shall not be granted “if theoffence for which extradition is requested
is regarded by the requested State as an
offence of a political nature.” This principle
has been incorporated in most of thebilateral and multilateral agreements
signed between and among nations all over
the world.
However, the application of this principle
has evolved in the last 30 years as a resultof the changing global political climate aswell as the way the political offences are
now perceived by society. Efforts have been
made to suppress the use of violence bydenying perpetrators the privilege ofpolitical cover to escape justice.
The implicit and explicit definition ofwhat constitutes a political offense iscomplex and no consensus has beenreached about its definition. In practice,offenses of a political nature have enlisted
a broad range of definitions. These varyfrom the motive of the offense, effect of theoffence, purpose of the offence, identity ofthe victim, democracy, human rights andthe immediate circumstances of politicalconflicts in different countries. Throughthe use of a so called negative definition,
the scope of political offences has beendelineated by specifying conduct, or
behavior that is not considered as
constituting a political offence.
Various international conventions havebeen elaborated and signed to specify actsthat shall not be regarded as offenses of apolitical character. These include:i) 1963 - Convention on Offences andCertain Other Acts Committed on
Board Aircraft (Tokyo Convention).
ii) 1970 - Convention for the Suppressionof Unlawful Seizure of Aircraft (Hague
Convention).
iii) 1971 - Convention for the Suppressionof Unlawful Acts Against Safety of
Civil Aviation (Montreal Convention).
iv) 1973 - Convention on the Prevention
and Punishment of Crimes Against
Internationally Protected Persons.
v) 1979 - Convention on the PhysicalProtection of Nuclear Material.
vi) 1979 - International Convention
Against the Taking of Hostages.
vii) 1988 - Protocol for the Suppression of
Unlawful Acts of Violence at Airports
Serving International Civil Aviation(Extends and supplements theMontreal Convention on Air Safety).
viii) 1988 - Convention for the Suppressionof Unlawful Acts Against Safety of
Maritime Navigation.
ix) 1988 - Protocol for the Suppression of189

RESOURCE MATERIAL SERIES No. 57
Unlawful Acts Against the Safely of
Fixed Platforms Located on theContinental Shelf.
x) 1991 - Convention on the Marking of
Plastic Explosives for the Purpose of
Detection.
xi) 1997 - International Convention for
the Suppression of Terrorist Bombings.
xii) 1999 - Convention for the Suppressionof Terrorist Financing.
Therefore, some countries acting on thebasis of the above conventions, have
explicitly stated in their treaties what does
not constitute a political offense.
In Thailand, “a murder or willful crime
against the life of a head of state or one of
the connecting parties of a member of that
person’s family, including attempts tocommit such an offense” is excluded fromthe scope of political offense.
In Malaysia, Article 3(2) of theExtradition Treaty Act, 1972, stipulates
that “the taking or attempted taking of thelife of a Head of State or a member of his
family shall not be deemed to be a politicalcrime for the purpose of this treaty.”
The European Union Convention on
Simplified Extradition, adopted in 1995
and ratified to date by the six (6) Member
States, states as a general rule that thepolitical offense exception shall not apply
between the Member States. There maybe
some reservations with respect to offenses
which are covered by the Council ofEuropean Convention on the Suppressionof Terrorism from 1977. These include not
only offenses defined in a number of U.N.
Conventions (on high-jacking), the safetyof civil aviation and the taking of hostages
mentioned above, but more generally
serious offenses of violence affecting thelife, physical integrity or health of persons.

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III. THE PRINCIPLE OF NONEXTRADITION OF NATIONALSThe United Nations Model Treaty on
Extradition, Article 4 (a), enables arequested state to refuse extradition of its
nationals, but includes “prosecution in lieu”
alternatives. This is an optional ground.
However, the international treaty practiceis that nationality of the requested person
is a ground for optional refusal in sometreaties but mandatory in others.
There is a firmly held belief that many
countries do not want to extradite theirnationals. This has been deeply entrenchedin their constitutions. 1 Previously, thispractice was mainly held by civil law
countries. On the contrary, common law
countries, such as the United States ofAmerica, do not have such a policy. Such
opposing policies are said to derive fromthe different policies regarding how toestablish criminal jurisdictions in criminalcases. The civil law countries tend toestablish jurisdiction over both crimes
committed in their territories and crimes
committed by their nationals abroad whilecommon law countries tend to establish
only territorial jurisdiction. Therefore,
since it is generally possible for civil law
countries to try their own nationals who
commit crimes on a foreign soil, they havea policy to decline such requests, and viceversa. It is also understood that the groundof the restriction stems from distrust in
foreign criminal justice systems and theprotection of its own nationals.
However, in practice, there is no sharp
distinction between the two legal systems.
Some common law countries especially in
1

For an in-depth analysis of the problem of nonextradition of nationals, see Michael Plachta,(Non-) Extradition of Nationals: A Neverending
Story?, 13 Emory International Law Review 77159 (1999).

114TH INTERNATIONAL TRAINING COURSEREPORTS OF THE SEMINAR
the European Union, can extradite theirnationals only to requesting countries
within the Union, while Scandinavian
countries which are civil law countries also
extradite their own nationals among
themselves.
The exception of non-extradition for
nationals jeopardises international efforts
to fight transnational organized crime.
H o w e v e r, s e v e r a l m u l t i - n a t i o n a lconventions, such as the U.N. Vienna
Convention against Illicit Traffic in
Narcotic Drugs and Psychotropic
Substances, 1988 and the Hague
Convention for the Suppression of
Unlawful Seizure of Aircraft, obligate
member states to establish jurisdiction
over cases when they do not extradite afugitive who is alleged to have committeda crime defined in the conventions. In theEuropean Union for example, the political
will of the Member States is to make no
distinctions, within the Union, andbetween citizens of the Union. This is agreat stride towards erasing such an
exception from their extradition laws andtreaties. However, it is important to notethe following.
(i) States should take giant strides
towards enacting laws that allow theirnationals to be extradited. Germany
for example, has submitted a bill to theparliament seeking to amend article 16of its constitution by allowing
extradition of its nationals to othermember States in the European Unionand international criminal tribunals.
(ii) States can extradite their own
nationals for trial abroad on condition
that convicted fugitive offenders willserve their sentences in their respective
countries.
(iii)Extradition of a national can be allowedwith the consent of the offender.
(iv) S u r r e n d e r o f n a t i o n a l s c a n b e
considered as a new form of bringing

fugitives to face justice. This has
enabled many offenders who committed
crimes in Yugoslavia and Rwanda to betried before the Ad Hoc International
Criminal Court for the former
Yu g o s l a v i a a n d t h e A d H o cInternational Criminal Court for
Rwanda, respectively. However, somecountries still refuse to surrender theirnationals to international tribunals
because they consider surrender asamounting to extradition.
v) The principle of aut dedere aut judicare(extradite or prosecute) should be
implemented to bring fugitive offenders
to justice. If the possibility of an
offender’s impunity is recognised as themost serious danger caused by thepractice of non-extradition of nationals,
then from the point of criminal justice
it should not matter in the territory ofwhich State he/she is prosecuted andpunished as long as justice is done.
However, this principle should beapplied to serious international crimes that
affect human society generally. The
principle should not be used as a last resort
when extradition is based on the groundsof nationality of the fugitive offender.
Participants found it desirable tosupplement the system based on theprinciple aut dedere aut judicare by theprotection against double jeopardy (nebris
in iden) to avoid the prosecution andconviction of the sentenced person in therequesting country, based on the same factsof the offence.

IV. EXISTENCE OF THE DEATH
PENALTY IN THE REQUESTING
STATE
Article 4 sub- paragraph (d) of the UN
Model Treaty, provides an optional groundfor refusing extradition. This arises when
the offense for which extradition is being

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RESOURCE MATERIAL SERIES No. 57
sought carries the death penalty, unless therequesting state undertakes not to impose
the death penalty or not to carry it out if it
is imposed.
While some countries have capital
punishment, other countries haveabolished capital punishment. It cangenerally be observed that the lattercountries tend to refuse extradition of
fugitive offenders to the former based on
the ground that capital punishment may
possibly be imposed. In reality, theexception becomes a mandatory one as
most countries in Western Europe forexample refuse to surrender a fugitive if
he/she faces the risk of being sentenced todeath. Some examples of this exception
include:i)

In the recent past, Uganda made arequest to the United Kingdom throughthe diplomatic channel for the
extradition of two persons involved ina murder case. They faced the death
penalty in Uganda if convicted. The
request was not granted on the grounds
that the United Kingdom had abolishedthe death penalty. The two fugitives arestill believed to be at large in the United
Kingdom.

ii) In a recent case where an Iranian
fugitive was sought by both Japan and
Iran from the Netherlands the latter’s
government granted extradition to
Japan, because the offender faced adeath penalty in his mother country
while Japan gave an assurance that theprosecutor would not seek a death
penalty and therefore it would not be
imposed.
Therefore, many countries are amending
their domestic laws to accommodate therequirement that in cases where capital
punishment is likely to be imposed, therequesting state will not carry it out. One

192

of such countries is India. In 1993, India
amended its extradition law providing thatin extradition cases, the original death
sentence in the requesting State will be
substituted with life imprisonment or alesser sentence.
In the recent past, there is a call for theabolition of capital punishment especiallyemanating from human rights advocates.
However, the death penalty exception to
extradition is opposed by countries thatstill retain capital punishment in theirlegal systems. The arguments forwarded
by those countries have been as follows;i)

Insisting on the death penalty
exception hampers the smooth flow of
extradition between states thereby
diminishing the spirit of international
cooperation to suppress crime.
ii) It interferes with the judicial discretionof the requesting state thereby
encroaching upon the sovereignty of
another state.
iii) Diplomatic treaties and the judicial
system are two different andindependent institutions. Whereas therequesting state may assure therequested state that capital
punishment will not be imposed, thecourt may go ahead and impose it
thereby straining the relationship andcooperation of the two countries.
However, these countries should,
Provide an adequate assurance that thedeath penalty, if imposed, would not be
carried out.
ii) Involve making use of the executive
authority to commute the sentence bytaking advantage of the prerogative ofmercy or pardon available in their legal
system.
iii) A m e n d t h e i r d o m e s t i c l a w s t oaccommodate the requirement of not
imposing capital punishment in
extradition matters. Such statesi)114TH INTERNATIONAL TRAINING COURSEREPORTS OF THE SEMINAR
should adopt a provision that stipulates
the surrender of an accused from therequested country. A trial court isbound by the conditions laid down by
the requested state and agreed upon by
the executive of the requesting state.
iv) Apply the principle of aut dedere aut
judicare in cases where extradition iscompletely denied as a result of refusal
to assure the requested state by therequesting state that capital
punishment would not be imposed.

However, extradition procedures aredifferent in different countries, therefore,
it is difficult to determine how muchevidence would be required in order togrant an extradition request. The U.N.
Model Treaty does not specifically define
how much evidence is required and whoshould decide on such an issue. Therefore,
there is no universal standard on theamount of evidence required to grant an
extradition request. Different countries set
different standards.

V. INSUFFICIENCY OF EVIDENCE
THAT IS THE BASIS FOR THE
REQUEST FOR MUTUAL LEGALASSISTANCE OR EXTRADITION

It may be far fetched to envisage asituation where no evidence would be
required to grant an extradition request bya requested State. Practical experience has
tended to show that even countries that do
not require any amount of evidence to grantan extradition request are reluctant togrant it. This may arise when during theprocess of extradition, an offender claims
that he/she is being persecuted as there isno evidence to show that he/she committed
the offence. This may result in an acquittalof the offender. It is therefore advisable thatcountries should keep track of the standardof evidence that is required by different
countries. This helps in establishing thestandard of evidence when making
requests.

Article 3, of the U.N. Model Treaty,
stipulates mandatory grounds for refusalof an extradition request. However,countries are free to add to this article thefollowing further mandatory ground forrefusal “ if there is insufficient proof,
according to the evidential standards of therequested State, the person whose
extradition is requested is a party to theoffence.” Inherently, this means that arequested country can refuse an extradition
request on the ground that the evidence
accompanying the request is insufficient.
In the past, common law countries
required that extradition requests sent tothem showed proof of apparent guilt while
civil law countries only required aminimum amount of evidence. However,in contemporary extradition practices,
there are no sharp distinctions between the
two legal systems. The prima facie caserequirement, developed by England andadopted by several common law countries
is an old and outdated concept. Even
England has partly abolished thisrequirement in extradition matters. Focus
now is becoming increasingly placed on theamount of evidence required to grant an
extradition request.

If the request concerns a fugitive that issought for trial, it should only be requiredthat evidence be adduced that he/she
committed the offence. In order for thisevidence to be taken as satisfactory, it has
to be consistent with the extradition
request. However, it is very difficult for arequesting country to provide all therequired evidence in the early stages of theproceedings. This renders extradition ormutual legal assistance even more difficult
to be obtained. Several countries have
moved away from insisting on being
furnished with all the evidence in order togrant an extradition request. This hashelped to expedite extradition requests.

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RESOURCE MATERIAL SERIES No. 57
The following are some of the goodpractices.
i)

The United Kingdom abolished theprima facie case requirement in 1989
in relation to non-commonwealthcountries only.
ii) Australia has tried to make their
extradition laws analogous to those of
the civil law countries.
iii) In 1990, the Commonwealth scheme for
the Rendition of Fugitive Offenders wasamended to permit the Commonwealthcountries to opt to abrogate the prima
facie case requirements.
iv) The United States of America insists
on evidence though not the wholeevidence. The requirement is what is
considered sufficient to warrant
extradition but not establishing theapparent guilt of the offender.
v) Pakistan has liberal provisions forreceiving evidence against a fugitive
offender because it admits
authenticated official certificates offacts and judicial documents stating thefacts against fugitive offenders as
evidence. Similarly, in magisterial
inquiry in Pakistan, the warrants,
depositions of Statements on oath
which purport to have been issued,received or taken by any court of justiceoutside Pakistan of copies there of or
certificates or judicial documents
stating the fact of conviction before any
such court are also admitted.
The above examples show thatextradition jurisprudence requires justenough evidence to issue an arrest warrant
and not to establish the totality of theevidence.
As far as mutual legal assistance isconcerned, theoretically, there should be norequirement imposed on the requesting
country to provide evidence at its request.
It could be said that the opposite rule194

should apply to this form of international
cooperation to that applicable toextradition. However, in practice, evidence
may be required in certain requests suchas seizure of assets, searches, andobtaining copies of bank records, which are
secret. Various countries require someevidence before mutual legal assistance canbe granted. The U.S.A. for example, in thebilateral treaties it has signed withdifferent countries, requires that evidence
be adduced if mutual legal assistance is tobe granted in specific cases such as
obtaining bank records in money
laundering cases.
VI. RECOMMENDATIONSi)

States should take giant strides
towards enacting laws that allow theirnationals to be extradited.
ii) States can extradite their own
nationals for trial abroad on condition
that convicted fugitive offenders willserve their sentences in theirrespective countries.
iii) Extradition of a national can beallowed with the consent of theoffender.
iv) S u r r e n d e r o f n a t i o n a l s c a n b e
considered as a new form of bringing
fugitives to face justice.
v) The principle of aut dedere aut judicare(extradite or prosecute) should beapplied and implemented in cases
where extradition is denied on two
grounds: nationality of an accused andthe death penalty.
vi) It is advisable that countries should
keep track of the standard of evidence
that is required by different countries.
This helps in establishing the standardof evidence required by various
countries when making requests.
vii) As far as mutual legal assistance isconcerned, theoretically, there should
be no requirement imposed on therequesting country to provide evidence

114TH INTERNATIONAL TRAINING COURSEREPORTS OF THE SEMINAR
in its request. It could be said that the
opposite rule should apply to this formof international cooperation to thatapplicable to extradition. However, inpractice, evidence may be required incertain requests such as seizure ofassets, searches, and obtaining copies
of bank records.
viii) States that still retain the death
penalty should take advantage of theprerogative of mercy or pardon
available in their legal systems tocommute the death sentence to life
imprisonment or a lesser sentence.
ix) In Japan, the political offence
exception is defined in terms of pureand relative terms. Pure politicaloffence is whereby the political motiveof the offender overrides the intention
to commit an offence and vice versa.
In future the feasibility of thisdefinition may be considered by othercountries to determine possible
extradition of fugitive offenders.

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