Workshop on strengthening international legal cooperation among OSCE Member States to combat transnational organized crime (Vienna, 7-9 April 2008) United Nations tools and best practices in extradition

Model Treaty on Extradition - Legislative background Adopted on the recommendation of the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders (Havana, Cuba, 1990). General Assembly resolution 45/116 of 14 December 1990

Model Treaty on Extradition - Legislative background Revisions and complementary provisions to keep up with new developments and reflect the most recent trends in the area of international cooperation in criminal matters. General Assembly resolution 52/88 of 12 December 1997

An effective tool for technical assistance Model Treaty on Extradition: A useful guide to assist Member States in negotiating extradition treaties. Accompanied by a Manual with commentaries and guidance on the implementation of extradition treaties. Also supplemented by a Model Law on Extradition (2004), used as a guidance for the elaboration of domestic extradition legislation.

An effective tool for technical assistance Both the Model Treaty and the Model Law conducive to promotion of international cooperation. Broad use in technical assistance programmes and activities of UNODC. Necessary supplement of training material to promote adherence to U.N. instruments against drugs, transnational organized crime, corruption and terrorism.

An overview of the basic provisions Offences punishable under the laws of both Parties by imprisonment for a maximum period of at least [one/two] years or by a more severe penalty. Extradition for enforcement of sentence: at least [four/six] months to be served in the requesting State. Determination of double criminality: different categorizations or names of offences shall not matter (see also art. 43, para. 2 of the U.N. Convention against Corruption). Extraditable offences-Double criminality requirement (article 2)

An overview of the basic provisions Extradition for fiscal offences may not be refused (see relevant provisions of the U.N. Conventions against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Transnational Organized Crime and Corruption). Accessory extradition: extradition possible for offences not carrying the minimum penalty if request is granted for at least one extraditable offence. Extraditable offences-Double criminality requirement (article 2)

An overview of the basic provisions Political offence exception, but non-application for offences for which: States assumed obligation to prosecute in lieu of extradition;or There was agreement not to consider them as political. Discrimination clause. Military offences. Non bis in idem/Double jeopardy. Lapse of time or other immunity from prosecution. Mandatory grounds for refusal (article 3)

An overview of the basic provisions Torture or other cruel, inhuman or degrading treatment or punishment in the requesting State. Judgement rendered in absentia. Mandatory grounds for refusal (article 3)

An overview of the basic provisions Nationality of the person sought, but obligation to prosecute when refusing to surrender. Other alternatives possible, such as temporary surrender for trial only. Offence within jurisdiction of requested State: decision to refrain from prosecution or terminate domestic proceedings. Pending prosecution in the requested State for the offence for which extradition is requested. Death penalty. Extraterritoriality: exercise of jurisdiction by requesting State viewed as overly broad. Optional grounds for refusal (article 4)

An overview of the basic provisions Commission of the offence, in whole or in part, in the requested State. Extraordinary or ad hoc tribunals to try or sentence the person sought in the requesting State. Humanitarian considerations (age, health or other personal circumstances). Optional grounds for refusal (article 4)

An overview of the basic provisions Diplomatic channels or directly between ministries of justice or other authorities designated for that purpose. Content of the request In all cases: Information to identify the person sought. Text of relevant laws establishing the offence-statement of penalty that can be imposed. Channels of communication and required documents (article 5)

An overview of the basic provisions Extradition for purposes of prosecution: (Certified copy of) arrest warrant issued by competent judicial authority. Statement of the offence. Exposition of the facts for which extradition is sought. Content of an extradition request (article 5)

An overview of the basic provisions Extradition for purposes of enforcing a sentence: (Certified copy of) judgement setting out the conviction and the sentence imposed. Where applicable, the exent to which the sentence remains to be served. Statement of the offence. Description of acts or omissions constituting the offence. Content of an extradition request (article 5)

An overview of the basic provisions Additional requirements where the person has been convicted in absentia. Generally, contracting Parties may reduce or expand the model list to meet their specific needs, but important to facilitate international cooperation. Extradition Request Writer Tool under preparation by UNODC. Content of an extradition request (article 5)

An overview of the basic provisions Differences between common law and civil law States as to the documents required to be presented in an extradition case. Supplementary explanatory note in the Model treaty: emphasis on the need to facilitate cooperation. U.N. instruments: States are called to simplify evidentiary requirements. Evidentiary requirements

An overview of the basic provisions Simplified extradition procedure: Waiving extradition requirements if the person sought consents. Waiver of the rule of speciality requirements also possible. U.N. instruments: States are called to expedite extradition proceedings subject to their domestic laws. Simplified extradition procedure (article 6)

An overview of the basic provisions Cases of urgency: application for provisional arrest pending submission of extradition request. Use of ICPO-Interpol channels and/or direct transmission of applications between central authorities. Content of provisional arrest requests, including a statement that extradition is to be requested. Provisional arrest (article 9)

An overview of the basic provisions Implementing legislation should be in place to specify conditions for the issuance of a provisional arrest warrant and other procedural aspects. See section 20 of the Model Law on Extradition. Provisional arrest (article 9)

An overview of the basic provisions Decicion on the extradition request and proceedings leading to the surrender of the person sought and any property found: application of the provisions of the domestic law (See also sections of the Model Law on Extradition). Decision on the request, surrender of the person and property (articles 10-13)

An overview of the basic provisions No criminal proceedings against the person surrendered to the requesting State or re-extradition to a third State for offences committed before surrender other than those for which extradition was granted. Unless: Consent of the requested State. Simplified extradition procedure (discretional). Person not leaving the requesting State after the period specified or returning voluntarily to it. Rule of speciality (article 14)

An overview of the basic provisions Explanatory note accompanying the provision: Recommendation to exclude from the application of the rule extraditable offences provable on the same facts and carrying the same or lesser penalty as the original offence for which extradition was requested. Rule of speciality (article 14)

An overview of the basic provisions Specific provision to enable: Requests for transit permission. Execution of transit requests. Detention of the person in custody while being transferred. Detention of the person in custody in the event of unscheduled landing. Transit (article 15)

An overview of the basic provisions Implementing legislation required to authorize a State to comply with transit obligations (See sections of the Model Law on Extradition) Transit (article 15)

Text of the Model Treaty and the Model Law on Extradition in UNODC website n.pdf

● See them at  Model legislation and guidelines  Directory of Central Authorities for casework (based on 1988 UN Convention)  EWG best practices, forms, checklists in the fields of extradition, MLA, confiscation, certain types of special investigative techniques, witness protection  Current and pending initiatives MLA request drafting software Case evidence development and analysis software Extradition request drafting software UNODC Working Tools

Flexible laws and treaties (1) Enable extradition without a treaty Make an inventory of your extradition laws and treaties Enable temporary and simplified consent surrender Consider adoption of a broad “extradite or prosecute” duty Provide for/simplify judicial review and appeal processes If two or more countries request extradition of a person, determine objectively which request should prevail Recognize /execute foreign arrest warrants, when appropriate (e.g. European Arrest Warrant)

Flexible laws and treaties (2) Simplify double criminality requirement Limit refusal grounds to the essential minimum (restrict political offence exception and other traditional grounds) Reduce/eliminate authentication /certification requirements Permit the presence of foreign officials during proceedings

Effective Extradition Casework Practice Ongoing extradition requests- Planning Find your fugitive Make greater use of Interpol Resort to provisional arrest when needed and in view of submission of extradition request Is there an extradition treaty/arrangement with that country? If “Yes, are the offences extraditable offences?  dual criminality  rule of speciality If “No”  is extradition possible without it, based on other legal bases?

Compiling the request (1) Find out what information you need to include (treaty/law) Consult! - Your own and the foreign Central Authority, your government staff located abroad and the foreign government staff located in your country Gather all evidence / documents supporting the request Include a summary of the facts  describing the evidence in support of your case  covering all relevant acts and omissions of the offence(s)  provide as much evidence as required by requested State

Compiling the request (2) Anticipate and deal with particular issues before they arrive  arrest, search and seizure  custody or bail/conditional release  potential grounds for refusal (death penalty, political offence, discrimination clause, fair trial, asylum cases)  in absentia proceedings  evidentiary requirements Send a draft request to the requested State for feedback Minimize translation problems

Transmitting the request Most still have to be sent via the diplomatic channels Ensure your Foreign Ministry understands the urgency Send it by the fastest possible secure means Use modern technology

Incoming extradition requests First responses Incoming requests may start with  a formal request through the diplomatic channel, with or without prior notice  a provisional arrest request via Interpol If you receive a request without warning, you need to quickly  acknowledge receipt  find the fugitive  check for dual criminality  check documents for treaty/ law compliance  notify any problems encountered

Provisional arrest requests If provisional arrest request before extradition request arrives  beware - it can trigger an extradition request receipt deadline  always consult Central Authority before a provisional arrest

Completing the process (1) Get authorization to proceed to execute the request Ensure timely arrest, and if possible detention in custody Ensure the executing court has all the papers Assist the court - its experience or knowledge may be limited

Advise the requesting State of status and progress After the proceedings  ensure the necessary documentation is completed  ensure all statutory / treaty deadlines are met  plan the transit carefully  keep track of the case until the fugitive is surrendered  coordinate the transfer of the fugitive with the authorities of the requested State Use other judicial cooperation tools if extradition not possible (e.g. mutual legal assistance and transfer of criminal proceedings in case of domestic prosecution) Completing the process (2)

For further information: United Nations Office on Drugs and Crime Division for Treaty Affairs Crime Conventions Section P.O. Box 500 A Vienna, Austria Web: Tel.: Fax: