Extradition Treaties

Background

Extradition is the process by which a person is removed from one state to another in order to face trial or punishment. It generally applies to those who are tried for an offence but may also apply to those convicted, who have escaped custody or who have been convicted in their absence.

The general principle of criminal law is that it applies only to offences committed within the jurisdiction of the state concerned. At common law, there is no power to arrest and send a person to another jurisdiction where he is sought to be questioned,  tried or imprisoned.

Since the 19th-century, states have entered bilateral treaties on extradition and a network of treaties have evolved. Extradition treaties are entered between states for the purpose of extradition of persons who are sought for, or have been convicted of serious offences.

Within the European Union, extradition has been supplanted to a large extent by the European Arrest Warrant.  This arises under an EU initiative that has been implemented in Ireland by the European Arrest Warrant Act.

European Arrest Warrant

The European Arrest Warrant process is significantly different to extradition. It is more automatic in nature. It applies between Ireland and other EU states.

The Lisbon Treaty formalised and restated the existing provisions as to EU competence in relation to cooperation in criminal matters. See the separate chapters in that regard.

The European Arrest Warrant has been accompanied by measures providing for the execution of orders freezing property and evidence, recognising criminal penalties and mutually recognising confiscation orders. The Criminal Justice (Mutual Assistance Act)  Act 2008, the Europol Act, and other legislation give effect to and embody international cooperative measures in Ireland.

A challenge to the European Arrest Warrant was rejected on the basis that it was required by membership with the European Union and accordingly protected by Article 29 of the Constitution.

Other Conventions

The EU Act on Simplified Extradition Procedures 1995 simplified extradition between member states. The EU Convention on Extradition further simplified extradition or removed certain exceptions and restrictions.

The Extradition (European Union Conventions) Act 2001 authorise the adoption of the Convention. It applies to the United States as a designated country.

The International War Crimes Tribunals Act 1998 and the International Criminal Court Act 2006 make specific provision for the extradition of persons accused of war crimes and crimes against humanity.

Implementation of Treaties

The Extradition Act 1965 as amended is used to implement extradition treaties with other states, both bilateral treaties and multilateral treaties at the European level. An order is made applying Part II of legislation to states in accordance with the treaty or agreement so that it effectively becomes part of domestic law.

The European Convention on Extradition is a multilateral treaty on extradition drawn up in 1957, by the member states of the Council of Europe and is in force between them. It provides for a simplified form of extradition between member states.

The Convention is also available for adoption by non-members, which include South Africa and South Korea. There are four protocols to the Convention that vary the conditions signed up to by individual states.

The 1965 Extradition Act authorises the Minister for Foreign Affairs to implement an Extradition Agreement entered by the government with another state party.  Because it may involve a charge on public funds, it may require approval by the Dail, even if effected by way of secondary legislation.

Orders made under the 1965 Act include orders that apply to a number of European and non-European states. Prior to the introduction of the European Arrest Warrant, the Convention governed extradition between member states of the European Union.

The only states for which the Convention is now relevant are those outside the EU.  The principal treaties and orders under the Act relate to the United States, Australia and Hong Kong.

Air Piracy

A number of Conventions entered in the 1960s and 1970s deal with certain types of terrorist offences, in particular, aircraft hijacking. They require certain offences to be subject to extradition, notwithstanding that they may have political elements.

The Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft 1963,  the Hague Convention for the suppression of Unlawful Seizure of Aircraft 1970, the Montreal Convention for the suppression of unlawful acts against the Safety of Civil Aviation 1971  were implemented by the Air Navigation and Transport Acts 1973 and 1975.

They made provisions for hijacking,  other air piracy offences and interference with aircraft safety.  The relevant offences are deemed extraditable.

Persons arrested for the offences are deemed to be arrested under an extradition warrant for the relevant state of jurisdiction. The 1965 Act has been applied under these Conventions to numerous states in this respect.

Terrorist Offences

The UN Convention on Suppression of Terrorist Bombing, the UN Convention on the Taking of Hostages, UN Convention on the Suppression of Financing of Terrorism was given effect by the Criminal Justice (Terrorist Offences) Act 2005 and orders thereunder.

The 2005 Act provides that

‘political offence’ does not include any of the following:

• the taking or attempted taking of the life of a Head of State or a member of his family;
• an offence within the scope of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances done at Vienna on the 20th of December, 1988;
• an offence within the scope of the International Convention for the Suppression of Terrorist Bombings adopted by resolution 52/164 of the General Assembly of the United Nations on 15 December 1997;
• an offence within the scope of the International Convention for the Suppression of the Financing of Terrorism adopted by resolution 54/109 of the General Assembly of the United Nations on 9 December 1999;”.

Human Rights Offences

The UN Convention against Torture and another Cruel inhuman or Degrading Punishment is aimed at state actions in the areas. Its provisions prohibit extradition to states of persons who may be subject to torture and abuse of human rights.  The Criminal Justice (United Nations Convention Against Torture) Act 2001 give effect to the Convention. Orders have been made under the Extradition Act, giving effect to the provisions.

The International War Crimes Tribunal and International Criminal Court are the subject of the 1998 and 2006 legislation mentioned above.  There are procedures equivalent to extradition and other assistance measures, including proceeds for the confiscation of the proceeds of crime legislation.

Drug Trafficking

The UN Convention against Illicit Traffic in Narcotics Drugs and Psychotropic substances were are implemented by the Criminal Justice Act 1994 and the Misuse of Drugs Act.  In the same manner, orders have been made under the Extradition Act making serious narcotic and drug offences is extraditable.

The Criminal Justice (Illicit  Trafficking by Sea) Act applies to persons who are arrested outside of the territorial seas on a ship registered in a country that is party to the UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances and the Agreement on Illicit Traffic by Sea. There is a special provision providing for arrest outside the jurisdiction.

There is a procedure whereby a person may be remanded in custody by the High Court.  There is a provision whereby a state party to the convention may request to be surrendered. Some of the general Extradition Act provisions do not apply.

There is a period during which the request for extradition or delivery may be made.  If the person has not been delivered up within one month of being detained, he may apply to be released.

Protected Officials

The UN Convention on the Safety of United Nations and Associated Personnel is given effect by the Criminal Justice (Safety of United Nations Workers) Act 2000. Offences under the legislation are deemed extraditable.

The Prevention of Corruption (Amendment) Act gives effect to certain provisions of the Convention on  Combating Bribery of Public Officials.  It also gives effect to certain parts of the Convention on Corruption.

The UN Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including diplomats was given effect in the Criminal Justice (Terrorist Offences) Act.  Orders have been made under the Extradition Act, applying it to relevant countries.

The Convention on the Suppression of Unlawful Acts against the Safety of Marine navigation and the Protocol for the Suppression of unlawful acts against the safety of Fixed Platforms in the Continental Shelf is given effect by the Maritime Security Act 2004.