21 Apr 2022
Extradition is one way of extending international judicial cooperation between various countries concerning criminal matters. Extradition plays an exigent role in ensuring that the fugitive offenders cannot easily escape from being prosecuted for the offence they committed just by running out of the country with jurisdiction to try such offences. Extradition can be defined as an act of surrendering a fugitive criminal, by the state where such fugitive offender has escaped to post committing the offence, to the state with jurisdiction to try that matter or where the fugitive offender committed such crime.
The United Arab Emirates (UAE) has actively participated in sending and accepting several extradition requests. The UAE’s government has entered into several bilateral extradition treaties with various countries globally; this clearly reflects their intentions to extend international judicial cooperation with respect to criminal matters. UAE has entered into treaties with the United Kingdom, India, Pakistan, China, France, and South Africa. Further, the UAE’s government has ratified the Riyadh Convention regarding Judicial Cooperation between all Middle-East Countries such as Oman, Saudi Arabia, Morocco, Iran, Bahrain, Tunisia, Lebanon, Libya, Jordan, Algeria, among others. The UAE’s government has incorporated Federal Law Number 39 of 2006 on International Judicial Cooperation in Criminal Matters (the Extradition Law of UAE), to regulate extradition requests. The extradition requests received by the UAE are regulated either by the provisions of the extradition treaty that exists between the UAE and the contracting state or in the absence of such extradition treaty, by the provisions of the UAE’s extradition law. Many countries honor extradition requests even in the absence of extradition treaties as a general rule of reciprocity in extending support in criminal matters. This article shall briefly discuss the provisions laid down in the Extradition Law regulating the extradition requests to UAE.
International Judicial Cooperation:
Article 2 of the Extradition Law stipulates that without prejudicing the international conventions to which UAE is a member and based on reciprocity, the judicial parties in the UAE shall cooperate with foreign judicial parties with respect to criminal matters in accordance with the provisions of the Extradition Law. Article 4 of the Extradition Law of UAE states that provisions of Federal Law Number 3 of 1987 on the Penal Code (the Penal Code) and other such relevant law shall be taken into consideration on any subject matter that is not covered by the provisions of the Extradition Law.
Surrender of Persons to Foreign State:
Article 6 of the Extradition Law provides that request to surrender any person from the UAE to the foreign judicial authorities for the purpose of investigation of any offence, or partial prosecution or for the enforcement of judgements decreed against such person shall be processed as per the provisions of the Extradition Law. Article 7 of the Extradition Law lays down the conditions upon which the extradition request by the foreign judicial authorities will be either granted or denied, as follows:
- The offence for which the extradition treaty is sought shall be punishable with imprisonment for a term of one (1) year or with any other severe penalty as per the law of the country requesting for extradition;
- Similarly, the offence for which the requesting country is seeking the extradition request shall be a crime which is punishable with imprisonment for a period of one (1) year or with any other severe penalty if it is committed in the UAE in line with relevant laws of UAE;
- If the extradition request is sought for the purpose of execution of an imprisonment period which is more six (6) months;
- As long as the offence for which the extradition request is sought is a punishable offence under the laws of both the requesting state and the UAE, then it is immaterial if such offence is covered under a different name, description or if the elements of the offence are different.
As per article 8 of the Extradition Law stipulates that the extradition request can be sought for several crimes which are punishable by the laws of both the country requesting and the UAE. However, if any one of the crimes or some of the crimes among the crimes for which extradition is sought fails to meet the conditions of imprisonment for one year or six months; the extradition request may still be granted as long as there exists at least one crime which has met the required conditions for a valid extradition request. Article 9 of the Extradition Law lays down the conditions or circumstances when an extradition request may not be granted, as follows:
UAE CITIZEN: If the person requested for extradition is a UAE national (Citizen of UAE).
JURISDICTION: If the UAE laws have specified as to which authorities have jurisdiction over the crime for which the extradition request is being sought.
POLITICAL OFFENCE: If the offense for which extradition is sought is political in nature or related to political crimes; and not heinous crimes like that of terrorist attacks, attack on the political heads of the requesting state, genocides, war crimes, etc.
DISCRIMINATION: If the grounds on which the extradition is being sought to punish the person requested to be extradited is due to religious, racial, or nationality reasons or political opinions or to use any such reasons to defame the person requested for extradition.
PREVIOUSLY TRIED: If the person requested to be extradited has been tried or subjected to go through investigation for the same offense for which extradition request is being sought.
JUDGMENT PASSED AND DULY SERVED: If the person requested to be extradited has been previously prosecuted for the same offence as that of for which the extradition request is being sought and has been acquitted or convicted but has fully served the punishment.
IRREVOCABLE JUDGEMENT: In case the UAE courts have passed an irrevocable judgement for the same offence for which extradition of the person is requested.
LAPSE OF TIME OR LAWSUIT TERMINATED: If the criminal lawsuit has been terminated or if the judgment has lapsed due to the law of limitation at the time of submitting such extradition request.
PROPORTIONATE PUNISHMENT: If the person requested to be extradited may be made subject to any kind of torture, inhumane or disrespectful treatment, or punishment that is not proportionate to the offense committed, the extradition request may be denied in such a case. However, if the crime for which extradition is requested is punishable with the death penalty in UAE and the same punishment is applicable for the offense for which extradition is sought as per the laws of the country requesting extradition, the extradition request may be granted.
In cases where the person requested to be extradited is part of any ongoing investigations or trials within UAE for different crimes, the surrender of such person requested to be extradited shall be carried out only after the termination of such ongoing investigation or where such trial has been dismissed by an unappealable judgement. However, if such a person is convicted, he shall be delivered to the requesting country only after serving the penalty imposed on him. Further, suppose the requesting state commits to return the person requested to be extradited within a period which is not beyond six (6) months from the date of surrender of such person. In that case, the UAE may grant temporary extradition of such a person requested to be extradited.
EXTRADITION PROCEDURE:
The extradition request shall be submitted in writing through the diplomatic channels, which will then be referred to the competent departments. The extradition request shall be submitted along with the below-stated documents, which are to be translated into Arabic and attested by the competent authorities, as follows:
1. Details of the person whose surrender is requested, such as photos (if any), or other information relevant to the person’s identification, place of domicile and citizenship;
2. A copy of the legal provisions and the penalty of the country requesting for extradition which applies to the offence for which extradition of the person is requested;
3. In cases, where there is an ongoing investigation against the person requested to be extradited, an official copy of the investigation statement of the crime and the arrest warrant issued by the relevant foreign judicial bodies, that represents the kind of offence, what actions of the person requested constitute such offence and the place and manner in which the crime took place;
4. If there is any enforceable judgment against the person requested to be extradited, then a copy of such judgment providing all the relevant details pertaining to the offense committed and the laws and penalty applicable for such offense.
Thereafter, the competent department will further the extradition request to the public prosecutor if the requesting country has met all the required conditions of the extradition request. In case, the competent department finds that the documents attached with the extradition request are insufficient, it may request the requesting country to submit any additional documents or information within a specified period of time to clarify any missing details relevant to the extradition request. Further, as per article 15 of the Extradition Law, in cases of emergency or urgency, if an arrest warrant has been issued by the judicial authorities of the requesting country, then the public prosecutor or his delegates may order for provisional arrest of the person against whom an arrest warrant has been issued, while the extradition request is still in the process of being received. However, depending on the severity of the offence for which extradition is being sought, the public prosecutor is at discretion to sanction bail for the arrested person in exchange for a personal or financial guarantee. The person requested to be extradited can be re-arrested post his release upon receiving the extradition request. In line with article 15, the public prosecutor or his delegate shall make the order to arrest the person requested to be extradited soon after receiving the extradition request. Thereafter, the person requested to be extradited shall be submitted to the public prosecution within forty-eight (48) hours from the time of the arrest. The public prosecution is required to provide the person arrested with all the relevant information about the reasons for arrest, the extradition request, the evidence present, and other such documents related to the extradition request. The person is given a right to have an attorney while presenting his statements of offense before the competent courts. The public prosecution is required to refer the extradition request to the competent court within a period of fifteen (15) days from the date of examining the extradition request, along with a written memorandum to be deposited at the clerk’s office of the competent court with all the relevant documents in support of the extradition request. The examination of the extradition request is conducted in a closed session in the presence of the public prosecution, the person requested to be extradited, and their attorney, and the decision shall be based on the hearing of the public prosecution and the defense. The competent can either deny or approve the extradition request in line with the provisions of Extradition Law. As per article 22 of the Extradition Law of UAE, the public prosecutor and the person requested to be extradited can challenge the decisions passed by the competent court by appealing to the competent court of appeal within a period of thirty (30) days from the date when such judgement has been issued, and where it was an ex-parte decision, from the date of notification to the absent parties. The surrender can only be processed after receiving the approval from the relevant authorities. Article 27 of the Extradition Law provides that, in cases where there are multiple extradition requests for the same person, then the decision shall be made in the following priority:
- The gravity of the offence and the extent of damage caused to the interests or security of the requesting state;
- Date and place of the crime;
- The nationality of the person requested to be extradited.
If the above-stated circumstances are present in several countries, then the surrender of the person shall be as per the country that initiated the extradition request first. The person arrested shall be released in case the country requesting fails to receive the person requested for extradition within a period of thirty (30) days from the date when the extradition request was granted. The person released can only be extradited after receiving a new extradition request and the decision to approve such extradition requests. In cases, where the person requested to be extradited cannot be received or surrendered within a period of thirty (30) days, the requesting country shall be notified of the final date determined by the competent judicial authorities for the surrender of the person requested to be extradited. In case the requesting country fails to receive the person requested to be extradited within the time period determined by the judicial authority, they are not allowed to file for another extradition request for the same offence against the same person. However, for all the instances, the maximum period of custody shall be only up to sixty (60) days, after which the person in custody can be released.
In Cassation Number 988 of 2018, the court has emphasized the extradition courts’ role and the rule of reciprocity. The court was of the opinion that extradition could be possible in line with the principle of reciprocity in the absence of an extradition treaty between the requesting country and the UAE, as long as the other substantive conditions for making an extradition treaty valid has been met by the requesting country. As the principle of reciprocity is considered as a supplementary and provisional source for an extradition request. Further, the court held that the court of extradition should base the extradition request’s approval on the existence of the relevant conditions as specified by the provisions of the Extradition Law, rather than basing it on the validity of the accusation or validity of any other reasons. As the court of extradition is deemed merely as a mechanism for international cooperation in curbing the crime and not a trans-national court. However, the extradition court may examine if the person requested to be extradited would be subject to any kind of torture or inhumane treatments or harsh punishments in the country requested.