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August 30, 2018

Pakistan may soon ink an extradition treaty with UK


August 30, 2018

LAHORE: From the look of things in Islamabad and from the vibes being emitted by key PTI leaders in new government, Pakistan may soon start work on inking an extradition treaty with the United Kingdom to bring back corrupt state functionaries and those wanted in heinous crimes.

If Pakistan succeeds in signing this accord, it would join the club of at least 105 countries that have till date had such agreements with the United Kingdom.

Newspaper archives further show that Pakistan had earlier sought to sign an extradition treaty with the UK, but the British government had expressed its reluctance to ink any such accord under the pretext that it does not sign extradition treaties with countries subjected frequently to military rule.

This seems correct because the UK has not entered into extradition treaties with most of the Commonwealth countries, except India.

According to the "Hindustan Times," India had made several extradition requests since a treaty with the United Kingdom was signed in 1992, but only one had succeeded till May 2017, though there were indications that pending cases might be expedited.

In May 2017, the "Hindustan Times" had written: "Key Indians wanted but based in the UK include Lalit Modi, Tiger Hanif, Nadeem Saifi, Ravi Sankaran and Vijay Mallya. The only person extradited so far was Samirbhai Vinubhai Patel in October 2016. He was wanted in a case related to the 2002 Gujarat riots."

In November 2017, a British court currently hearing the extradition case of embattled Indian liquor baron Vijay Mallya, had rejected two extradition requests by the Indian authorities.

Judges had ruled in favour of UK-based alleged bookie Sanjeev Kumar Chawla on October 16, 2017 and also discharged a fraud case against a British Indian couple, Jatinder and Asha Rani Angurala, on October 12, 2017.

A comparative study in this context shows that Russian constitution prohibits extradition. For example, it had refused to hand over its citizen Andrei Lugovoi to United Kingdom. The man was wanted for the poisoning of dissident Alexander Litvinenko in London in 2006.

Germany also has a very strong constitutional law in this regard. If the German Constitutional Court feels the request is not proportionate - perhaps for being a minor offence – it can block the extradition.

The Netherlands usually seeks to request that any of its nationals accused of crimes committed abroad is tried or made to serve a sentence on its soil.

France has provided refuge to Director Roman Polanski, wanted by the United States after fleeing before he could be sentenced for having sex with a minor in 1977, because of his French citizenship.

Another French citizen Ira Einhorn was convicted in the United States in absentia for the murder of his girlfriend in 1977. He enjoyed the protection of the French legal system for a number of years, not because of French citizenship, but because France holds that trial in absentia is an abuse of human rights.

The countries that signed extradition treaties with the United Kingdom include:

Algeria, Andorra, Antigua and Barbuda, Argentina, Armenia, Australia, Azerbaijan, the Bahamas, Bangladesh, Barbados, Belize, Bolivia, Bosnia and Herzegovina, Botswana, Brazil, Brunei, Canada, Chile, Colombia, Cook Islands, Croatia, Cuba, Dominica, Ecuador, El Salvador, Fiji, Gambia, Georgia, Ghana, Grenada, Guatemala, Guyana, Hong Kong SAR, Haiti, Iceland, India, Iraq, Israel, Jamaica, Kenya, Kiribati, Lesotho, Liberia, Libya, Liechtenstein, Macedonia FYR, Malawi, Malaysia, Maldives, Mauritius, Mexico, Moldova, Monaco, Montenegro, Nauru, New Zealand, Nicaragua, Nigeria, Norway, Panama, Papua New Guinea, Paraguay, Peru, Russian Federation, Saint Christopher and Nevis, Saint Lucia, Saint Vincent and the Grenadines, San Marino, Serbia, the Seychelles, Sierra Leone, Singapore, Solomon Islands, South Africa, Sri Lanka, Swaziland, Switzerland, Tanzania, Thailand, Tonga, Trinidad and Tobago, Turkey, Tuvalu, Uganda, Ukraine, Uruguay, United Arab Emirates, United States of America, Vanuatu, Western Samoa, Zambia and Zimbabwe etc.

By year 2000, according to "The Guardian," there were 33 countries with which Britain did not have an extradition agreement.

These included:

Afghanistan, Armenia, Azerbaijan, Bahrain, Belarus, Bhutan, Cameroon, China, Dominican Republic, Egypt, Ethiopia, Georgia, Iran, Japan, Kazakhstan, Kuwait, Kyrgyzstan, Madagascar, Mongolia, Namibia, Oman, Pakistan, Qatar, Russia, Saudi Arabia, South Korea, Tajikistan, Turkmenistan, UAE, Ukraine, Uzbekistan, Venezuela and Yemen.

Research conducted by the "Jang Group and Geo Television Network" shows that although no formal Pak-UK extradition treaty exists till date, Section 194 of the UK Extradition Act 2003 does allow and contains provisions for special "ad hoc" extradition arrangements.

Contrary to Pakistan which did hand over killers of a British teenager in 2004, the United Kingdom has probably never made these special "ad hoc" extradition arrangements to hand over any accused to the Pakistani authorities. History of UK managing to extradite killers of its citizen from Pakistan:

A former British legislator and the nominated Punjab Governor, Ch Muhammad Sarwar, had once used his connections in Pakistan to secure extradition to Britain of the killers of 15-year-old Kriss Donald, who was murdered in Glasgow in March 2004. This was the first ever conviction for racially-motivated murder in Scotland.

Teenager Donald’s murderers (Daanish Zahid, Imran Shahid, Zeeshan Shahid, Faisal Mushtaq and Zahid Muhammad) had fled to Pakistan, but despite absence of an extradition treaty, Ch Sarwar had lobbied to convince then Pakistani President Pervez Musharraf to have the culprits sent back to the UK to stand trial.

Donald was abducted and stabbed 13 times, before being doused in petrol and set on fire. Three of the five suspects were arrested in Pakistan in July 2005 and extradited to the U.K., despite the fact that there were numerous diplomatic complications, including the apparent divergences between government activities and those of ambassadorial officials.

The three extradited suspects, Imran Shahid, Zeeshan Shahid and Faisal Mushtaq, all in their late twenties, had arrived in Scotland on October 5, 2005. They were charged with Donald’s murder the following day. Their trial had opened on October 2, 2006, in Scotland and on November 8, 2006, the three men were found guilty of the racially motivated murder of Kriss Donald.

All three had denied the charge; however, a jury at the High Court in Edinburgh had convicted them of abduction and murder. Each of the killers had received sentences of life imprisonment.

(References: The July 19, 2013 report of a Scottish regional news service "STV News," The Scotsman of Edinburgh, the November 10, 2006 edition of "The Hindu", the "London Evening Standard," the "Guardian" and November 8, 2006 report of BBC News)

Research shows that Britain can still refuse extradition requests despite having signed extradition treaties in line with its Extradition Act of 2003, which is an Act of the Parliament of the United Kingdom which regulates extradition requests by and to the United Kingdom. This Act had come into force on January 1, 2004.

This Act had transposed the European Arrest Warrant framework decision into British law and implemented the UK side of the controversial UK-US Extradition Treaty of 2003 before this accord had formally come into force in April 2007 after being ratified by the US Senate in 2006.

The reasons for refusing extradition requests may include:

Double jeopardy: A person must not be prosecuted or sentenced in respect of an offence that he has already been convicted or acquitted of.

Extraneous considerations: The request will be refused if the purpose of the request is deemed to be to prosecute or punish the person on account of race, religion, nationality, gender, sexual orientation or political opinions, or if extradited the person might be prejudiced at his trial or punished unfairly for any of these reasons.

Passage of time: The request will be refused if it would be oppressive to prosecute or punish the person for the extradition offence due to the age of the alleged offence.

Age of wanted person: Extradition is not possible if due to his age the person could not be convicted of the offence in the United Kingdom.

Absence of specialty provisions: Specialty is the principle that a person may only be dealt with in the requesting state for the conduct in respect of which extradition was ordered. Extradition instruments invariably include specialty provisions.

Earlier extradition of the wanted person to the United Kingdom: In order to permit extradition to the requesting state in this situation the United Kingdom must first obtain permission from the state that extradited the person to the UK.

Human rights: Extradition will be refused if it would not be compatible with the person’s rights under the European Convention on Human Rights within the meaning of the Human Rights Act.

Death penalty: A person must not be extradited if there is a possibility that the person will be sentenced to death. Extradition may be possible if the requesting state gives an undertaking that the death penalty will not be imposed.

Physical or mental condition: If it would be unjust or oppressive to extradite the wanted person on these grounds the extradition request will either be refused or adjourned until the condition improves.

Forum: A person must not be extradited if the judge decides that a substantial measure of the activity in question was performed in the United Kingdom and that, having regard to a range of matters specified in the Act relating to the interests of justice (and only those matters), the extradition should not take place.

Proportionality: In relation to European Arrest Warrant cases where the requested person is wanted for prosecution, extradition must not take place if the judge decides that extradition would be disproportionate taking into account the seriousness of the conduct alleged to constitute the extradition offence, the likely penalty and the possibility of the foreign authorities taking less coercive measures than extradition.

Absence of a decision to charge and try: In European Arrest Warrant cases involving accusation warrants, extradition is not possible where it appears to the judge that there are reasonable grounds for believing that the requesting authority has not yet taken a decision to charge and try the requested person unless the sole reason for that situation is the absence of the requested person.

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