Extradition – A Guide for Expats

Introduction - A guide to extradition is something sorely lacking in the expat community. Our law firm gets questions about extradition all the time by people seeking a second residency or citizenship. In practically every instance we can think of the inquiring person mistakenly believes something they have done or is about to do falls within the criminal realm. These offenses are typically only civil violations that would result in money judgments and in many instances are not even criminal or civil violations. Things like getting a second citizenship, residency, and passport are often mistakenly perceived to be crimes by many people. Others think not paying ordinary debts (not taxes, not child support) before they leave their homeland constitutes a crime. Since so many people about to enter the world of being an Expat are concerned with extradition we thought we would cover it as best as we could. This is not an all encompassing work and research needs to be done on a country by country basis. Extradition guidelines can be vague, enforcement can be even more vague and retaining a good lawyer familiar with extradition laws in the country where the person currently is can be of the utmost importance. This work is not extradition legal advice and don’t take it as such. This area of law is complex and what the printed word says is the law if often not what happens in reality. This law firm, Panama Legal, S.A., does not practice in the criminal area and does not take extradition cases anywhere.

Definition of International Extradition - This term refers to a formal international process whereby a person found in one country is surrendered to another country for the administration of punishment if the person has already been tried and found guilty and sentenced or for extradited for trial if the person is wanted to stand trial for a crime. There is no such thing as extradition for civil matters, it has to be criminal. Extradition requests must be made by national governments not by smaller government agencies like cities. Extradition is a diplomatic procedure going through diplomatic channels so there is not a massive amount of this type of process taking place. Diplomatic channels are slow, expensive and the diplomats are worried about being thought to abuse or take advantage of the treaty or relationship. When an extradition is fought by the suspect or convicted fleeing criminal it takes its toll on the resources, court system, prosecutors, budget etc. of the country being requested to extradite.

Legal Basis for Extradition – Extradition can be granted two ways. One way is by treaty between two countries. The treaty can specify crimes covered and other particulars such as dual criminality. Dual criminality means the offense must also be an offense in the country being requested to conduct the extradition. The treaty may even include a list of extraditable offenses. Some countries while lacking an extradition treaty with the requesting government may still grant the extradition due to the diplomatic relations they have with the country which is the second method – diplomatic. They may grant the extradition to preserve the diplomatic relations with the requesting country, or it could be because they do not want that individual in their country, or it could be because the individual being extradited did not legally fight the extradition, or any one of a number of reasons. Remember this area of law is often ill defined and political implications can be powerful.

Extradition Exceptions – Every extradition treaty in existence in the world limits extradition to certain crimes and conditions. Often a country will not allow its citizens to be extradited to other lands, even if they are a dual or multi-national. Usually the person would have to have had this citizenship prior to the date the crime in question was committed. Some countries that follow this practice are: France, Germany, Austria, China and Japan. Mexico, Canada and most of the EU countries will not allow extradition if the death penalty is involved. To get such an extradition the requesting country must guarantee that there will be no death penalty in the case. Some countries will try and punish their own citizens, in their own country even though they committed the crime abroad as a replacement for extradition. Imagine one fighting an extradition only to be tried at home and getting a longer sentence. Remember this area of law is most ill defined and vague. Dual criminality is another feature found in many extradition treaties and practices. This means that in order for an extradition to be successful the crime in question must be a crime not only in the requesting country but also in the country where the person being extradited is residing at the time of the extradition request. Let us use Panama for an example. Let us say a person is living in Panama and has committed income tax fraud in another nation where it is a crime. Now that nation is requesting extradition from Panama. The dual criminality provision would apply and Panama has no laws making any sort of tax offense including income tax fraud a crime, so the extradition would fail due to the lack of dual criminality. Statue of limitations is another area that comes into play with extradition if the person has not been tried and sentenced. Crimes are usually only prosecutable for certain periods of time and then it is over. This is referred to as a statue of limitations. This can be a complex area and things could happen to stop the statue of limitations with some countries under certain conditions. What happens if one fights the extradition hard enough to cause the statue of limitation to run out? These laws are ill defined and only a legal expert in the country in question has a chance of being able to give accurate advice and even he or she may not decisively know how things will turn out. Remember international political undercurrents can have influence as to the outcome.

Other Measures if a Person is not Extraditable – Remember this area of law is ill defined and there are other options open to governments is they really wish to go after a criminal or suspect. One thing the requesting country can do is revoke the passport of the individual in question if their passport is from the country that wants them. They can do this for whatever reason they wish to use since they issued the passport. If the person does not have another passport, citizenship or residency this leaves the person open for deportation. Being in a foreign land as a non resident is generally not allowable if the person does not have a passport that is valid. Applying for residency while another country has an open arrest warrant for you is not something one should count on as a feasible plan. If the person is scheduled for deportation the home country that wants this person will step in and offer to take the person home- to stand trial or go to jail of course. If the person was a resident, citizen or had another passport from a different country that was acceptable to the country the person was in, then this approach would not be productive in that the person had lawful grounds to remain in the country even after the passport was revoked so no deportation should result. Being a dual or multi-national can have advantages at times. Abduction is something countries have resorted to many times in recent years. They just snatch the person and return him to the country where the crime was committed or even abduct the person to where they want the person tried. These abductions are a politically sensitive thing and not a whole lot of them goes on but it could happen. Another option is the person could be detained and extradited from a third country while traveling. The requesting country could have Interpol or other law enforcement agencies put a locate on the person and a third country might be willing to detain the person and allow extradition procedures. This is called an Interpol Red Notice and is not an Interpol Arrest Warrant. It is something used to locate persons for deportation and extradition.

Of course the person could hire local counsel and fight it but whether or not it would work is a question best left for the legal experts in that country.

Conclusions- Much depends on which country wants a person and for what. Today a country could request extradition of a person who never was a citizen or resident of that country for a crime when that person may never have ever set foot upon the soil of that country. This could be a conspiracy offense, an internet offense, a stock market offense, international banking offense and so forth. Many countries will not extradite their citizens. If the crime is not a crime in both countries extradition may not work. If extradition does not work a determined government may take other measures. Extradition appears to be a costly and time consuming process especially if one fights the extradition. Not every country is devoted to spending fortunes on prosecuting criminals, some seem to spend money on such endeavors as if they had unlimited funds others view it as a frivolous waste of the taxpayers money especially if the person is not a threat to their citizens since the criminal is out of their country and probably permanently. This is a vague area of law with no clear steadfast rules and expert country by country legal advice must be sought.

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