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Contemporary Problems of Extradition: Human Rights, Grounds for Refusal and the Principle Aut Dedere Aut Judicare (From UNAFEI Annual Report for 1999 and Resource Material Series No. 57, P 64-86, 2000)

NCJ Number
Michael Plachta
Date Published
September 2001
23 pages
This document discusses the mutual relationship between extradition and human rights.
Mutual relationships between human rights and extradition are often characterized as a “tension” between protective and cooperative functions of this form of international legal assistance. This problem can be approached and viewed from three perspectives. First, these relationships can be described in the “rule-exception” terms. Second, only one side sets the goal or the objective while the other has to yield by making necessary concessions. Third, the coexistence between the interests, needs, and values involved in the international cooperation in criminal matters and the protection of human rights should be sought and based on a reasonable compromise. This compromise would avoid the critical point beyond which human rights become unbalanced and constitute an obstacle to an effective cooperation in the fight against crime. The process of balancing all the interests involved should be carried out on two levels. First, human rights versus needs of law enforcement and international cooperation should be considered. Second, human rights of the requested person (fugitive) versus human rights of others (and society). In addressing and evaluating the relevancy of human rights, two criteria could be employed. One would emphasize the nature of a specific right as vital or necessary. The second criterion points to the scope, degree, and severity of the violation rather than the nature of the right. There is another category that raises the question of whether fair trial rights are relevant and applicable to extradition, and if so, which ones and to what extent. Two situations must be distinguished depending on whether there has been an actual violation of fair trial rights in the proceedings that have led to the conviction and sentence, or there is merely a potential for such a violation. The length of the list of the grounds for refusal of extradition is impressive. The longer list of grounds for refusal, the weaker the extradition may become. The principle aut dedere aut judicare states that if the offender is dangerous enough, it doesn’t matter where he is prosecuted and punished as long as justice is done. 62 footnotes