21 May 2012

EXTRADITION LAW IN THE UAE WHO MAY / MAY NOT BE EXTRADITED?

Authored by: Olaide Esan

EXTRADITION LAW IN THE UAE WHO MAY / MAY NOT BE EXTRADITED

The UAE enters into and signs a number of international agreements and treaties each year with other countries on varying subjects including extradition. In this article, we discuss the salient requirements of UAE law on extradition, including who may or may not be extradited in the UAE.  
 
In brief
Extradition to a foreign country may be requested for a person residing in UAE for the purpose of interrogating, prosecuting or executing criminal judgments against such person.
In addition to the general requirement of UAE law on extradition, the provisions of specific treaties (if any) signed between UAE and particular countries, including the Riyadh Convention, may contain additional requirements and / or obligations.
The UAE authorities may refuse extraditions on certain grounds.
Federal Law No.39 of 2006 regarding International Judicial Cooperation on Criminal Matters (‘Law No. 39’), governs the extradition of criminals. In addition to the general requirement of UAE law on extradition, the provisions of specific treaties (if any) signed between the UAE and a country may contain additional requirements and / or obligations. For example, the UAE is signatory (together with 21 other Arab Countries), to the Riyadh Arab Convention on Judicial Cooperation which was ratified in the UAE by Federal Decree No.53 of 1999 (‘Riyadh Convention’).
     
Conditions for Extradition
Extradition to a foreign country may be requested for a person residing in UAE for the purpose of interrogating, prosecuting or executing criminal judgments against such person. In order to extradite persons from the UAE to a foreign country, the conditions set out in Article 7 of Law No. 39 have to be met.
 
1.       The crime that is the subject of extradition must be punishable under the law of the country requesting extradition (‘Requesting Country’) with a freedom restricting or custodial penalty of at least one year or any other severer punishment.
 
2.       The act for which extradition is required, if committed within the UAE, must constitute a crime punishable with a freedom restricting penalty for at least one year or any other severer penalty.
 
3.       If the matter subject of extradition pertains to execution of a custodial penalty, the remaining unexecuted penalty shall be no less than six months. 
 
4.       If the act subject of extradition constitutes a punishable crime under the laws of the Requesting Country and UAE, it is irrelevant if the crime is listed under a different name or description or if the elements of the crime are different.
 
Where an extradition request involves multiple crimes, each of which is punishable under the laws of both UAE and the Requesting Country, the request to extradite may be granted in so far as one of the crimes meets the conditions for extradition, even if the other crimes do not.
 
In addition to the conditions stated in Law No. 39, more extradition obligations exist under the Riyadh Convention in respect of countries (and their nationals) that are signatory (‘Signatory Country’) to the Riyadh Convention. Article 40 of the Convention lists a category of persons in respect of whom extradition shall be obligatory. These include the following:
 
(a)     Persons charged with committing acts punishable under the laws of each of the two Signatory Countries where both laws provides for a custodial penalty of one year or a more severe penalty.
 
(b)     Persons charged with acts not punishable by the laws of the country from where extradition is requested (‘Requested Country’), or where the penalty for the offences under the laws of the Requesting Country has no equivalent under the laws of the Requested Country, provided [in either case] the person subject to the extradition request, is a national of the Requesting Country or a national of another contracting party whose laws provide for the same penalty as those provided by the laws of the Requesting Country.       
 
(c)     Persons convicted in person or in absentia by the courts of the Requesting Country where the crime requires a custodial penalty of one year or a more severe penalty, for acts punishable under the laws of the Requested Country.
 
(d)     Persons convicted in person or in absentia by the courts of the Requesting Country who are not punishable by the laws of the Requested Country or who are subject to a penalty for which there is no equivalent in its laws, provided such individuals are nationals of the Requesting Country or of another Signatory Country that would apply the same penalty.  
 
As noted above, Article 40(b) and 40(d) of the Riyadh Convention does impose an obligation on a Requested Country who is a Signatory Country (such as UAE), to extradite persons charged or convicted of acts that are not punishable by its laws, or for which there is no equivalent penalty, so long as such persons are nationals of the Requesting Country or of another Signatory Country that would apply the same penalty.
 
Since the UAE is signatory to the Riyadh Convention, it is obliged to apply these provisions even though this appears to contradict one of the conditions for extradition as stated in Article 7(2) of Law 39. However, in a situation where there is a contradiction between the provision of the Riyadh Convention and a special treaty between any of the Signatory Countries, Article 69 of the Convention states that the provision that is more favourable towards facilitating the extradition of persons accused or convicted of crime shall apply.
 
The Riyadh Convention gives a Signatory Country the right to refuse to extradite its own national, provided it undertakes within the limit of its jurisdiction to charge its nationals who commit crimes in the other Signatory Countries, where the laws of both countries impose a custodial sentence of at least one year, or severer penalty. The Convention also gives the competent authorities of each Signatory Country the power to decide on extradition requests submitted to them in accordance with the laws in force at the time of submission.
 
Grounds for refusal by the UAE to extradite
There are some instances where an extradition request may be refused in the UAE. These include where:
 
1.       The subject person is a UAE national.
 
2.       UAE law gives jurisdiction to the competent judicial authorities concerning the crime subject of the extradition request. 
 
3.       The crime subject of the extradition request is a political crime or associated with a political crime.
 
4.       The crime subject of extradition is limited to violating military duties.
 
5.       There are sufficient reasons to believe that the extradition request is meant to pursue or punish a person due to his race, religion, nationality, political views or if these reasons are meant to undermine the position of such person.
 
6.       The subject person underwent investigation procedures or trial for the same crime subject of extradition and was acquitted; or convicted but served the punishment for which he was adjudged.
 
7.       A definitive judgment was issued by UAE courts concerning the crime which is the subject of extradition.
 
8.       The criminal lawsuit was forfeited or the penalty was dropped due to passage of time when the extradition application was filed.
 
9.       The person subject of extradition was subjected or could be subjected in the Requesting Country to torture, inhuman treatment, humiliating treatment or cruel punishment which does not conform to the crime, or the minimum assurances prescribed by the penal procedures code are not secured. 
 
Conclusion
Prior to making an extradition application in the UAE it is important to bear in mind not only the general requirements of UAE law on the subject but specific requirements of treaties and conventions to which the UAE and the country requesting extradition are party.