Traditionally, international relations have dominated extradition law and practice, with the rights of the requested person receiving very little consideration.
On more than one occasion, Maltese courts have affirmed the limited nature of their inquiry in extradition proceedings. As extradition currently operates in our country, there always remains the possibility that a bona fide claim of unfair treatment would not receive adequate consideration by either the judicial or executive branches.
Both the government and the opposition are ostensibly in agreement that our current extradition law should be revisited in light of the legal and judicial issues that cropped up in the US extradition request for Daniel Jo Meli.
One of the intended amendments is to provide adequate time for an extraditable person to reflect before deciding whether to accept or not being extradited to face trial in a foreign country. As it is, Article 15(5) of our Act (Chapter 276) lays down that where the person arrested declares before the court of committal that he is willing to be extradited, the court, upon being satisfied of the voluntariness of such declaration, shall commit him to custody to await his return.
The main aim is to assimilate such judicial preliminary procedures to those normally practised in a normal criminal court when an accused pleads guilty upon arraignment and such admission is confirmed after the court grants time to the accused to reconsider.
Moreover, some human rights can play a material role in Maltese extradition law. An exception is found in Article 6 of the European Convention on Human Rights, which protects the right to a fair trial. It plays only a partial and limited role. That role can experience contrasting fortunes. While the right has come to have a degree of applicability within our extradition hearings, its extraterritorial operation can be further restricted.
Our law makes it quicker and easier to extradite people from one country to another to face trial or serve a sentence. Having an effective extradition system is important but there is always the possibility that it may be used in ways that threaten people’s human rights.
Extraditing people to countries where their human rights are at serious risk or extraditing them for minor offences where the human and financial cost of extradition is disproportionate would definitely be in breach of human rights; as would be extraditing individuals facing long periods in pre-trial detention in countries where they may not speak the language or have any family support.
Take the European arrest warrant (EAW), for example. It is operating in the EU as a fast-track system for the arrest and extradition of a person to stand trial or serve a prison sentence in another member state. It is now being disproportionately used for all types of offences, with negative impacts on people’s fundamental rights.
People subject to EAWs are typically deprived of their liberty, either at a pre-trial stage pending their surrender or after sentencing for the execution of detention orders.
The courts are the traditional protectors of individual rights in our country- Mark Said
This is not to mention the worldwide problem of overcrowded prisons with worsening prison conditions, undermining mutual trust and the functioning of mutual recognition instruments like the EAW.
True, our Extradition Act lays down certain exceptions to Malta’s obligation to extradite based on its belief that, under specified conditions, extradition would lead to unfair treatment of the requested person by the requesting country. As such, therefore, the courts or the executive branch can apply them to block extradition. However, those exceptions fail to exhaust all conceivable instances of unfair treatment that may await an extradited person.
Undeniably, the unfair treatment or humanitarian exception, if applied by the courts, would directly implicate another country’s criminal justice system, so its use would have to be restricted to the most egregious circumstances.
But why shouldn’t a functioning humanitarian exception permit the courts to deny extradition when the requested person makes a convincing claim that the requesting country either will not afford the relator a fair trial, based on pre-extradition occurrences or convincing evidence of likely post-extradition practice, or will impose fundamentally unfair or inhumane conditions of imprisonment?
While one may identify a need for rather than the implementation of the exception, the soundest route to judicial access to the exception would be to write the exception into our law or extradition treaties themselves, as, for example, Sweden regularly does.
The courts are the traditional protectors of individual rights in our country, and because the courts would be less subject to external political pressures in the rare instance in which the humanitarian exception would be applicable, the courts should be able to apply the humanitarian exception.
Other changes to our law could be warranted. For example, while Malta should in principle remain free to refuse the extradition of its nationals, as France and Israel have done, it should, in that event, try the offence under its own law.
Other safeguards could be added to our law to ensure that basic human rights are respected, such as a requirement to exhaust less severe alternatives before turning to extradition, or protection against extradition to stand prosecution before a case is trial-ready, which can result in unnecessarily lengthy periods of detention before trial.
In a world of increased mobility, interactive technology and new forms of criminality, extradition represents an essential response to the characteristics of contemporary crime but never at the expense of the full protection of modern human rights.
Mark Said is a lawyer.