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打击有组织犯罪中的国际合作

  Japan has an extradition treaty with USA.Thailand also has extradition Act of 1929.China has extradition provisions in a legal package covering some aspects on international cooperation,while Colombia also has an extradition treaty with USA.
  In the case of countries in the South Asia Association for Regional Cooperation(SAARC),which include Bangladesh,Sri Lanka,India,Pakistan,Nepal,Bhutan and Maldives,extradition is done not under a legal treaty but on the basis of convention agreed upon by member states.
  Some members of the group also expressed that where there is no treaty or convention in their countries extradition of a fugitive offender reciprocity basis or is sometimes done on on what others call international courtesy.But this depends on the political goodwill of the requesting and requested states.
  Discussing the effectiveness of extradition legislation of each member state,members of group 4 unanimously agreed that while the existing legislations do to a certain extent fulfill what is required in international cooperation,some of the exceptions embodied in the legislations allow courts to interpret them in such a way which seem to favour criminals,thus thwarting the whole effort of combating organized crimes.
  The group discussed these factors which if interpreted wrongly could be a hindrance to a successful extradition of fugitive of- fenders as follows:
  A.Principle of Political Offences
  One of the grounds for denial in extradition is when the fugitive criminal has committed a political offence or offence of a political character.This is also one of the principles under international law.The group unanimously agreed with this principle only on absolute cases of political character like treason,etc.The members critically observed that the interpretation of political offences given by some courts to include even incidental or related offences, some of which are far remote from the factual situation should be avoided.A terrorist who uses a bomb attack on a passenger plane killing hundreds of innocent people,taking of hostages,hijackings,kidnappings for ransoms are some of the examples where criminals should not be allowed to escape punishment on the mere pretext that what he did was political. The group commented that the definition of political offences given by some scholars and judges to mean even incidental offences which form part of political disturbance should be interpreted very sparingly not to include most extreme acts of barbarism against innocent citizens.Each case should be examined on its merits based on the factual situation.
  B.Principle of Speciality
  Under this principle,extradition of a fugitive offender cannot be granted if the requested state believes on reasonable grounds that the offender will be prosecuted in a requesting state for an offence other than an offence for which request is made. The group agreed that this principle is vital and valid because of the intrinsic value of humanity.
  C.Principle of Dual Criminality
  This is also a principle under international law that an offence for which request of extradition is made should be an offence in both states.This principle was unanimously agreed upon by all members of the group on the ground that a person should not be deprived of his/her liberty for a behaviour which is not an offence under the law of a requested state.Doing this would be to infringe the United Nations Convention on the Fundamental Basic Principle of Human Rights which in some countries is also embodied in their constitutions.
 However,members cautioned that when examining whether the offence is punishable in both states,regard should be given to acts if they constitute an extraditable offence by both states,and not by merely examining the name or category of the offence.Example was given that an offender was extradited to USA from Japan on a conspiracy charge of smuggling heroin. Japan does not have a conspiracy charge but accepted extradition because through interpretation,the facts revealed that the offender was an accomplice to the offence of smuggling heroin,which is extraditable under the Japanese law.
  D.Extradition of Nationals
  Under the Geneva Convention,states are under no obligation to extradite their nationals who commit offences in foreign countries. Many states hesitate to surrender their nationals to foreign states for prosecution.
  However many extradition legislations are silent on this principle except a few like the Japanese extradition treaty with the USA which gives power to a requested state to extradite its nationals on its discretion.Since this treaty became effective in 1980,Japan has surrendered three Japanese nationals to USA.
  Mexico is another example which under its constitution can extradite its nationals.
  Korea also has extradition treaties with Australia,Canada,Brazil,Spain,Paraguay,Argentina,Mexico and Thailand.Under these treaties,requested states can extradite their nationals.
  There are two views on whether states should extradite their nationals.Those who refuse to extradite their nationals argue that, states have the right to protect their nationals,so any breach of the law should be dealt with under domestic laws.Those who are in favour of extraditing nationals of requested states argue that,foreigners owe allegiance to the laws of the country where they reside,so any breach of the law should be punished in the country where laws are breached.
  The group discussed in detail this subject matter and unanimously agreed that,extradition of nationals should be the discretion of the contracting states and must be specifically stated in the treaty.Except the Colombian participant who maintains the principle of non-extradition of nationals,the rest were of the view that in extreme or serious cases like drug trafficking, hijacking,or terrorism,which cause terror among the world community,extradition of nationals who commit such crimes should be mandatory.The group added that even in some other cases where extradition of nationals is discretional,and requested states refuse to extradite their nationals, effort should be made to prosecute them under their domestic laws,bearing in mind the principle of double criminality.In this way,our effort to combat international organized crimes will yield fruits.


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