Moving suspects, evidence and prisoners – useful references or false comparisons?

Three forms of international legal cooperation often appear in international treaties together:  extradition; mutual assistance; and the international transfer of prisoners (ITP).  In practice, these processes may follow one after another; information is shared in order to build a brief of evidence to support an extradition request, and after a person’s conviction he or she may apply to be transferred to serve the remainder of the sentence.  In this way, they can be seen as interconnected parts in the process of investigating, convicting and punishing crimes that occur across international borders.  Extradition moves suspects, mutual assistance moves evidence and ITP moves prisoners.  However, there are also differences in the objectives and the implications of these processes and it is appropriate for the legal framework to reflect these differences.

Often, multilateral conventions such as the UN Convention on Transnational Organized Crime and the UN Convention Against Corruption deal with extradition, mutual assistance and ITP in successive articles, reinforcing the idea that they are interconnected parts of a broader transnational process.  Extradition, mutual assistance and ITP are all commonly handled through designated Central Authorities.  States appoint a Central Authority to make and receive requests as a more efficient alternative to handling requests through diplomatic channels.  In many cases, the Central Authorities for all three processes may be in the same government department.

Because mutual assistance developed as an adjunct to extradition, there are more marked similarities in the legal framework between these two processes than with ITP.  This also makes sense when you consider the aims of mutual assistance and extradition.  These two legal processes are intended to ensure that criminals who operate across international borders are still subject to the criminal justice process.  By comparison, ITP is intended as a rehabilitative and cost-saving measure; it aims to assist in the rehabilitation of prisoners who are detained abroad by allowing them to serve their sentences in their home countries (with the associated benefits of language, culture and familial support), as well as to lessen the burden for governments in providing consular support to prisoners abroad.

The grounds for refusal contained in extradition treaties are often very similar to the grounds for refusal in treaties on mutual assistance.  However, the treatment of these grounds differs, with extradition treaties more often providing for mandatory grounds for refusal and mutual assistance treaties tending to make these grounds discretionary.  The rationale for the different treatment of extradition and mutual assistance has been explained in the manual on the UN model treaties on extradition and mutual assistance.  It states that mutual assistance does not directly impact on a person’s liberty and therefore mandatory grounds for refusal may be considered unnecessary.  Treaties on ITP may have no specified grounds for refusal, but instead focus on the minimum period of detention remaining to be served and the need for all stakeholders to agree on the terms for the transfer.

The three processes can certainly have very different implications on a person’s liberty.  Extradition is generally seen as the process that requires the closest regulation as it involves an individual’s forcible detention and removal.  The international transfer of prisoners is seen as being on the other end of the scale, since the prisoner can only be transferred with his or her consent and therefore prescriptive safeguards are not necessary.  The situation for mutual assistance is much more complicated, with the impact on a person’s liberty varying according to the circumstances of the case.  If the information that is provided under mutual assistance is of little evidentiary value or is exculpatory, mutual assistance may have no negative impact (or even a positive impact) on the individual’s liberty.  However,  if the information forms a key part of a brief of evidence for a serious crime, it may have a fairly direct causal link to the person being arrested, prosecuted and convicted.

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