Report No. 262

(iv) Death penalty and the law of extradition

3.8.32 The law of extradition has been another tool for countries pushing for the abolition of the death penalty.167 Several abolitionist countries either require assurances that retentionist-extraditing countries not impose the death penalty, or have included such a clause in bilateral extradition treaties.168 Abolitionist countries are often bound to ensure this. For example, Article 19(2) of the Charter of Fundamental Rights of the European Union states:

No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.

167 For example, abolitionist countries put pressure on those who retain the death penalty by refusing extradition requests for persons wanted for offences carrying the penalty. See Roger Hood, Carolyn Hoyle, The Death Penalty: A Worldwide Perspective, at page 35, (5th ed. 2015).

168 For example, China has signed extradition treaties with Spain, France and Australia, saying it will not impose the death penalty on individuals extradited from these countries. See Roger Hood, Carolyn Hoyle, The Death Penalty: A Worldwide Perspective, at page 38, (5th ed. 2015).

3.8.33 Several courts have made seminal pronouncements on the issue. For example, in the case of Soering v. UK, Application no. 14038/88, available at:
http://hudoc.echr.coe.int/eng?i=001-57619 (last viewed on 20.08.2015), the European Court of Human Rights held that the extradition of a person from the UK to Virginia, a state in USA which imposed the death penalty, would violate the European Convention of Human Rights because:

The very long period of time spent on death row in such extreme conditions, with the ever present and mounting anguish of awaiting execution of the death penalty, and to the personal circumstances of the applicant, especially his age and mental state at the time of the offence, the applicant's extradition to the [US] would expose him to a real risk of treatment going beyond the threshold set by Article 3 [Prohibition of Torture].

3.8.34 In the case of US v. Burns, [2001] 1 SCR 283 the Supreme Court of Canada held that in cases of extradition to a retentionist country, assurances "that the death penalty would not be imposed, or, if imposed, would not be carried out" were essential in all but "exceptional" cases.

Similarly, in the case of Mohamed and Another v. President of the Republic of South Africa, 2001 (3) SA 893 (CC) the South African constitutional court held that "a 'deportation' or 'extradition' of Mohamed without first securing an assurance that he would not be sentenced to death or, if so sentenced, would not be executed would be unconstitutional," adding that such an extradition violated his "right to life, his right to have his human dignity respected and protected and his right not to be subjected to cruel, inhuman or degrading punishment."

3.8.35 Similar jurisprudence can also be found in international law. In Roger Judge v. Canada, Communication No. 829/1998, U.N. Doc. CCPR/C/78/D/829/1998 (2003) the Un Human Rights Committee, dealing with a man deported from Canada to the US, held that "Canada, as a State party which has abolished the death penalty, irrespective of whether it has not yet ratified the Second Optional Protocol to the [ICCPR], violated the author's right to life under article 6, paragraph 1, by deporting him to the [US], where he is under sentence of death, without ensuring that the death penalty would not be carried out." Roger Judge v. Canada, Communication No. 829/1998, U.N. Doc. CCPR/C/78/D/829/1998 (2003), at para 10.6.

3.8.36 India's Extradition Act, 1962, reflects this principle in Section 34C: "Notwithstanding anything contained in any other law for the time being in force, where a fugitive criminal, who has committed an extradition offence punishable with death in India, is surrendered or returned by a foreign State on the request of the Central Government and the laws of that foreign State do not provide for a death penalty for such an offence, such fugitive criminal shall be liable for punishment of imprisonment for life only for that offence."