Gonzalo Bonifaz Tweddle***
Image taken from Proyecto Justicia of México Evalúa
Spanish version here
This year, 2021, will be very important in the fight against corruption around the world, particularly in Latin America and the Caribbean. For the first time, the United Nations General Assembly will hold a special session dedicated to the fight against corruption (A/RES/73/191); and, at the hemispheric level, it is expected that the IX Summit of the Americas will provide an opportunity for the region to showcase its accomplishments since the adoption of the Lima Commitment of 2018 (“Democratic Governance Against Corruption”).
One can add to these events the arrival of a new Biden-Harris administration to the White House, which announced during its campaign that fighting corruption will be a prominent part of its domestic and foreign policies. One of the priorities for the yet-to-be scheduled global “Summit for Democracy” is the fight against corruption (The power of America’s example: The Biden Plan for leading the democratic world to meet the Challenges of the 21st Century).
Although important steps have been taken in regard to fighting corruption, it is undeniable that these continue to be insufficient: one need only refer to the results of the Corruption Perceptions Index published last year by Transparency International, in which 180 countries and territories examined averaged out to a 43 (on a scale of 0 to 100, where 0 reflects high levels of corruption and 100 no corruption). With regard to “grand corruption” in the region, cases such as Lava Jato, in the matter of infrastructure projects (as well as activities related to drug trafficking, illegal mining, and money laundering, to name but a few), demonstrate that corruption remains rampant –to which new challenges presented by Covid-19 in public procurement processes and its control mechanisms must now be added.
It is necessary to highlight that there already exists an international framework to fight against corruption, including, at a global level, the United Nations Convention against Corruption (2003), and the Inter-American Convention against Corruption (1996) at the regional level; these instruments provide mechanisms for international assistance and cooperation. Within these frameworks, however, further examination is needed on the use of extradition as an effective and suitable tool to ensure that those accused of grand corruption face justice.
The aforementioned treaties on the fight against corruption regulate general aspects of extradition, and they foresee that States should also undertake bilateral agreements to deal with the matter more specifically. Peru has 14 regional bilateral instruments and a further 11 at a global level, and if we undertake a comparative analysis with other countries in the region, we can conclude that, in general terms, all are lacking in this regard.
These bilateral agreements may be an indispensable condition to the granting of extradition; even when this is not the case, the absence of such an agreement means that many of the details involving extradition are unclear, resulting in obstacles and difficulties that can complicate proceedings. Moreover, one must recall that extraditions are regulated both by international law as well as domestic regulations, and that respect for the latter must be considered within the normative frameworks of both the requesting and the requested States.
Domestic proceedings to authorize extradition vary, but at the regional level there is usually a mixed system in which both executive and judicial authorities take part. At a sub-regional level there are alternatives to expedite extradition, such as in the Central American Treaty on the Simplified Arrest and Extradition Warrant of 2005. In comparison, Member States of the European Union also operate within a simplified internal system regulated by the Council Framework Decision of 13 June 2002, which involves a mechanism that is wholly judicial.
The Latin America and the Caribbean region has made commendable contributions to the development of the judicial institution of extradition; one need only cite the long-running work of the Inter-American Council of Jurisconsults and the Inter-American Juridical Committee, which led to the approval of the Inter-American Convention on Extradition of 1981 (the writings of Profs. Isidro Zanotti and Ulpiano Lopez detail the evolution of this work – OEA/Ser.Q/V.C-3, CJI-30)[i].
Of note, this task has mostly focused on the substantive study of extradition, and much has been written about its nature (whether or not it constitutes an obligation under international law), requisites (reciprocity, double jeopardy, nebis in idem, statutes of limitation, minimum prison time, specialty) and causes of exclusion (nationality, political crimes, persecution, the death penalty, torture, lack of minimum guarantees of due process). There are, however, specific practical aspects that an extradition process entails that would merit further reflection in order to avoid situations that could lead to impunity.
Among these aspects we can refer to the following: 1) handling of different standards of evidence between the requesting and requested States (some don’t refer to evidentiary methods as a requisite, whereas others require that probable cause be supported by evidence); 2) definition of treaty terms based on different understandings (names of documents or stages of proceedings have to be interpreted in order to align); 3) the establishment of the format or structure of the extradition request (methods to standardize and facilitate its use: summary, table of contents, identification of procedural files); 4) drafting and presentation of arguments (with the goal of making these concise without affecting their substance); 5) legal representation (who provides it and what it entails); 6) translation of the documentation (quality of the translation as well as the time needed to do the work); 7) cost of the extradition process (essential in order to submit appropriate budget requests for the relevant authorities); 8) time required (usually years, this can become longer and more complex when an extraditable person’s legal defense employs dilatory tactics); 9) political components to evaluate in a bilateral relationship; and 10) the impact of the extradition process on the victims of the crimes that constitute de extraditable offenses.
In order to deal with all of these aspects, a joint effort is required from the different branches of power of the State, which can be a complex challenge on its own. For example, in Peru, the Office of the Public Prosecutor, the Judiciary, the Attorney General, the Ministry of Justice and Human Rights, and the Ministry of Foreign Affairs may all be involved in an extradition proceeding. Hence, the establishment of Central Authorities in various countries in charge of coordinating matters relating to extradition request, as it has been done in Peru, has been an important step, but there are aspects that go beyond their competence that need to be addressed if substantive changes are to be achieved with respect to the extradition system.
In the Inter-American system, there are bodies that have recently dealt with the topic of extradition within the framework of the fight against corruption in general, although without making specific reference to grand corruption. The Committee of Experts of the Follow-up Mechanism for the implementation of the Inter-American Convention against Corruption (MESICIC), in its current reporting format, contemplates that States must provide information about how they are implementing article XIII of the Convention, which regulates extradition (SG/MESICIC/doc.229/08.rev2). The reporting format, however, does not directly address the practical complexities referred to previously [ii].
Moreover, the Meetings of the Ministers of Justice or other Ministers or Attorneys General of the Americas (REMJA), have sought to be the technical and political fora that address international judicial cooperation in the region (REMJA-VII/doc.6/08rev.3, revised). Specifically, REMJA’s Working Group on Legal Cooperation in Criminal Matters was tasked with addressing extradition in order to make it a more efficient mechanism (OEA/Ser.6CP/CSH-1975). As a result, the Working Group initially analyzed the proposal submitted by the Delegation of Argentina for an “Inter-American Legal Instrument on Extradition” (PENAL/doc.43/18), but after its evaluation decided rather to follow the path of developing a “Model Law on Extradition” (PENAL/doc.44/18rev.1)[iii].
It is worth noting, that the open-ended Intergovernmental Working Group on Review of the Implementation of the UN Convention against Corruption has repeatedly encouraged to States Parties to simplify the pertinent procedures, in keeping with their domestic laws, and to adopt, among other things, appropriate measures to make extradition proceedings more effective (CAC/COSP/EG.1/2019/4).
Judicial cooperation in criminal matters, and, specifically, as far as it relates to extraditions in cases of corruption, has been benefited by the work developed in these fora, therefore it is also important to continue following the effective implementation, by States, of its measures and recommendations. However, there is room for additional and more ambitious improvements, especially on the subject of grand corruption, in order to simplify, homogenize and make more expeditious the extradition procedures; without, of course, jeopardizing the rights of extraditable persons.
*Diplomat and lawyer
**The views expressed herein are those of the author and do not necessarily reflect the views of the Ministry of Foreign Affairs of Peru. On the other hand, I would like to thank the people who generously collaborated with their ideas and suggestions during the drafting of the text.
[i] In the United Nations context, one can look to resolution A/RES/45/116 of 14 December 1990, which adopted the Model Treaty on Extradition as a reference for States to negotiate and conclude their own bilateral agreements on the subject (revised via resolution A/RES/52/88 of 12 December 1997).
[ii] The format makes reference to four elements: 1) identify if the Convention can be considered as the legal basis for the extradition of crimes addressed therein; 2) if an extradition request can be denied due to the nationality of the subject in question; 3) if the subject in question may be detained or if other means may be adopted in order to ensure their appearance; and 4) refer the objective results that have been obtained through the application of existing norms or other means of extradition with regard to the crimes included in the Convention.
[iii]The difference between an “Inter-American Legal Instrument on Extradition” and a “Model Law on Extradition” is quite substantive. While in the first case it would be an instrument with a vocation to become a treaty; in the second case, it could end up reaching the level of a recommendation within the framework of a resolution under the Inter-American system for States to adapt their domestic legislation to the provided for in the model law. It should be noted that, in 2004, a proposal for a Model Law on Extradition was developed under the work of the United Nations Office on Drugs and Crime. (https://www.unodc.org/documents/corruption/Publications/2017/Model_Law_Extradition_Spanish.pdf).