Extradition is the act of officially sending an accused or a convicted person by a State, on whose territory the alleged criminal is situated, to another State for such individual to be tried or serve the sentence. In other words, extradition is the formal surrender by one State to another of an offender who is accused or convicted of a serious criminal offence committed within the jurisdiction of that other State.
Extradition is not obligatory upon States. Nonetheless, there is a common interest between States to give mutual assistance for the suppression of crime. In fact, several international treaties have been entered into between States to assist in regulating this understanding, such as the European Arrest Warrant (EAW). Local legislation has also been enacted to facilitate the implementation of the extradition. In fact, in Malta extradition is regulated by the Extradition Act, Chapter 276 of the Laws of Malta. Nevertheless, there are limitations and safeguards imposed when instituting extradition.
1. The Double Criminality Rule
Firstly, double criminality. Extradition may not take place if the offence for which extradition is being requested is not an offence in both the requested and the requesting State. A state cannot restrict individual freedom for the purposes of extradition unless the requesting country produces sufficient prima facie evidence to justify the juridical proceedings. This is the double criminality rule which is provided for in Article 5 of the Extradition Act (1)(b) and (2).
2. The Speciality Rule
Secondly, the specialty rule. This rule of specialty imposes on the requesting State that the offender is tried only for the offence for which extradition is granted. However, there are exceptions to this rule which are laid down in Article10(1) of the Extradition Act specifically referring to those offence that are of a political and discriminatory nature.
3. Ne bis in Idem – The Double Jeopardy Rule
Thirdly, the double jeopardy rule, frequently referred to as ne bis in idem. This rule states that no person can be tried twice for the same offence. This is also regulated in Article 10(2) of the Extradition Act Chapter 261 of the Laws of Malta:
(2) A person accused of an offence shall not be returned under this Act to any country, or committed to or kept in custody for the purpose of such return, if it appears as aforesaid that if charged with that offence in Malta he would be entitled to be acquitted under any rule of law relating to previous acquittal or conviction.
The rule precisely states that if the offender is charged in Malta, but there was a previous acquittal/conviction then there is no extradition. This is further reiterated under our Criminal Code, Chapter 9 of the Laws of Malta, for domestic criminal prosecution in Article 527.
4. Prescription
Fourthly, the prescription. When an offence under which extradition is being sought is time-barred under the Laws of the requesting State, then extradition cannot be executed. This is a widely agreed upon limitation which is also regulated by the Maltese Extradition Act which in turn is modelled on the European Convention on Extradition under Article 11(2)(d) of the Act. There is an exception to the institute of prescription, since it is at the Minister’ discretion to refuse extradition based on prescription, not the courts.
5. Amnesty or Pardon
Lastly, amnesty or pardon. This limitation, like the ne bis in idem rule, has the effect of extinguishing the act itself. If the requesting country pardons the offender of the offence, then the purpose of extradition is extinguished. Hence, if the person is pardoned in the requested state, then the criminal nature of the act is extinguished and there is no double criminality rule and thus no extradition will take place.
