Extradition is the surrender by a state to a country requesting the surrender of a person suspected or convicted of committing a crime outside the territory of the surrender and within the jurisdiction of the state of the country requesting the surrender because of the authority to prosecute and convict him (Law Number 1 of 1979 about Extradition).
The term extradition or extradition comes from the Latin language extradition . Ex means outward, while Tradere means giving or handing over. Whereas in English, the word extradition means submission.
The oldest treaty that addresses the issue of extradition is a peace treaty between King Rameses II of Egypt and Hattusili II of Kheta which was made in 1279 BC. It contained both parties pledging mutual promises to hand over perpetrators of crimes who had fled or were found within the territory of the other party (Nusbaum, 1969).
Some international conventions that can be used as a legal basis for perpetrators of crimes according to the provisions of extradition include; the 1963 Tokyo convention, the 1970 Hague convention, the 1971 Montreal convention, the 1971 convention on drugs, and others.
The following definition and definition of extradition from several book sources:
- According to Parthiana (2004), extradition is a formal surrender, either based on a pre-existing extradition treaty, or based on principles of reciprocity or good relations, or someone accused of a crime (suspect, accused, accused) or someone who has sentenced to a criminal who has definite binding power (convicted, convicted), by the country where he is located (the requested country) to the state that has jurisdiction to try or punish him (the requesting country) at the request of the requesting country, with the aim to try and or execution of his sentence.
- According to Kansil (2002), extradition is the transfer of a person from one country to another country by force to be brought before a court of law or sentenced to prison for a crime that arises if someone is accused or has been sentenced to seek protection (or at that time residing) in another country.
- According to Budiarto (1980), extradition is a process of handing over a suspect or convicted person for having committed a crime committed formally by one country to another country that is authorized to examine and prosecute the perpetrators of the crime.
Elements of Extradition
According to Parthiana (2004), there are several elements in extradition law, namely as follows:
a. Subject element
- The state or countries that have jurisdiction to try or punish are very interested in getting that person back to be tried or punished for the crime he has committed. To get back the person in question the country or countries must submit a request for surrender to the country where the person is located or hiding. These countries or countries have the status of the requesting party or are briefly called the Requesting State.
- The country where the perpetrator (the suspect, the accused) or the convict is hiding. This country is requested by the state or countries that have jurisdiction or requesting countries, to surrender people who are in that region (suspect or convicted), which can briefly be called the requested-state (The Rewuested State).
b. Object element
Namely the perpetrators of the crimes themselves (suspects, accused, defendants or convicted) requested by the requesting countries to be requested by those countries to be submitted. He is what is simply called the requested person. Even though he is only an object which is the main problem between the two parties, but as a human being he must continue to be treated as a legal subject with all his rights and obligations, which must not be violated by anyone.
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c. Elements of procedure or procedure
This element covers the procedure for submitting a request for submission as well as the procedure for submitting or rejecting the surrender itself and all matters related to it. Submission can only be done if there was previously submitted a request to submit by the requesting country to the requested country. The request must be based on a pre-existing extradition agreement between the two parties or if the agreement does not yet exist, it can also be based on the agreed upon principle of reciprocity.
d. Element of purpose
Namely for what the person concerned is asked for surrender or submission. The surrender is requested by the requesting state to the requested country because it has committed a crime which is the jurisdiction of the requesting country / countries. Or he fled to the state-requested after being sentenced that has had definite binding power. To be able to try or punish the person concerned, the requesting country then submits a request for surrender of the person to the requested country.
Types of Extradition
According to Damaian (1991), there are three types of extradition systems, namely as follows:
- Extradition list system (list system / enumerative system) , which is a system that contains in the agreement a list that lists one by one which crimes can be extradited. Example: An Extradition Agreement between Britain and the United States of 1969, in Article 3 specifies 27 types of crimes or criminal offenses.
- Extradition system without a list system (eliminative system) , which is a system that only uses the maximum sentence or minimum sentence as a measure to apply whether a crime can be submitted or not without mentioning one by one the name of offense that can be extradited. Example: Extradition Agreement between Italy and Panama 1930 stipulates a minimum of 2 years.
- Extradition of a mixed system , which is a mixture of enumerative extradition and eliminative extradition and also includes crimes with minimum and maximum sentences that can be extradited. Example: An Extradition Agreement between Indonesia and the Philippines in 1976 in article II A.
Principles of Extradition Law
According to Parthiana (2004), there are general recognized principles of extradition, as follows:
a. Principle of Double Criminality (Double Criminality Principle)
This principle requires that crimes that can be used as an excuse in requests for extradition of the person requested are crimes that have been punished by both the criminal law of the requesting country or the law of the requested country. This can occur because an action or event may be a criminal event or a crime according to the legal system of a particular country, whereas according to the legal system of another country it is not seen as a criminal event. There is a difference in evaluating an action or event. The difference in judgment also carries the effect of the different evaluation of the perpetrator of the act or event.
b. Principle of Specificity
This principle requires the requesting state to only prosecute, prosecute and punish the person requested based on the crime that is used as an excuse to request the surrender of his extradition. So he must not be tried, and or convicted of other crimes, other than those which are used as reasons to request his extradition. The principle of specificity can only function if the person requested has been extradited by the state requested to the requesting country. This means, the request of the requesting state to extradite the requested person is granted by the requested country.
c. Principle Not to Submit Citizens (Non-Extradition of Nationals)
This principle basically gives power to states not to surrender their own citizens who commit crimes within the territory of other countries. If the person requested by the requesting state is found to be a citizen of the requested country, the requested country has the right to reject the request for extradition from the requesting country. This is based on the idea that the state is obliged to protect every citizen and citizens also have the right to get protection from their home country. But the refusal does not mean erasing the citizens’ mistakes. These citizens must be tried and punished by the state requested under their national law.
d. Principle Does Not Turn Over Non-Extradition of Political Criminals
This principle began in the 18th century, which showed that what could be surrendered was only political criminals and troops who carried out acts of desertion. If the requested state is of the opinion that the crime which is used as an excuse for requesting extradition by the requesting state is classified as a political crime, then the requested state must reject the request. This is because political crime is subjective and the definition of political crime that generally applies to international law also does not exist. A crime is classified as a political crime or not is indeed a political problem based on political considerations which are of course very subjective.
e. The principle of ne / non bis in idem
According to this principle, if the crime which is used as an excuse for requesting extradition of the person requested has been tried and / or has been sentenced to have binding legal force, the requested country must refuse the request from the requesting state. This principle provides a guarantee of legal certainty for people who have been sentenced by a court that has definite binding power, whether the verdict is a decision of acquittal or release from criminal prosecution or a verdict in the form of punishment against him.
f. Expiration Principle
This principle is also known as the principle of lapse (time). This principle states that a person cannot be handed over by the requested state to the requesting state because the right to sue or the right to carry out a criminal decision has expired or is over time according to the law of one or the law of both parties. The purpose of this recognized expiration is to provide legal certainty guarantees for all parties. That a fact that has happened so long and has never been disputed during that time period, is seen as something that has passed and therefore cannot be brought up again.