International Extradition Weekly Recap 12-30-05

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Extradition from Canada to Thailand—Rakesh Saxena

Thai authorities are attempting to have Indian-born Rakesh Saxena extradited from Canada to Thailand “to stand trial for his alleged role in the [Bangkok Bank of Commerce] failure.”^[1] A Bangkok criminal court recently returned verdicts against former bank president Krirkkiat Jalichandra and three other bank officials for colluding with Mr. Saxena in cheating the bank, which led to its collapse just before Thailand’s mid-1997 financial crisis.^[2] Thailand will now submit that verdict to a Canadian court in Vancouver.^[3]

Mr. Saxena fled Thailand in 1996, and has been living under self-financed house arrest in Vancouver.^[4] In 2000, a lower court in Canada ruled that Mr. Saxena should be extradited to Thailand, but the process has been delayed; Canada did not endorse the extradition until November 2003, and Mr. Saxena has appealed the ruling.^[5]

Extradition from Canada to Thailand is conducted under the extradition treaty between Great Britain and Siam.^[6] Under the terms of the treaty, extradition is allowed for embezzlement^[7] and fraud,^[8] as well as participating in schemes to do either.^[9] If Mr. Saxena had already been put to trial in Thailand for the crime for which extradition has been sought, Canada would not be able to extradite him.^[10] However, the information that has been forwarded from Thailand to Canada concerning Mr. Jalichandra and the others does not contain verdicts against Mr. Saxena, so that particular aspect should not be a bar to extradition. Instead, the information is meant to supplement the evidence provided by Thailand already, as the request for extradition “must be accompanied by a warrant of arrest issued by the competent authority of the State requiring the extradition, and by such evidence as, according to the laws of the place where the accused is found, would justify his arrest if the crime had been committed there.”^[11]

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[1] Thailand to Appeal to Canadian Court for Indian’s Extradition, Rediff.com, Dec. 30, 2005.
[2] Id. See also, Court Sentences Ex-Bank Head to a 20-year Jail Term, Bangkok Post, Dec. 28, 2005; Court Sentences Ex-Bank Head to 20-Years Jail, US$472 million Fine, Thai News Agency, Dec. 28, 2005.
[3] Rediff.com, supra note 1.
[4] Id.
[5] Id.
[6] Extradition Treaty, Mar. 4, 1911, U.K.-Siam, B.T.S. 1911/23 (U.K.).
[7] Id. art. II, para. 7.
[8] Id. art. II, para. 9.
[9] Id. art. II.
[10] Id. art. IV.
[11] Id. art. VII.

Extradition from Switzerland to the United States—Yevgeny Adamov

Continuing a story we have been following since August 15, the international extradition case of former Russian nuclear minister Yevgeny Adamov has taken a rather unexpected turn. Mr. Adamov, if you recall, is wanted in Pennsylvania for alleged money laundering violations, but he accepted simplified extradition to Russia. However, since he was the subject of competing extradition requests from both the United States and Russia, the Swiss judge hearing the case decided to weigh both requests and, on October 3, determined that Mr. Adamov should be sent to the United States, stating that the US should get to prosecute Mr. Adamov first and then extradite him to Russia to stand trial there.

Today, however, comes news that Mr. Adamov will be extradited to Russia instead.^[1] By the unanimous vote of five judges, the decision by l’Office fédéral de la justice was overturned.^[2] The decision was made based on the timing of the competing extradition requests, the disposition of applicable public international law, the determination of where the “center of gravity” of the alleged crime took place, and Mr. Adamov’s nationality.^[3] Furthermore, the court ruled that the US extradition request was not valid under Swiss law “because the alleged crimes would have been committed by a foreign functionary in a foreign fiscal system.”^[4] Under Swiss law, the court said, “extradition for prosecution in the United States would only be permitted … if it were in tandem with a Russian case, and even then any Russian prosecution would still take priority.”^[5]

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[1] See Yekaterina Andrianova, Switzerland to Extradite Russian Ex-Minister Shortly—Swiss Official, RIA Novosti, Dec. 29, 2005; Russian in US Extradition U-Turn, BBCNews, Dec. 29, 2005; Swiss Federal Court Orders Adamov’s Extradition to Russia, Itar-Tass, Dec. 29, 2005; Atomic Energy Agency Welcomes Adamov Extradition (Part 2), Interfax, Dec. 29, 2005; Ex-Nuke Minister For Extradition, CNN.Com, Dec. 29, 2005; Peter Finn, Swiss Court Extradites Former Nuclear Head Back to Russia, Wash. Post, Dec. 29, 2005.
[2] Tribunal Fédéral, Communiqués de presse: Arrêt Adamov, 1A.288/2005 du 22 décembre 2005; L’ancien minister russe de l’énergie atomique Evgeny Adamov sera extrude vers la Russie, Dec. 29, 2005.
[3] Id; see also Urs-Peter Inderbitzin, Swiss Court Rules Russian Ex-Nuke Minister Sent Home, Not U.S., Associated Press (via Times-Leader), Dec. 29, 2005.
[4] Inderbitzin, supra note 3.
[5] Id.

Extradition from the United States to Bosnia—Muhamed Sacirbey

The former Bosnian ambassador to the United Nations, Muhamed Sacirbey, is currently facing extradition from the United States to Bosnia.^[1] Bosnian authorities allege that Mr. Sacirbey, who became a US citizen in 1973, stole more than US$1.8 million from Bosnia’s Investment Fund Ministry and US$610,980 from Bosnia’s mission to the United Nations.^[2]

There is apparently one problem: Bosnia may not have actually formally charged Mr. Sacirbey with any crime.^[3] Mr. Sacirbey is challenging an extradition ruling made earlier this year when a Magistrate Judge in New York ordered his extradition citing probable cause.^[4] However, he argues that by the terms of the treaty, extradition can be ordered only when he has been charged with or convicted of a crime.^[5] Assistant US Attorney Anjan Sahni, however, “said Bosnia has promised the case will proceed once Sacirbey is extradited and that it is enough that officials have demonstrated an intent to prosecute.”^[6]

Mr. Sacirbey’s attorney cites a “1901 treaty” with Bosnia, but there is no extradition treaty with Bosnia, per se. The State Department’s Treaties in Force 2005 states that a person looking for any agreements made before Bosnia’s independence from Yugoslavia, should look to Yugoslavia instead. ^[7] As the State Department notes “Yugoslavia has dissolved. … The status of the agreements [made prior to dissolution] is under review.”^[8] There is a 1901 treaty with Yugoslavia, and it presumably is still in effect, unless the US government determines that it is no longer applicable.

Under Article I of the extradition treaty between the United States and Yugoslavia, the governments of the two countries “mutually agree to deliver up persons who, having been charged or convicted of any of the crimes and offenses specified” in the treaty, is found in the territory of the countries.^[9] Extradition “shall only be done upon such evidence of criminality as, according to the laws of the place where the … person so charged shall be found, would justify his or her apprehension and commitment for trial if the crime or offense had been committed there.”^[10] Embezzlement is an enumerated offense in the laundry list of offenses contained in the treaty.^[11]

The treaty does not provide however, for extradition based on assurances or demonstrations of intent to prosecute. In fact, Article III states the documentary requirements for extradition in only two circumstances: when the person has been convicted—in which case a “duly authenticated copy of the sentence” must be provided; or when the person is “merely charged”—in which case a “duly authenticated copy of the warrant of arrest in the country where the crime has been committed, and of the depositions or other evidence upon which such warrant was issued” must be presented.^[12]

The final consideration is that neither country is compelled or obligated to extradite its own citizens.^[13] Of course, as we have discussed before, the US routinely extradites its own citizens, as evidenced by the Magistrate Judge’s willingness to have Mr. Sacirbey extradited.

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[1] Larry Neumeister, Judge Considers Extradition of Sacirbey, Associated Press, Dec. 28, 2005.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Department of State, Treaties in Force 2005—Bosnia-Herzegovina, Jan 1. 2005. (PDF)
[8] Id., Yugoslavia. (PDF)
[9] Extradition Treaty, Oct. 25, 1901, U.S-Yugo., art. I, 32 Stat. 1890, 12 Bevans 1238.
[10] Id.
[11] Id. art. II, para. 6.
[12] Id. art. III.
[13] Id. art. V.

Extradition from the United States to the Philippines—US Marines

Four US Marines have been charged with the November rape of a 22-year-old woman in the Philippines.^[1] The prosecution is seen as a critical test of the Visiting Forces Agreement [hereinafter VFA] “which allows American forces to conduct counterterrorism training exercises with Filipino troops.”^[2] According to Philippines Justice Secretary Raul Gonzales, the impression that he has from a statement issued by the US embassy is that American officials “will insist on custody during the trial.”^[3] The Philippines had requested custody of the four Marines in mid-November, which has not been met with a response; Secretary Gonzales, however thinks that “the picture has somehow changed with the indictment… You now have the court to reckon with.”^[4]

Under the VFA, the US can keep custody of its military personnel until judicial proceedings are completed, but the individuals must be made available for court appearances.^[5] The Philippines can ask for custody in extraordinary circumstances, but Secretary Gonzales has said “I suppose they will politely reject our request and if we are not satisfied, we can insist on negotiating on custody.”^[6] The Philippines would like custody because it is feared that if the servicemen leave the service, the military will no longer control them.^[7] If that were to happen, and if the individuals were to “flee to the US, extradition would be difficult and expensive.”^[8]

VFAs are somewhat controversial. In mid-August, we noted that Colombian Senators were feeling frustration about the VFA in place there, because it shielded American soldiers from criminal prosecution.^[9] The VFA between the US and the Philippines was signed in 1998, and it provides that “Philippine authorities shall have jurisdiction over United States personnel with respect to offenses committed within the Philippines and punishable under the law of the Philippines.”^[10] Furthermore, if an offense is a crime in the Philippines, but not the US, then “Philippine authorities exercise exclusive jurisdiction” over US personnel for those offenses.^[11] Likewise, if an offense is a crime in the US, but not in the Philippines, US authorities will exercise exclusive jurisdiction in such circumstances.”^[12]

In the event that the servicemen make it back to the United States, extradition will be controlled by the extradition treaty with the Philippines. Under article 2 of the treaty, rape would be considered an extraditable offense because both countries make it a crime punishable by more than one year in prison.^[13] However, as we have seen with Spain’s extradition request for 13 soldiers for allegedly killing a Spanish journalist, extradition of military personnel is not something the United States is often willing to allow.

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[1] Philippines Charges 4 U.S. Marines With Rape, Washington Post, Dec. 28, 2005.
[2] Id.
[3] Custody Battle Looms Over US Marines Accused of Rape, Associated Press (via Sun Star), Dec. 29, 2005.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] See Agreement Concerning an Army Mission, a Naval Mission, and an Air Force Mission of the United States Armed Forces in Colombia, Oct. 7, 1974, U.S.-Colom., 29 U.S.T. 2901.
[10] Agreement Regarding The Treatment Of United States Armed Forces Visiting The Philippines, Feb. 10, 1998, U.S.-Phil., art. V, para. 1(a), TIAS.
[11] Id. art. V, para. 2(s).
[12] Id. art. V, para. 2(b).
[13] Extradition Treaty, Nov. 13, 1994, U.S.-Phil., art. 2, para. 1, S. Treaty Doc. No. 104-16 (1996).

Extradition from the United States to Ecuador—Cabrera

The son and daughter of a man accused of being the head of a huge Ecuadorian pyramid scheme are the subject of an expected extradition request from Ecuador.^[1] The two denied that their father, Jose Cabrera, was involved in any illegal dealings last month and promised to sort out any problems; they disappeared last month as arrest warrants were issued for them.^[2] They are believed to be in the United States and extradition requests are being prepared for the siblings.^[3] Jose Cabrera was the former president of Ecuador’s national association of notary publics, and his death has sent shockwaves through Ecuador’s society.^[4] He was found dead in a luxury hotel room, leaving behind a teenage girlfriend who said that Mr. Cabrera had been on cocaine and Viagra, as well as leaving behind an US$800 million pyramid scheme that involved thousands of people who gave him a minimum of US$10,000 each over two decades in exchange for up to 10 percent monthly interest.^[5] The “investors” even dug up Mr. Cabrera’s grave to ensure that he had truly died and not simply faked his death.^[6]

Extradition from the United States to Ecuador is governed by the terms of the 1872 extradition treaty and the supplement signed in 1939. The treaty states that there are only 6 crimes for which extradition is available,^[7] but the laundry list was expanded to a total of 21 with the signing of the supplement.^[8] If Mr. Cabrera’s children were part of the pyramid scheme, they could be extradited to Ecuador because “obtaining money … by false pretenses, or receiving any money … knowing the same to have been unlawfully obtained,” is an extraditable offense.^[9] In addition, being a conspirator or an accomplice to an offense listed in the supplement is grounds for extradition as well.^[10]

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[1] Jeanneth Valdivieso, Thousands Stung by Ecuador Pyramid Scheme, Associated Press (via Houston Chronicle), Dec. 27, 2005.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id,
[7] Extradition Treaty, Jun. 28, 1972, U.S.-Ecuador, art. 2, 7 Bevans 321.
[8] Supplementing Treaty, Sep. 22, 1939, U.S.-Ecuador, art. 1, 7 Bevans 346.
[9] Supplement, art. 1, para. 15.
[10] Id. art. 1.