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The Significance of the Requirement of Double Criminality in the Law of Extradition

Published online by Cambridge University Press:  12 February 2016

S. Z. Feller
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Extract

This was an appeal from a decision of the Tel-Aviv-Yafo District Court, declaring the appellant Ross to be liable to extradition on the Attorney General's petition presented at the request of the Government of the United States.

The appellant had been indicted before the Federal Court of the Eastern District of Louisiana on two charges, namely, transportation of a person in interstate and foreign commerce and receiving ransom money, in contravention of, respectively, secs. 1201 and 1202, chap. 18, para. 55, of the Federal Criminal Code. It was alleged that on August 21, 1972, the said Ross, being in possession of a revolver had kidnapped the two and a half year old Diana Cando Creon from her parents' home in the town of Pueblo (Mexico); that between that date and September 12 of the same year he had taken the child across international and interstate borders, from Mexico to the United States and, within the United States, from New Orleans, Louisiana to Biloxi, Mississippi; that he had illegally detained her throughout this period for the purpose of obtaining ransom, conducting negotiations to that effect with her father; and that he eventually succeeded in obtaining, in return for her release, the sum of U.S. $ 105,000—after which the little girl was found safe and sound in a hotel in Biloxi.

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Articles
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Israel Law Review , Volume 10 , Issue 1 , January 1975 , pp. 51 - 80
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1975

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References

1 These two provisions read as follows:

1201. Transportation

(a) Whoever knowingly transports in interstate or foreign commerce, any person who has been unlawfully seized, confined, inveigled, decoyed, kidnapped, abducted or carried away and held for ransom or reward or otherwise, except, in the case of a minor, by a parent thereof, shall be punished (1) by death if the kidnapped person has not been liberated unharmed, and if the verdict of the jury shall so recommend, or (2) by imprisonment for any term of years or for life, if the death penalty is not imposed.

(b) The failure to release the victim within twenty-four hours after he shall have been unlawfully seized, confined, inveigled, decoyed, kidnapped, abducted or carried away shall create a rebuttable presumption that such person has been transported in interstate or foreign commerce.

(c) If two or more persons conspire to violate this section and one or more of such persons do any overt act to effect the object of the conspiracy, each shall be punished as provided in subsection (a).

1202. Ransom Money

Whoever receives, possesses, or disposes of any money or other property, or any portion thereof, which has at any time been delivered as ransom or reward in connection with a violation of section 1201 of this title, knowing the same to be money or property which has been at any time delivered as such ransom or reward, shall be fined not more than $ 10,000 or imprisoned not more than ten years or both.

2 (1964) 13 K.A. no. 505, p. 795; hereinafter: the Extradition Convention.

3 6 L.S.I. 144; hereinafter: the Extradition Law.

4 Save for offences of a political character, which are excluded by sec. 2(2) of the Extradition Law itself, and with the restriction that extradition is to be refused if there exists a fear that the request for extradition arises from racial or religious discrimination or that its ultimate objective is the prosecution or punishment of the wanted person for an offence of a political character (sec. 10).

5 Sec. 21(1) of the Extradition Law authorized the Government of Israel to stipulate in an extradition convention with a foreign state “that only a part of the offences set out in the Schedule shall be extradition offences in relation to that State”; but it does not conversely allow any offences to be added to those listed in the Schedule.

6 Subject to a number of exceptions (enumerated in paragraph (a) (1) to (3) of the Schedule) and to certain additions (listed in paragraph (b) thereof).

7 See Article V of the Extradition Convention.

8 It will be noted that, by virtue of the rule of speciality, the requesting state undertakes not to impose upon the person extradited any criminal liability beyond that incurred for the offence for which extradition has been granted. The rule is also reflected in Article XIII of the Extradition Convention, which provides that “a person extradited shall not be detained, tried or punished in the territory of the requesting Party for any offence other than that for which extradition has been granted”. This is why Ross was so anxious to expunge the charge under sec. 1201 of the Federal Code, entailing a most severe penalty (cf. supra n. 1).

9 Moreover, Article V of the Extradition Convention is also based on the requirement of double criminality, in that it expressly provides that no person be extradited unless there be evidence sufficient to commit him for trial in the requested state, had the offence been perpetrated in that state.

10 For the distinction between the crime of conspiracy and the offence in respect of which it is committed, see Feller, S. Z., “With Regard to the Projection of the Provisions Relating to the Typical Form of the Offence or the Derivative Form Thereof” (1968) 24 Hapraklit 443.Google Scholar This categorization was adopted by Agranat, P. in Bashan v. State of Israel (1973) (II) 27 P.D. 141, at 150, distinguishing between “derivate” (as opposed to “main”) offences, for the purpose of defining conspiracy as a correlative and completed offence, and not as a derivative offence; so that it is possible to punish “an attempt to conspire” no less than any other attempt to commit a misdemeanour or a felony.

11 Not only is it necessary that an abduction precede the crime of transportation across an international or interstate border, but it may well occur that the perpetrator of the latter crime was not in the least involved in the perpetration of the abduction itself; while the receiver of stolen property must necessarily be some different person than the one guilty of the larceny.

12 Sec. 259 reads as follows:

Wrongfully concealing or keeping in confinement abducted person

259. Any person who, knowing that any person has been abducted, wrongfully conceals or confines such person, is guilty of a felony, and shall be punished in the same manner as if he had abducted such person with the same intention or knowledge, or for the same person purpose as that with or for which he conceals or detains such person in confinement.

13 We stated above…elements, some of which correspond inter alia also with the requirements of an offence laid down in sec. 259 of the Criminal Code Ordinance, 1936, since in the view of the Supreme Court the act of the person sought included facts which could give rise to other “extraditable” offences under Israel penal law.

14 As prescribed by Article X, para. 2, of the Extradition Convention.

15 The text of sec. 253 of the Criminal Code Ordinance, 1936 reads as follows:

Definition of abduction from lawful guardianship

253. Any person who takes or entices any minor under fourteen years of age if a male, or under sixteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to abduct such minor or person from lawful guardianship.

16 The text of sec. 188 reads as follows:

Child stealing

188. Any person who, with intent to deprive any parent, guardian or other person who has the lawful care or charge of a child under the age of fourteen years, of the possession of such child —

(a) forcibly or fraudulently takes or entices away, or detains the child; or

(b) receives or harbours the child, knowing it to have been so taken or enticed away or detained;

is guilty of a felony, and is liable to imprisonment for seven years.

17 The rule is expressed in sec. 24 of the Extradition Law and has also been embodied In Article XIII of the Extradition Convention. Cf. supra n. 8.

18 The nexus in personam will readily appear in that the fact complained of is indeed imputed to the person sought. We shall therefore consider mainly the charge in rem.

19 See Bassiouni, Cherif, “Two Models of Extradition in Law and Practice” in A Treatise on International Criminal Law edited by Bassiouni, and Nanda, , (Charles C. Thomas, Springfield, I11. 1973) vol. 2, p. 358.Google Scholar As to the question which law should determine whether an act constitutes an extradition offence, this author, on the basis of American precedents, believes that “the substantive law applied is that of the state where the fugitive is found”.

20 See the opinion of H. Cohn J. in Ross at p. 372; and cf. the Extradition Convention, Article X, para. 2.

21 The first of the acts imputed to Ross—as related at p. 366—comprised the following elements, viz. knowingly transporting across international and interstate borders within the U.S. from New Orleans in the eastern district of Louisiana to Biloxi, Mississippi the child named Diana Cando Creon who had been unlawfully seized, confined, inveigled, decoyed, kidnapped, abducted and carried away by Steven Ivan Ross and held for ransom. Two of all these elements would have been sufficient to give rise to the offence of false imprisonment under sec. 259 of the Israeli Criminal Code Ordinance, viz. knowledge of the child having been abducted (by whatever person) and unlawfully detaining her (independently of any interstate transportation or of any intention to obtain ransom money).

22 Following the example of the algebraic formula used by Landau, J. in Nacht v. A.G. (1957) 11 P.D. 1544.Google Scholar

23 It will be noted that no account can here be taken of state legislation, but only of federal statutes.

24 It will be remembered that foreign law is treated as a fact, which must be proved by the party seeking to rely on it.

25 See Feller, S. Z., “On the Retroactivity of Extradition Laws and the Effects of Amnesty upon Extradition” (1972) 4 Mishpatim 403–419Google Scholar; id., “More on the Effect of Amnesty upon Extradition” (1974) 5 Mishpatim 263–283; and cf. H. Grützner, “International Judicial Assistance and Cooperation in Criminal Matters” in A Treatise on International Law (cit. supra n. 19) vol. 2, pp. 189, 219.

26 Extradition Convention, Article II, item 9 (Hebrew version).

27 As being the sui generis federal type of the crime of kidnapping.

28 We call “active extradition” the proceeding initiated by the requesting state, interested in its implementation; while “passive extradition” includes all the steps taken by the requested state for the delivery of the wanted person to the requesting state.

29 See Art. 11(a) of the Universal Declaration of Human Rights, 1948.

30 By virtue of sec. 14 of the Interpretation Ordinance (in its New Version of 1954)

(b) Where any enactment repeals any law, such repeal shall not, unless the contrary intention appears —

…‥

(4) affect any penalty, forfeiture, or punishment, incurred in respect of any offence committed against the law so repealed…

31 There are grounds for this approach only in respect of offences in violation of emergency regulations which have a transitory character and so may be given ultra-active effect with a view to discouraging prospective offenders who may hope that the criminality of their behaviour will have been removed by the time their trial takes place.

32 See on this point Feller, S. Z., “Jurisdiction Over Offences with a Foreign Element” in A Treatise on International Criminal Law (cit. supra n. 19) vol. 2, pp. 19–48.Google Scholar

33 Heckstetter v. State of Israel (1972) (I) 26 P.D. 241.

34 Cit. at p. 245.

35 Ibid.

36 See the survey of Oehler, D. in (1968) Revue Internationale de Droit Pénal 401.Google Scholar

37 Dussaix, Roger, Problems Arising from the Practical Application of the European Convention of Mutual Assistance in Criminal Matters (Council of Europe, Strasbourg, 1971) 44Google Scholar: “Since these particular measures involve coercion and interfere with individual rights and constitutional freedoms, no State could allow such methods to be used more freely in the service of a foreign country's criminal justice than in that of its own”. In the vein, same, Prof.Hulsman, M. L. H., in the Survey on Crime Problem (September, 1971) 7Google Scholar, prepared by the European Committee remarks: “The aim of a common criminal policy should be to ensure that an individual who has committed an offence with international aspects does not find himself at a disadvantage in relation to the machinery of justice as compared with a person who has committed or is accused of having committed an offence which has no such international aspects”. See also Schultz, H., “Rapport général provisoire sur la Question IV pour le Xe Congres International de Droit Pénal” (1968) Revue International de Droit Pénal 804.Google Scholar

38 Clause III of the Convention reads:

When the offence has been committed outside the territorial jurisdiction of the requesting Party, extradition need not be granted unless the laws of the requested Party provide for the punishment of such an offense committedin similar circumstances.

The words “territorial jurisdiction” as used in this Article and in Article I of the present Convention mean: territory, including territorial waters, and the airspace thereover, belonging to or under the control of one of the Contracting Parties or to a citizen or corporation thereof when such vessel is on the high seas or such aircraft is over the high seas.

39 Here is the text of Aritele 7(2) of the Convention:

When the offence for which extradition is requested has been committed outside the territory of the requesting Party, extradition may only be refused if the law of the requested Party does not allow prosecution for the same category of offence when committed outside the latter Party's territory or does not allow extradition for the offence concerned.

The French Extradition Law, sec. 3, takes the same stand.

40 Cf. Feller, S. Z., “More on the Effect of Amnesty upon Extradition” (1974) 5 Mishpatim 263–283.Google Scholar

41 Some of them are explicitly mentioned in sec. 8 of the Extradition Law and in Article VI of the Extradition Convention.

42 On the impact of amnesty on extradition, see our articles cited supra n. 23.

43 But it goes without saying that the onus of proof is not the same in respect of criminality in abstracto and in concreto; even at the criminal trial itself, in the absence of any provision to the contrary, the burden of adducing evidence in regard to any plea tending to negate the criminality of the act lies with the defendant, and such evidence must create a reasonable doubt as to guilt.

44 Save in the few cases where the victim of an offence is allowed to initiate a criminal action; and even this right of “private complaint” is subject to that of the District Attorney to take over the conduct of the prosecution (sec. 65 of the Criminal Procedure Law, 1965.

45 See Criminal Procedure Law, 1965, secs. 53, 56 and 202 (19 L.S.I. 158).

46 For example, in sec. 8.

47 For example, in Article VI.

48 Here is the full text of Chap. IV of the Conclusions relating to “Current Problems Concerning Extradition”:

1. In general the necessity of “double incrimination” should be retained as a condition of the obligation to effect extradition.

2. The requested State may however dispense with this condition whenever particular conditions in the requesting State justify this and public policy (ordre public) in the requested State does not stand in the way.

3. It is therefore obvious that the act, in order to legitimate the extradition must be punishable in concreto in the requesting State.

4. (a) In may be held sufficient to warrant extradition that the act with which the offender is charged is punishable in abstracto according to the law of the requested State. Application for extradition may however be rejected when there exist obvious reasons justifying the act or when the offender is not punishableexcept where, in the latter case, extradition is sought in order to carry out a measure of security or of re-education.

(b) It should be irrelevant for the purpose of extradition whether the act charged is punishable, according to the law of the requested State, only following a complaint of the offended party.

(c) Any amnesty declared by the requested State and any time-barring of action under the law of that State should be both irrelevant to extradition except where the Courts of the requested State have jurisdiction on other grounds to try the incriminated act.

49 See Criminal Procedure Law, 1965, secs. 7 and 8.

50 On this point see Feller, S. Z., “On the Retroactivity of Extradition Laws and the Effects of Amnesty upon Extradition” (1972) 4 Mishpatim 403Google Scholar at 418; and also Feller, S. Z., “More on the Effect of Amnesty upon Extradition” (1974) 5 Mishpatim 263–283.Google Scholar

51 See the first article quoted in the preceding note at pp. 410–11, where it is explained that when pardon has been granted to the wanted person, his position is that of a person who has been fully tried in the requested state and convicted of the offence for which extradition is sought: this in itself renders request for extradition inadmissible, by virtue of sec. 8(1) of the Extradition Law and its parallel provision, Article VI (1) of the Extradition Convention which reads: “Extradition shall not be granted in any of the following circumstances: 1. When the person whose surrender is sought is being proceeded against, or has been tried and discharged or punished, in the territory of the requested Party for the offense for which his extradition is requested”.

52 S. Z. Feller, loc. cit., at p. 413 ff.

53 Such a provision would be utterly superfluous in respect of the requesting State, notwithstanding the provisions of Article VI(3) of the Extradition Convention and sec. 8 (3) of the Extradition Law, for if either the action or the penalty is barred by limitation, there remains nothing to justify the request for extradition, whose sole object is to enforce the prosecution of the person sought or the execution of his punishment.

54 This provision would also be superfluous, notwithstanding sec. 8(3) of the Extradition Law, for the same reason as given in the preceding note, since the extinction of the requesting state's right to punishdeprives it of its consequential right to demand extradition, so far as the elements included in the amnesty are concerned.

55 See Donnedieu de Vabres, H., Les Principes Modernes du Droit International Pénal (Paris, 1928) 248–9.Google Scholar

56 In Belgium (1833), U.S.A. (1848), England (1870), the Netherlands (1875), Argentina (1885), Japan (1889), Switzerland (1892), Peru (1906), Norway (1907), Brazil (1911), Sweden (1913), Finland (1922), France (1927), Germany (1929), Italy (1930), Roumania (1937), etc.

57 The nature of a legal institution depends upon its characteristic features, which determine its place among the many other institutions of the legal system considered and its distinctive functions.

58 This is the reason for excluding from extradition political offences; military offences; offences in which the accusation arises from racial or religious discrimination or from the suspicion that it aims at prosecuting or punishing for an offence of a political character, offenders whose gravity falls below a given level. (Extradition Law. secs. 2(2) 10 and the Schedule, para, (a)(1)).

59 See Heckstatter v. State of Israel (1972) (I) 26 P.D. 241, at 245 per H. Cohn J.

60 That is why H. Cohn J. was reluctant to define the nature of extradition as a criminal proceeding (see his opinion in Ross at p. 372, and also in the Heckstatter case at p. 245); even though the punishment is not, properly speaking, the consequence of the proceedings but of the crime.

61 This does not give rise to any conflict between extradition and various other criminal proceedings, nor is there any ground to refrain from including extradition in the category of criminal process. Cf. preceding note.

62 On this point see Shearer, I. A., Extradition in International Law (Oceana Publications, 1971), 137.Google Scholar

63 Heckstatter v. State of Israel (1972) (I) 26 P.D. 241 at 245.