Ekstradicijos problemos: žmogaus teisės, atsisakymo tenkinti ekstradiciją pagrindai ir principas „ aut dedere aut judicare”

This work deals with the problems of extradition: human rights in the process of extradition, grounds for refusal of extradition end strengthening the principle aut dedere aut judicare in extradition. The introductory part, after a short extradition legal definition review, is devoted to argumentation of this subject in connection with the reality of Lithuania: presentation figures of surrendered Lithuanian citizens, display the cost from Lithuanian state budget for extradition of citizens. It is emphasized, that although there has been a long history of study and experiences in the field of extradition, however there is need in Lithuania for deeper study of particular issues on extradition : that is human rights questions in extradition, analysis of grounds for refusal. The main purpose of this work was, based on the studies of other authors, after comparative analysis of international conventions, international treaties including also analysis of Lithuanian Criminal Procedure Code, after review of the European Court of Human Rights practice, to what particular human rights arises threat to be violated or limited without sufficient ground in the extradition process. It is here that the concept of fundamental human rights has emerged and is gaining a widespread acceptance and this group of rights has been recognized as non-derogable in all universal and regional legal instruments. In the examination of grounds for refusal of extradition an attempt was also made to explore the origin of the grounds and the essence, to limit the possibility of the further growth of this list. This work purports to evaluate the ways and means of strengthening and improving of the mechanism of extradition. In the first part of this work the author pays attention end emphasizes, that in the requested state could be human rights violation after the extradition request is granted. However, following the European Court of Human Rights practice, the state responsibility arises only where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment. The author’s opinion is, that human rights of the requested person should be protected by taking in to account the human rights of others: the society, the victims of crimes. To proof this, analysis of various legal instruments have been performed in this assay. The author recognizes the tendency towards strengthening the position of individual in extradition, recognition him also as subject not only as object in the extradition process. However the coexistence between the interests, needs involved in the international cooperation in criminal matters, on the one hand, and the protection of human rights, o the other, should be sought and based on a reasonable compromise. That is very important today in concern with international terrorism threat. The human rights protection issues in this work has been analyzed from both civil law and common law countries positions. The author analyzes international human rights protection instruments seeking its connection and embodiment in the criminal laws of the Republic of Lithuania. The conclusion is, that those laws contain sufficient human rights protection mechanisms. The second part of assay deals with the grounds for refusal of extradition. It is supposed that traditional rules of extradition had been formulated in the previous centuries more to protect state sovereignty and interests and later after the Second World War have evolved into mechanisms of human rights protection. In the beginning of this part the author based on analysis of international conventions and treaties, publications on this subject has made attempt to classify the grounds for refusal of extradition. The length of the list is impressive therefore for further analysis has been selected only three of them: non-extradition of nationals, non-extradition for political crimes (definition of political crime) and the rule non bis in idem. The author doubts the rule of non-extradition of nationals although the prohibition of surrendering of nationals without a treaty is inserted in the Constitution of Lithuania. In the process, the following questions have been established: Whose interests are protected by this rule – the relator’s or the state?; What is the role of human rights considerations in maintaining this rule? Arises the question also what link should be between the person and the state: purely formal or material (substantive domicile, work, family). The arguments for this non-extradition of nationals are from the medieval times and now this rule is an obstacle for international legal co-operation. The position has been evaluated from both the civil and common law traditions. Further where the political offence exception or non-extradition for political crimes examination is carried out has been acknowledged the impossibility of one political crime definition. The author points out the different tendency – attempts to describe what particular crime could not be considered as political crime. Here is also presented a list of such acts, which are considered not as political. This has been done after an analysis of many relevant international conventions. For the evaluation of relative political crime it is suggested to use so called „Swiss test”. Given the history, development, and rationale of the rule, this work concludes that, traditional stance against the extradition of nationals has prevailed. Nowadays it is not possible to eliminate from extradition the rule of non-extradition of nationals. Extradition mostly is based on principles taken from the national criminal and criminal procedure laws of states. The rule non bis in idem is one of the major prerequisites of extradition. Although this principle is generally accepted in extradition, while analyzing non bis in idem rule in this work the author points out the differences in understanding of this rule in different legal systems. After analysis of different legal instruments have been concluded confirmation and necessity non bis in idem in the extradition. The examination and analysis of principle aut dedere aut judicare have been presented in the third part. While the world society does not have yet a complete criminal international justice system, this task lays now on national ones. It is understood by author that extradition is major weapon for the international society to effectively combat international crime, by surrendering accused and convicted persons escaping in other countries from justice. There is affirmation that, it would be unreasonable and intolerable if criminals could flee as a result of using grounds for refusal of extradition e. g. non-extradition of nationals, political offence exception etc. To fulfill these gaps the principle aut dedere aut judicare have to be employed where necessary and appropriate. There is recognition that, the principle has not gained the status of a norm of international customary law and could be applied where is clearly expressed in conventions other international legal instruments. The author deals also with the question – is whether both alternative embodied in aut dedere aut judicare are placed on equal footing. It is argued that extradite should be regarded as primary, with the duty to prosecute arising only if domestic law contains bar to extradition. If there no exist extradition treaty or applicable convention, remains only judicare. Have been proposed here also possible modifications of this principle. The requested state should be also allowed to fulfill its obligation under this rule by undertaking to enforce the final sentence imposed on the offender whose extradition was requested. As an example of the modification of this principle have been analyzed Lockerbie case. At the end of this work, based on examination, comparative analysis of relevant international conventions, treaties on extradition, studies of various publications on these issue, have been formulated conclusions.