Extradition Laws and Rights

Extradition - Sharon Nahari

On Extradition Laws and the Rights of the Person Requested for Extradition

When an Israeli citizen is suspected of having committed a criminal offense in a foreign country and is requested to be prosecuted there and/or sentenced there (hereinafter: “requested for extradition”) – the State of Israel may be asked to extradite him to that country. And vice versa, there may also be a situation in which an Israeli citizen resides in a foreign country, and the State of Israel requests his extradition to it.

But the extradition of a person from Israel to a foreign country or from a foreign country to Israel is not a simple matter and has far-reaching consequences for the person seeking extradition. Thus and for the sake of parable, the extradited person will be cut off from his family and friends, and will be forced to stay for a long time, even for many years, in a foreign country, where culture is different, language is different, and above all incarceration conditions. It is therefore highly recommended that you consult a criminal lawyer who deals with extradition law.

See for example the case of the hacker “Alexei Borkov”, in whose case two extradition requests were submitted: one from the United States and the other from the Russian Federation. Finally, it was decided to extradite him to the United States, among other things, his claim that his extradition to the United States should be conditioned on being promised to return to the Russian Federation to carry the prison sentence that would be imposed on him was rejected since presenting such a condition has implications for Israel’s foreign relations (HCJ 7272/19 Alexei Borkov v. Minister of Justice Nevo (10.11.2019).

The question therefore arises, what are the necessary conditions for extradition?

Section 2A of the Extradition Law (1954) (hereinafter: “the Extradition Law”), provides that a person may be extradited from the State of Israel to another state, provided that two cumulative conditions are met:1 – Existence of an agreement regarding the extradition of criminals between the State of Israel and the requesting state. 2 – The person seeking extradition is accused or will be legally liable in the requesting country for the offense of extradition.

In this regard, it is important to note that according to section 2A (c) (2) of the Extradition Law, a person may be extradited by concluding a special extradition agreement, which is specific and unique to the extradition requestor. That is, where a person fled to a country between which and the State of Israel there was no bilateral extradition agreement at the time the offense was committed – extradition will be possible by concluding a special extradition agreement – which will be subject to Israeli extradition law.

Is it possible to extradite for any criminal offense?

Section 2 (a) of the Extradition Act anchors the requirement of “double criminality“. The double criminality in fact requires that the act for which the extradition of the person seeking extradition is requested – constitutes a criminal offense under both the laws of the requesting state and the laws of the requested state. To this requirement is added the principle of double risk, according to which a person who is exposed to prosecution should not be extradited twice, for the same offense.

An example of the application of the double criminality requirement is found in the appeal of the extradition procedure Malka Leifer v. Attorney General, in which the Supreme Court rejected an appeal against the decision to declare the appellant extradited to Australia in order to prosecute her there for committing sexual offenses on her students, as a teacher and school principal. The Supreme Court rejected The appellant’s contention that the double criminality requirement is not met in the extradition process and stated that: for the purpose of the double criminality requirement, all the elements of the offense do not overlap, but it is sufficient that the essential elements of the offense appear both in the requesting state and in the requested state.

Furthermore, Section 2B of the Extradition Law states, among others, that the person requested for extradition will not be extradited to the state requesting the extradition due to an offense of a political nature, or due to a military offense (subject to conditions).

Is it important that the person requested for extradition was a citizen and resident of Israel at the time the offense was committed?

It is important to note that according to the Extradition Law, the judgment of the person seeking extradition when the offense was committed by a citizen and resident of Israel, is different from a person wanted for extradition who was not.

Thus, and for the sake of example, section 1A of the Extradition Law stipulates that a person who was a citizen and resident of Israel at the time the offense was committed may be extradited, provided two cumulative conditions are met: first, is that the extradition request is to prosecute in the requesting country. the second, that the state requesting his extradition oblige in advance to transfer him back to the State of Israel for the purpose of serving his sentence there, if he is convicted and sentenced to imprisonment, which takes away the great suffering of serving a prison sentence in a foreign country, as stated above.

And what is the case with a person who is wanted for extradition and was not a citizen and resident of Israel at the time the crime was committed?

In certain cases, and in accordance with section 7 (b) of the Law on the Imprisonment in the State of the Prisoner’s Citizenship, (1996),

Also, in accordance with the ruling of the Supreme Court, among others in HCJ 3842-18 Yigal Alon Makhlouf v. the Minister of Internal Security, the requirement of residency can be exempted and/or eased, thus returning the person requested for extradition to the State of Israel to serve the prison sentence.

Is it possible to have a legal defense against a request for extradition?

It is important to note that it is certainly possible to deal with and defend against a request for extradition, in two ways: One is procedural, by raising allegations regarding the manner of filing the extradition request, its form, content, etc. 

The second is the essentials, among other things, by examining the existence of restrictions that will cancel or pose a difficulty on extradition, as well as through arguments against the evidence in the extradition case, such as a claim of double criminality, statute of limitations, violation of public policy and more.

What is the threshold of evidence accumulated that requires proof in the extradition process?

The evidentiary continuum that requires proof in a petition for the declaration of a wanted person already in extradition, is called the “grip for accusation”, which is very similar to the “apparent evidence” standard in the detention procedure until the end of the proceedings. 

It should be noted that the threshold for the charge is significantly lower than the threshold in the criminal law of “beyond a reasonable doubt”, and therefore it is very important that a criminal lawyer who specializes in extradition law, review and analyze the evidentiary fabric used to petition the extradition.

What about an arrest of a person who is wanted for extradition to a foreign country?

In quite a number of cases, international arrest warrants are found against extradition seekers, which are enforced by Interpol and its affiliates around the world, including an affiliate in the State of Israel, and with the arrival of the extradition wanted to the State of Israel, he may be arrested immediately.

It is important to note that this is not the end of the road, as there is a possibility to “appeal” warnings issued against extradition seekers by Interpol, as well as to submit requests that shed light on existing suspicions against the extradition petitioner.

In addition, according to section 6 of the Extradition Law, the requesting state, prior to filing the extradition request, may request the arrest of the potential extradition applicant, in order to ensure his extradition. Yes, under section 5 of the Extradition Act, once the petition has been filed, the court may, at any stage of the hearing, order the arrest of the requested person (as custody until the end of the legal proceedings).

Is it possible to predict the extradition request or the arrest request?

There are cases in which, in the early stages, the state that in the future becomes the “state requesting the extradition”, turns to the State of Israel for legal assistance, in which the State of Israel will be asked to conduct investigative actions for the requesting state.), According to the Legal Aid between States Law, (1998) (hereinafter: “the Legal Aid Law”).

Therefore, in a case where a person residing in Israel is required to be questioned in connection with an offense committed in a foreign country and/or knows that a person related to an offense committed in a foreign country gave evidence about him and/or that his assets were seized, frozen or confiscated, it is possible to understand, by filing an application with a criminal lawyer whose area of practice is extradition law, whether the person is at risk of extradition to a foreign country, as well as an arrest.

It is very important to note that this is a critical stage, as through the foreign state’s request for assistance, the foreign state will try to obtain sufficient evidence for the future extradition request, which will increase the chances that the international prosecutor will accept the request and submit a petition to the Jerusalem District Court for extradition.

Lately, the law firm of attorney Sharon Nahari has been dealing with a new kind of extradition cases, revolving around charges of Crypto-Currency fraud & legal issues, alongside the more traditional cases of extradition applications for crimes such as money laundering, Forex trading fraud, Binary Options trading fraud, and other online fraud accusations. Nahari’s firm has dealt with the local legal aspects of each case, as well as the international aspects of them.

In conclusion: As depicted, the extradition process has far-reaching implications both for the extradition applicant and for his family, friends, and acquaintances. However, there are cases where the request for extradition can be anticipated, and arguments can be raised at early stages. Moreover, even when an extradition request has been filed, there is a variety of ways to defend against it and to raise allegations that could impede the extradition. Therefore, there is great importance in consulting, representing, and being accompanied by a criminal lawyer who specializes in extradition law.