CYIL vol. 11 (2020)

MIROSLAV KUBÍČEK CYIL 11 (2020) According to these three conventions, extraditionmay be refused if the requested party believes that extradition would facilitate prosecution or punishment of any person on account of race, religion, nationality or political opinions, or would cause prejudice for any of those reasons (Article 6(6) of the 1988 Vienna Convention, Article 16(14) of the UNTOC, Article 44(15) of the UNCAC); the UNTOC and the UNCAC refer also to sex and ethnic origin. It may be relatively easy for an oppressive regime to (falsely) charge political opponents or dissidents with an offence falling under one of the multilateral conventions. Therefore, having a bilateral extradition treaty with robust mandatory and wide range of discretionary grounds for refusal of extradition puts requested parties in better position to resist any pressure to extradite because they can not only rely on and refer to grounds agreed to by the requesting party itself but may even point out that mandatory nature of these grounds gives them no Many states do not require a treaty basis for extradition and usually require only that the request for extradition on non-treaty basis contains assurance of reciprocity. Of the states that signed bilateral extradition agreements with Hong Kong, extradition without treaty basis is (at least under certain conditions) possible under domestic laws of Australia (Section 5(a) of the Extradition Act 86 ; it is, however, required that the requesting party is declared an “extradition country” by a regulation issued by Australia’s Governor-General 87 ), Canada (Section 10(1) of the Extradition Act 88 ; it is, however, required that Canada’s Minister of Foreign Affairs, with the agreement of the Minister of Justice, enter into a specific agreement with the requesting party, making it, in effect, “extradition partner”), the Czech Republic (Section 4 of the Act; the requesting party must provide guarantee of reciprocity, which may be accepted or rejected by the Minister of Justice; the Ministry must consult with the Ministry of Foreign Affairs of the Czech Republic and obtain its consent before accepting such guarantee), Finland (there seem to be no requirement of a treaty in the Extradition Act 89 and information at the website of the Ministry of Justice of Finland 90 confirms that extradition without treaty is possible), France (Article 696 of the Code of Criminal Procedure 91 ), Germany (Section 5 of the Act on International Mutual Assistance in Criminal Matters 92 ), Indonesia (Article 39 of the Law on Extradition 93 ), Ireland (Section 8(1) and (4) of the Extradition Act 94 ; it is, however, required that Ireland’s Government issues an order extending application of Part II of the Extradition Act to the requesting party), the Republic of Korea (Article 4 of the Extradition Act 95 ), Malaysia (Section 3 of the Extradition Act; it is, however, required 86 87 For list or Australia’s regulation-based extradition relationship, see some-countries-with-which-australia-has-no-treaty-relationship.pdf. 88 89 Finnish text is available online at 90 91 English translation is available online at 92 English translation is available online at 93 English translation is available online at pdf. 94 95 English translation is available online at§ion=lawN m&query=extradition#liBgcolor0. other option but to refuse extradition. B. Extradition without Treaty Basis


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