criminal law

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September 16, 2019

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Background

The UAE and South Africa have executed and ratified the treaty on extradition and mutual legal assistance, which aims to enable the two countries, through mutual collaboration, to extradite any accused, who has been charged with or convicted of an extraditable offence and is hiding in the other country.

South Africa and the UAE after prolonged negotiations signed the treaty in 2018. The Parliament of South Africa ratified the treaty in November 2018 while the ratification by the UAE took place in June 2021. The treaty came into force on 10 July 2021.

The treaty covers several criminal acts including but not limited to, torture and criminal acts punishable by the death penalty.

It is believed that international criminal justice aims to strike a balance between respecting a state’s sovereignty and integrity, and cooperation with other countries to bring criminal justice. The correct and adequate procedure for a state (the requesting country) is to request another state (the requested state) for mutual collaboration and cooperation for assistance in legal matters in the extradition of an accused.

A perpetrator can be extradited if the requesting state complies with the applicable treaty if available or the domestic laws of the requested country, in case no treaty has been signed between the countries. The treaty signed between the two states determines the types of offences in which extradition will be possible and the instances under which the requested state can refuse it.

Extradition Treaty: Highlights

The preamble of the treaty reaffirms the parties' concerns about the magnitude of the offences such as international terrorism and other crimes of serious nature.

Article 1 of the treaty states that the parties have agreed to extradite persons hiding in their country who have been charged under or are convicted of an offence for which they can be extradited.

In accordance with Article 3/1 of the treaty, extradition will be granted under the treaty in the following cases.

  1. where the act constitutes an offence punishable by imprisonment for at least one year or more, by both countries; or 

  2. where the requested person has already been convicted of the offence resulting in imprisonment of one year or more, and the is sought for enforcement of the sentence and at least six months of the penalty remains to be served.

In addition, the treaty, under Article 3/4  empowers the requesting country to seek extradition for violation of laws relating to taxation, customs duty, and foreign exchange. In such cases, the extradition will be granted even if the requested country does not impose the same kind of taxes or duties as imposed by the requesting country.

Article 4 of the treaty sets out the circumstances under which extradition will not be granted by the requested country. These include: 

  1. if the offence for which extradition is requested is of a political nature. Offences of political nature would not include any offence related to terrorism, assault or murder or attempted assault or murder against the President, Deputy President, Head of the Government, etc., amongst others.

  2. if the extradition is requested to prosecute a person on account of such person’s race, religion, nationality or political beliefs. 

  3. if the offence is under military law, which is not an offence under the criminal law of the parties. 

  4. if the requested person has already been acquitted of the offence for which extradition is requested, and if convicted, has already served his sentence. 

  5. if the offence is time-barred.

Article 6 of the treaty also clarifies that neither party will extradite its nationals to the other country unless it is permitted by its national laws. 

A country is also entitled to refuse a request for extradition in certain specified circumstances, as set out in Article 5 of the treaty. These include, amongst others, where the courts of the requested country have jurisdiction to prosecute the person for the offence for which extradition is requested, where the extradition will lead to humanitarian hardships to such person, etc.

What is the process of extradition between UAE and South Africa?

Under the treaty, requests for extradition are required to be made in writing and sent through diplomatic channels. Along with the extradition request, supporting documents will also have to be sent.

According to Article 9 of the treaty, the following documents will be submitted along with the extradition request.

  1. information regarding the person sought, including details of his identity, nationality, location and; and 

  2. details of the nature of the offence, including the date and place of commission of the offence, legal provisions, time limitation for prosecuting the offence or executing the punishment, copy of the arrest warrant and the charging document, etc. 

If the person is sought for enforcement of a sentence, then the request will be accompanied by a copy of the final judgment setting out the conviction and sentence imposed.

In the event the information is incomplete or insufficient, the requesting party will be informed under Article 10 of the treaty, and submit the additional information.

The decision of the Requested Country on Extradition 

Once the requested party has decided on the extradition request, it should inform the requesting party in accordance with Article 11 of the treaty. 

In case the extradition request is refused, reasons for refusal will have to be provided. On the other hand, if the extradition request is accepted, the countries will agree on the date, venue, and manner in which the surrender will take place. 

The requested person is to be removed from the country within 30 days from the date of notification of surrender. If the person is not removed within that period, the requested country may refuse to extradite that person.

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