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Political Offenses in the Law and Practice of Extradition1

Published online by Cambridge University Press:  12 April 2017

Lora L. Deere
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Extract

Since the middle of the 18th century the practice of extradition has gradually developed until today there are some 350 extradition conventions, practically all bilateral in nature, and extradition laws in twelve or more states. These conventions and laws regulate the various phases of extradition procedure, and, in most instances, contain an article concerning political offenses. This circumstance, combined with the fact that political offenders are numerous, makes the problem of political offenders in extradition one of current importance.

Type
Research Article
Information
American Journal of International Law , Volume 27 , Issue 2 , April 1933 , pp. 247 - 270
Copyright
Copyright © American Society of International Law 1933

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Footnotes

1

This study does not include the states of Latin America, except in so far as they have extradition conventions with the states under consideration.

References

2 The following states have extradition laws: Belgium (Oct. 1, 1833, Mar. 23, 1856, and Mar. 15, 1874), Finland (Feb. 11, 1922), France (Mar. 10, 1927), Germany (Dec. 23, 1929), Luxemburg (Mar. 13, 1870), the Netherlands (Aug. 13, 1849 and Apr. 6, 1875), Norway (June 13, 1908), Sweden (June 4, 1913), Switzerland (Jan. 22, 1892), and the United States (Rev. Stat. , Secs. 5270-5274). Japan has extradition regulations, Aug. 3, 1887. Czarist Russia had an extradition law of Jan. 6/19, 1912. Extradition under the Soviet regime is regulated by a decree of Mar. 28, 1918.

3 To substantiate this, one need only recall recent newspaper accounts of political uprisings, political refugees or political criminals. Spain, Cuba, Italy, Russia, France and Germany come readily to mind.

4 The German extradition law defines purely political offenses in Art. 3, Seo. 2.

5 See the Belgian Constitution of 1831, Art. 5 of the French Constitution of 1848, also the French law of Oct. 8, 1830, which concerns trial by jury.

6 The German jurist, Löwenfeld, made a most careful and painstaking study of political offenses in Belgian, Austrian, French, and German laws in the hope that, with minor adaptations, a definite concept might be elaborated for extradition purposes. “ Erorterung des Begriffes politischer Verbrechen und Vergehen, ” Zeitschrift für die gesamte Strafrechtswissenschaft,V, p. 46 ff. His results, however, were inconclusive, since political offenses in national legislation concern only that particular state, and its attitude is usually entirely different when a foreign state has been injured or threatened.

7 Many French and Belgian jurisconsults, in particular, have given exhaustive definitions of “ political offenses” of this nature. See Vidal, Cours de droit crimind, No. 76, pp. 106-107; Haus, Principea généraux des droit pénal Beige, p. 251; Ortolan, Droit pénal, I, p. 299.

8 This report was adopted, in January, 1926, by the League of Nations Committee of Experts for the Progressive Codification of International Law.

9 See Despagnet, , Droit international public, p. 423 Google Scholar; Ullmann, , Völkerrecht, Google Scholar p. 398; Vidal, op. cit. p. 115; Weiss, , Annuaire, XI, pp. 180-181. Google Scholar

10 Case of Keressilidzé and Magaloff, Feb. 12, 1907, Entscheidungen des Schweizerischen Bundesgerichts, hereafter cited as Ent. Vol. 33, 1, p. 169 ff.

11 Jaffei case, Mar. 30, 1901; La Semaine Judiciaire, No. 46, Nov. 18, 1901, p. 721 ff.

12 For a discussion of the early cases, see the following: Martitz, , Internationale Reehtshilfe in Strafsachen, II, p. 177 Google Scholar; Clarke, , Extradition, pp. 20-23 Google Scholar; Lammasch, , Le droit d’extradition appliquéés aux délits politiques, pp. 21-24 Google Scholar; Billot, , Traité de I’extradition, pp. 107-108 Google Scholar; Lewis, Sir G. C. , Foreign Jurisdiction and the Extradition of Criminals, p. 47. A full discussion of the case of James Napper-Tandy, whose extradition was granted by the Free City of Hamburg to England, in spite of French protests, may be found in Martens, Causes Célbrés, p. 106 ff. , also in Gibbs, Extradition Treaties, p. 13 ff.

13 An exception to this occurred in 1860. Art. 66, par. 2 of the Austrian Penal Code of 1852 made punishable in Austria every act of high treason, even when directed against a foreign power, on the condition that, by its laws or by its treaties, this latter would assure to the institutions of Austria equal guarantees. Only Russia satisfied these conditions by a treaty signed October 3/15, 1860. Martens, F. de, Recueil des Traités, Russia, IV, Pt. II, p. 732.

14 See report of the Select Committee on Extradition (Great Britain), 1868, letter from M. Nestor Treitt to the chairman of the committee, Appendix, No. 9, p. 160. Parliamentary Papers, 1867-68, Vol. VII, c. 393, hereafter cited as Beport of the Select Committee.

15 Le Moniteur Universel, July 11, 1829, p. 1238, cols. 1 and 2.

16 Clercq, , A. J. H. de, Recueil des Traités, III, p. 492. Google Scholar

17 Ibid. IV, p. 260.

18 Expos é des motifs accompagnant le projet de hi rdatif aux extraditions, Moniteur Beige, No. 209, July 28, 1833.

19 See the speech of Doignon, M. , Aug. 17, 1833, Moniteur Belge, No. 232, Aug. 20, 1833. Google Scholar

20 Codes Belges, 1927, p. 1113, Bull. Off. VIII, No. 1195.

21 Martens, , Nouveau Recueil, XII, p. 732 Google Scholar. Clercq, IV, p. 278.

22 Report of the Select Committee. Testimony of Sir Thomas Henry, Questions 269-270, p. 16.

23 The conventions were as follows:

Prussia, Russia, Austria, Sept. 19, 1833, Martens, F. de, Recuiel, Russia, IV, Pt. I, p. 454, Article 6.

Austria-Two Sicilies, Dec. 24, 1845, Neumann, Recuiel, IV, p. 749.

Austria-Modena, June 3, 1856, Neumann and de Plason, Recuiel, I, p. 58.

Russia-Spain, Apr. 12/24, 1888, Br. and For. St. Papers, Vol. 79, p. 136.

Exchange of notes: Bavaria-Russia, Sept. 19/Oct. 1, 1885, Martens, , Nouveau Recueil Général, 2me Sér. , XI, p. 594; Prussia-Russia, Jan. 1/13, 1885 Google Scholar, ibid. X, p. 521.

24 Moniteur Belge, No. 332, Nov. 26, 1836; No. 334, Nov. 28, 1836, Chambre des Représentans.

25 Decision of Feb. 17, 1855, Pasicrisie Belge, 1855, 1, p. 115.

26 Mar. 12, 1855, ibid. pp. 125-126.

27 Mar. 29, 1855, ibid. p. 126, note 1.

28 Pasicrisie Belge, Cours d’appel, 1855-56, p. 231.

29 Annales Parlementaires, Chambre des Reprteentans, session of Dec. 18, 1855, p. 312.

30 Art. 4, convention of June 13, 1882, United States-Belgium, 22 U. S. Stat. at L. , p. 972.

31 The convention with Greece, signed in 1931, and but recently come into force, may also be an exception. I have not seen the text.

32 Conventions with Belgium, Dec. 24, 1874; Luxemburg, Mar. 9, 1876; Brazil, Sept. 17, 1877; Sweden and Norway, Jan. 19, 1878; Spain, May 2, 1878; Uruguay, Feb. 12, 1880; Paraguay, Nov. 26, 1909; Bulgaria, Sept. 29, 1911; and Turkey, Jan. 11, 1917.

33 Lammasch, Auslieferungspflicht und Asylrecht, p. 312. Grivaz expressed the same idea, UL’extradition en matiére de crimes politiques et sociaux, ” Revue générale de droit international public, IX (1920), p. 706.

34 See Lammaech, , Audieferungspflichi und Asylrecht, pp. 329-330. Google Scholar

35 Convention of May 14, 1897, 33 U. S. Stat. at L. , Pt. 2, p. 2091.

36 Protocol of Aug. 13, 1907, 35 U. S. Stat. at L. , Pt. 2, p. 1955.

37 The Finnish law came into force Feb. 11, 1922. A German text of the articles relating to political offenses of this law, as well as of the Norwegian law of June 13, 1908, may be found in Verhandlungen, Reichstag, Bd. 431, Nr. 362.

38 Art. 3, Sect. 3.

39 M. Travers criticized this as a real regression. “ La lot jrangaise d’extradition du 10 mars 1927, ” Journal du droit international privé (hereafter cited as Clunet), Vol. 54 (1927), pp. 609-610.

40 A mine which Hartmann was alleged to have placed, in December, 1879, on the railroad running from Moscow to Koursk, exploded and caused a passenger train to be overturned. Soon thereafter the police in Paris arrested an individual calling himself Mayer, but whom the Russian Ambassador claimed to be Hartmann and whose extradition he asked on the charge of having intentionally damaged the railway and imperiled the passage of trains. Popular interest was aroused and some claimed that Hartmann was a Nihilist whose purpose had been to kill the Emperor by blowing up the Imperial train. The Russian Government denied any political character to the charge against Hartmann. The French Government did not pass upon this question, however, but refused the extradition on other grounds —failure to establish identity and insufficient proofs of guilt. Francis Wharton considered this as merely a pretext, and thought the French Government really refused the extradition because it did not want to enter into a struggle against the Socialist and Anarchist parties who maintained that the assassination of the Czar must be considered part of an insurnctional movement which one was obliged to consider political. See Wharton, , F. “ De l’assistance prétée à une insurrection étrangére, ” Clunet, X (1883), pp. 377-378. Google Scholar See also Calvo, , Le droit international, II, p. 589 ff. Google Scholar

41 The conventions are as follows: Austria-Paraguay, Oct. 16, 1907, Art. VIII, Neumann and de Plason, XXVI, p. 446; Germany-Paraguay, Nov. 26, 1909, Art. Ill, Martens, Nouveau Recueil Général, 3me; Sér. Vol. 9, p. 388; and Germany-Turkey, Jan. 11, 1917, Art. Ill, ibid. p. 717.

42 Cuba-Spain, Oct. 26, 1905, Art. IV. Olivart, Tratados, (1905) Vol. 2, p. 89.

43 Art. 5.

44 Documents Parlementaires, Sénat, 1926, Annexe 114, p. 159, Session of Mar. 4, 1926.

45 Roguin states that in 1849 extradition was refused for an offense connected with a political accusation. In 1862 the Federal Council and the Government of Berne refused to surrender to Austria, in application of the treaty of 1855, an individual accused of high treason. “ La non-extradition des inculpés de délits politiques, ” Clunet, Vol. 8 (1881), p. 309.

46 See Martens, , Recueil de Traités, Nouveau SupplSment, III, p. 799 ff. , 855Google Scholar; “ Piéces coneemant l’expulsion de Louis Napoléon Bonaparte de la Suisse, ” Martens, , Nouveau Recueil, XV, p. 688 Google Scholar; Roguin, , “ Le droit d’astte en Suisse, ” Clunet, Vol. 8 (1881), p. 286. Google Scholar

47 See Langhard, , Das Schweizerische Auslieferungsrecht, p. 204 Google Scholar. In an annex to the convention with Serbia, Nov. 16/28, 1887, the Swiss envoy again explained why his government could not incorporate the attentat clause in its conventions. For text, see Martens, , Nouveau Recueil Général, 2me; Sér. , XIV, pp. 400-401 Google Scholar.

48 Sammlung der Schweizerische GeseUse, Neue Folge, XII, p. 876.

49 Most of the decisions contain a pronouncement to this effect. See the Belanzow case July 18, 1906, Ent. Vol. 32, 1, pp. 538-539.

50 Ibid. p. 542.

51 Ibid. p. 539. Similar statements are to be found in the following cases: Jaffei, , Mar. 30, 1901, La Semaine Judidaire, No. 46 (Nov. 18, 1901), p. 732 Google Scholar; Kilatschitsky, , May 7, 1907, Ent. , Vol. 33, 1, p. 406 Google Scholar; Wassilieff, V. P. , Ent. Vol. 34, 1, p. 544; Wassilieff, V. G. , Clunet, Vol. 37 (1910), p. 699.

52 Kompowsky, Mar. 15, 1886, Ent. Vol. XII, p. 134; Malatesta, Sept. 11, 1891, Ent. Vol. XVII, p. 457; Belanzow, July 18, 1906, Ent. Vol. 32, 1, pp. 540-541; Pavan, June 15, 1928, La Semaine Judidaire (Oct. 16, 1928), No. 32, p. 517.

53 Malatesta, Sept. 11, 1891, Ent. Vol. XVII, p. 450.

54 Jaffei, Mar. 30, 1901, loe. at. p. 721.

55 Malatesta, Sept. 11, 1891, Ent. Vol. XVII, p. 456; Jaffei, Mar. 30, 1901, loc. cit. p. 733.

56 Stephany, Apr. 28, 1906, Ent. Vol. 32, 1, p. 336.

57 Vogt, Jan. 26, 1924, Ent. Vol. 60, 1, pp. 257-258.

58 Ibid. p. 258.

59 Foreign Relations, U. S. , 1909, pp. 520-521.

60 Kaphengst, Oct. 17, 1930, Ent. Vol. 56, p. 461.

61 In addition to the Wassilieff case, the following cases contain a clear statement of this principle: Kilatschitsky, May 7, 1907, Ent. Vol. 33, I, p. 406; Wassilieff, V. G. , Sept. 14, 1909, Clunet, Vol. 37 (1910), pp. 699-700; Vogt, Jan. 26, 1924, Ent. Vol. 50, I, p. 259;Pavan, June 15, 1928, loc. dt. p. 517; and Kaphengst, Oct. 17, 1930, Ent. Vol. 56, 1, pp. 462-463.

62 In the earlier case of Köster, Mar. 17, 1893, Ent. Vol. XIX, p. 122, the federal tribunal held that instigation to perjury (Anstiftung zum Meineid) committed in order to escape punishment for a political offense has a direct and close connection with the same by reason of its purpose and is therefore political in character.

63 Kaphengst, Oct. 17, 1930, Ent. Vol. 56, 1, p. 462.

64 July 14, 1923, Ent. Vol. 49, 1, p. 266.

65 Sept. 19, 1924, Ent. Vol. 50, 1, p. 299.

66 The same idea was expressed in the Jaffei case, Mar. 30, 1901, he. cit. p. 734.

67 Ent. Vol. 56, 1, pp. 462-463.

68 Ent. Vol. 34, 1, p. 552.

69 June 15, 1928, he. cit. p. 519.

70 Silberstein, June 21, 1912, Ent. Vol. 38, 1, p. 154. See also Camporini, Sept. 19, 1924, Ent. Vol. 50, 1, p. 303.

71 Effendi, Emroullah , Clunet, , Vol. 23 (1896), p. 1134; Hotop, July 10, 1894, Ent. Vol. XX, pp. 339-340. Google Scholar

72 Ent. Vol. XIX, p. 127.

73 Ent. Vol. XIV, pp. 438-439.

74 Ent. Vol. 32, 1, p. 339.

75 Ent. Vol. 50, 1, p. 303.

76 Clunet, , Vol. 33 (1906), p. 936; “Questions el Solutions Pratiques, ” ibid. , pp. 131-132. Google Scholar

77 In a similar case the Austrian Government refused to extradite Pozzi, an Italian sailor who stole plans for the defense of Venice and tried to sell them to foreign government officials in Vienna. Italy asked his extradition, holding that the robbery was a common law offense. Austria, on the contrary, held it to be in the category of political offenses. See Clunet, Vol. 32 (1905), pp. 1174-1175. The Austrian Government was justified in this stand if one considers only the objective factors in the case, but the attending circumstances indicated that Pozzi's motives were not primarily political.

78 Chambre du conseil, Gand, June 24, 1909, Pandedes PSriodiques Belges, Vol. 22 (1909), No. 895, p. 643. Cour d’appel de Gand, Chambre des mises en accusation, June 30, 1909, La Belgique Judidaire, 1910, p. 620; Clunet, Vol. 38 (1911), p. 971.

79 Corr. Brux. , Chambre du conseil, Mar. 26, 1910, Revue de droit pinal et de criminologie, 1911, p. 61. Cour d’appel de Bruxelles, July 9, 1910, Pasicrisie Belge, 1910, Cours d’appd, p. 288.

80 Pandedes Piriodiques Belges, Vol. 24 (1911), No. 854, p. 597; La Bdgique Judidaire, 1911, p. 522.

81 See the note of Royer, M., avocat of the court, in Clunet, Vol. 40 (1913), p. 234. Google Scholar

82 Pandedes PSriodiques Belges, Vol. 36 (1929), No. 41, p. 87.

83 See Art. 5 of the extradition law of Mar. 10, 1927.

84 In 1848 the French Republic surrendered an individual suspected of having participated in the murder of Auerswald and Lichnowsky. Lammasch, Le droit d’extradition, p. 60. The French Government also surrendered to Italy an individual who, in 1869, had prepared at Livoume the murder of the Austrian General, Comte Folliot de Crenneville. Lammasch, op. cit. p. 54. It surrendered to Italy the anarchist, Lucchesi, who in 1894 killed the journalist Bandi at Livoume. Fauchille, Droit International Public, p. 1025.

85 At the time of the uprising of the Paris Commune, M. Jules Favre, Minister of Foreign Affairs, instructed French diplomatic agents abroad to ask for the extradition of any of the oulprits who might have crossed the frontier of the state to which they were accredited. In an accompanying note he expressed the idea that the Communist uprising was a cosmopolitan insurrection, directed against the very principle of society so that all governments would have an equal interest in the punishment of the malefactors. Journal Officiel, May 27, 1871, p. 1130.

86 For the French text, see Clunet, Vol. 54 (1927), p. 789 ff.

87 “ Unless the accused formally consents to be extradited, the Chambre des miset en accusation pronouncing, without appeal, gives its reasoned opinion concerning the extradition demand… . This opinion is unfavorable if the court judges that the legal conditions have not been fulfilled or that there has been an evident error. If the reasoned opinion of the Chambre des mises en accusation rejects the extradition demand, this opinion is final and the extradition cannot be granted. If, however, the chamber advises extradition, the executive may exercise its discretion and either grant or refuse extradition. ”

88 In 1835 Prussia surrendered Bardoux, accused of complicity in the attentat directed by Fieschi against Louis Philippe of France. Billot, Traité de l’extradition, p. 113; Lammasch, Auslieferungspflicht und Asylrecht, p. 305. At the time of the Balmacedist revolution in Chile, in 1891, some of the vanquished took refuge on a German cruiser in the harbor. After an exchange of despatches with his government, the commander stated that he would surrender the refugees on board accused of common law offenses, but would carry those accused of political crimes to a neutral port. “ Affaire du Conflit et des Navires Chiliens en Europe, ” Clunet, Vol. 18 (1891), p. 904. In Sept. , 1919, the parquet of Vienna surrendered to the parquet of Munich a person named Lindner who had committed an attempt against the person of the Minister Auer. The formal engagement was made not to treat him more severely than if he had been judged by the Austrian code. Le Temps, Sept. 10, 1919.

89 See Stenographische Berichte, Feb. 5, 1892, Vol. 6, p. 4013.

90 Mettgenberg, , “ The Extradition of the Assassins of the Spanish Premier Dato by the German Reich, ” this Journal, Vol. 16 (1922), p. 542 ff. See also Clunet, Vol. 49 (1922), p. 103. Google Scholar

91 Mettgenberg, art. cit. p. 559. ”

92 Verhandlungen, Vol. 431, No. 362, p. 10 ff.

93 Reichsgesetzhlatt, 1929, 1, No. 46, p. 239.

94 Joseph, L., Gerrity case, Diplomatic Correspondence, U. S. 1864, 1, p. 733; 1864, IV, p. 463 ifGoogle Scholar. In re Tivnan, , 5 B. & S. 645; Clarke, Extradition, p. 143 ff. The other is the Chesapeake case. See the Case of David Collins et ail. Google Scholar

95 Correspondence respecting the Extradition of Bennet G. Burley, Parliamentary Papers (41) 1876, Vol. LXXXII, c. 1528; Further return relating to cases of Extradition of Prisoners under Treaty between Great Britain and the United States, ibid. c. 1621; Upper Canada Law Journal, New Series, 1856, 1, p. 34.

96 See Benjamin, The St. Albans Raid.

97 1891, 1 Q. B. 149.

98 Irish American Victory over Great Britain, issued by the Defense Committee, 1903.

99 Parsons, The Case of Jan Janoff Pouren.

100 U. S. Commissioner Shields refused to hear the case a second time, and so the second decision was made by Commissioner Hitchcock.

101 See Rudowitz case, before the Department of State, Statement and Argument in Behalf of the Accused.

102 33 & 34 Viet. , ch. 52.

103 Mr. Sherman, Sec. of State in 1897, in a note to the Mexican Ambassador, made some observations concerning the provision in the U. S. -Mexican convention of 1861 which exempts purely political offenses from extradition. He did not think it necessary to discuss whether the word “ purely” extended the scope of the right of extradition, and did not wish to construe the treaty on this point. Nevertheless he doubted that it was the intent of the framers to include connected or complex offenses in the category of extraditable offenses, especially since the exclusion of absolutely and purely political offenses is implied without express exception. Foreign Relations, U. S. , 1897, p. 416. The later convention with Mexico, of Feb. 22, 1899, and the convention with Peru, Sept. 12, 1870, also provide that they do not apply to crimes or offenses of a purely political character.

104 The convention of June 15, 1904, between the United States and Spain provided in Art. Il l that “ the provisions of this convention shall not import claim of extradition for any crime or offense of a political character nor for acts connected with such crimes or offenses, except in so far as they shall constitute ordinary crimes or offenses punishable by the laws of the two countries. ” The protocol of Aug. 13, 1907, replaced this provision with another, stating that the convention did not apply to crimes or offenses of a political character.

105 See “ Notes on the Extradition Treaties of the United States, ” by C. C. Hyde, in this Journal, Vol. 8 (1914), p. 487 ff, which briefly treats the U. S. extradition cases in which the question of a political offense was raised, and gives an excellent bibliography.

106 In re Meunier, 1894, 2 Q. B. 415.

107 In 1901 the U. S. Department of State expressed the “ cordial sympathy” of the President with respect to the proposed joint action against anarchists contained in a memorandum regardsubmitted by the German and Russian Ambassadors. Foreign Relations, U. S. 1901, pp. 195-198. In 1900 some anarchists living in Paterson, N. J. , were suspected of being coconspirators of Bresci in his plot resulting in the assassination of King Humbert I of Italy. The U. S. Government extended full cooperation in discovering whether or not this was the case. MS. Notes to Italian Legation, pp. 462, 509.