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EXTRADITABLE ACTS
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offences which are serious enough for such a penalty to be within the prescribed range of punishments are to be regarded as extra- ditable notwithstanding that after extradition it might be open to a court to decide, in the light of all the evidence and the representations made to it by the prisoner, that some lighter penalty was appropriate under the applicable law.
The provisions of article 2 of the Harvard draft convention are in accordance with the views expressed here:
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[A] requested State shall extradité a person claimed for an act for which the law... provides a possible penalty of death or deprivation of liberty for a period of two years or more.1
State practice has, however, continued to favour the use of the terms 'minimum' or 'maximum'. Fortunately, there would appear to be no evidence that these provisions have been inter- preted otherwise than in accordance with the view that such terms connote possible and not mandatory penalties, but it would seem desirable that in future treaties this patent ambiguity should be avoided.
THE PRINCIPLE OF DOUBLE CRIMINALITY
The basic rule observed by the enumerative and 'no list' treaties alike is the rule of double criminality. This rule requires that an act shall not be extraditable unless it constitutes a crime according to the laws of both the requesting and the requested States.2
The validity of the double criminality rule has never seriously been contested, resting as it does in part on the basic principle of reciprocity which underlies the whole structure of extradition, and in part on the maxim nulla poena sine lege. For the double criminality rule serves the most important function of ensuring that a person's liberty is not restricted as a consequence of offences not recognized as criminal by the requested State. The social
1 Harvard Research: Extradition, 77-80 (1935). It will be noted also that the term 'deprivation of liberty' is used in preference to 'imprisonment' in order to take account of the modern tendency towards experimentation with various kinds of reform institutions or restrictions on liberty which do not constitute imprisonment in the traditional sense.
* See generally Benz, Das Prinzip der identischen Norm im internationalen Aus- lieferungsrecht (1941); Mörsberger, Das Prinzip der identischen Strafrechtsnorm im Auslieferungsrecht (1969).