11.
EC/SCP/14 page 3
Nevertheless, despite the more flexible criteria that may be applied by various States in characterizing an offence as "political", the principle of non-extradition for political offences is not in itself sufficient to provide the refugee in all cases with protection against extradition to a country where he has reason to fear persecution. Where, by reason of the criteria applied by the requested State or its evaluation of the facts alleged, an offence is not characterized as a political but as a common law offence, the refugee may indeed be exposed to the danger of extradition.
12.
According to the principle of double criminality, extradition will not be granted unless the offence for which it is requested constitutes an offence under the laws of both the requesting and the requested State. The principle of double criminality is of particular importance in protecting the basic interests of persons whose extradition is requested and, insofar as it is applicable, would also protect refugees against extradition. The principle would not, however, exclude the extradition of a person who fears persecution in the requesting State if the act alleged constitutes an offence under the law of both the requesting and the requested State.
13. According to the principle of speciality, extradition shall not be granted unless there is a guarantee that the requesting State will only prosecute and/or punish for the offence specified in the extradition request and not for any other offence.
14. The view has been expressed that, if the requested State is satisfied that the principle of speciality will be observed, this will remove any obstacle that may exist to the extradition of a refugee. It is, however, questionable whether in the case of a refugee the protection afforded by the principle of speciality can be regarded as adequate. While the principle excludes prosecution and/or punishment for an offence other than the one for which extradition was granted, it cannot give effective protection against excessive punishment or prejudicial treatment for any of the reasons. relevant to refugee status.
15. The traditional principles of extradition law are of course given due considera- tion by States when examining requests for the extradition of refugees. These principles, moreover, within their respective limits, may indeed provide refugees with important legal guarantees. Due to their specific and clearly defined scope, however, these principles do not always provide the refugee with the necessary protection which, in the final analysis, can only be provided by the refusal of extradition by virtue of the principle of non-refoulement.
The principle of non-refoulement in the context of extradition
(a) General
16. The principle of non-refoulement, which is the conerstone of asylum, prohibits the return of a person to a territoty where he has reason to fear persecution. Having regard to the nature and purpose of the principle -the fundamental importance of which has been repeatedly stressed by the Executive Committec there is no inherent reason why it should not also apply with respect to extradition. Indeed, the protection of a refugee cannot be regarded as complete unless he is also protected against extradition to a country where he has reason to fear persecution.