Abu Dhabi – Several extradition cases have been heard by UAE Courts in recent years regarding the extradition of a requested person “Requested Person” to the United States of America. In the absence of a bilateral treaty, the UAE Court will apply the internal UAE law and will broadly examine sixteen (16) points in order to determine whether to extradite the Requested Person.
If the Requested Person is able to prove that any one of these legal points is not applicable to the case, then it is possible that the Court will delay, or ultimately refuse extradition.
The legal representative of the Requested Person must ask three key questions:
1- Upon what basis can the US Government request extradition under UAE law?
2-Can the US Government request extradition in the absence of an extradition treaty with the UAE?
3- What will a Judge consider before approving or rejecting extradition?
Firstly: Upon what basis can the US Government request extradition under UAE law?
The US Government has several bases upon which it can request the UAE authorities to extradite the Requested Person.
These are the existence of a bilateral treaty for judicial co-operation, an international agreement that both countries are party to, diplomatic channels and the internal law of the UAE.
If there is a judicial co-operation agreement between the USA and the UAE, then the provisions of this treaty shall prevail over internal UAE law.
There is currently no such mutual extradition agreement.
However, even in the absence of a judicial co-operation agreement, the UAE can still grant extradition through its internal law.
The matter would be referred to the UAE authorities for the issuance of a provisional arrest warrant. When the Requested Person enters custody then the court can, if all the conditions are met, rule on extradition based on internal UAE law.
Broadly speaking, UAE Federal Law Number 39, 2006 for the International Judicial Co-operation in Criminal Matters will govern extraditing the Requested Person to the USA.
Also, there are international conventions that contain provisions regarding mutual co-operation and extradition. The prevailing ones are the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 and the United Nations Convention against Transnational Organized Crime of 2000. The UAE and the USA are both party to said conventions.
Finally, the International Criminal Police Organization (the INTERPOL) can also issue a worldwide ‘Red Notice’ to locate and provisionally arrest a person, including the Requested Person, pending extradition.
Secondly: Can the US Government request extradition in the absence of an extradition treaty with the UAE?
The simple answer is yes.
In the absence of a bilateral agreement, the UAE Court will ask and examine the below points in order to determine whether to extradite the Requested Person.
1- whether the UAE and the USA are party to a relevant international convention and, if so, whether there are any reservations or declarations from either contracting state; and
2- whether the ‘reciprocity principle’ can be applied to the Requested Person’s case.
Thirdly: What will the Judge consider before approving or rejecting extradition?
Once those questions have been answered and assuming reciprocity principle between the contracting states does exist, the UAE Court will examine the following points to determine whether to extradite the Requested Person. If any of the below conditions are not met, then it is likely that the UAE court will decide not to extradite the Requested Person:
1- whether the conduct upon which the offence is based is punishable under the law of both the UAE and the USA by deprivation of liberty for a period of at least one year or more, or by a more severe penalty;
2- whether the Requested Person is a UAE national;
3- whether UAE law has jurisdiction to try the Requested Person;
4- whether the offense for which extradition is requested is a political offense;
5- whether the crime is limited to offenses against military obligations;
6- whether the purpose of the request is for reasons related to ethnic or religious affiliation, or to nationality or political opinion;
7- whether the Requested Person was subjected to investigation or trial in the UAE for the same crime for which the USA is requesting extradition;
8- if the Requested Person was previously tried for the same crime, a judgement of acquittal or conviction was rendered and the sentence fully served,
9- if an irrevocable judgment has been rendered by the UAE courts regarding the crime for which extradition is requested;
10- if the criminal lawsuit has been terminated or if the sentence has been forfeited by statute of limitation; and
11- whether the Requested Person was subjected, or may be subjected to torture, inhuman or insulting treatment, or serve sentence not appropriate to the crime, or if the minimum standard of guarantees determined in the panel procedures code are not available.
The US Government must provide the following documentation, which generally include:
1- A copy of legal texts pertaining to the crime;
2- An official copy of the investigation report and the arrest warrant containing, among other things, a description of the crime, the acts attributed to the Requested Person and date and place of the criminal offence,
The above shall be all translated, officially authenticated and sent through diplomatic channels.
Below are the main points upon which the Requested Person can rely and a description of how broadly a UAE Judge will interpret these.
1- Whether there is bilateral judicial co-operation between the UAE and the USA
The Judge will firstly consider whether there is a bilateral agreement between the contracting States (the UAE and the USA).
Broadly speaking, specific extradition treaties prevail over national law. If there is a bilateral treaty for extradition in place, then the contracting states will usually agree tailor-made terms that will govern extradition. This may result in extradition requirements that are less stringent than those stated in local UAE law.
Given the absence of a bilateral agreement between the USA and the UAE, the UAE Court will apply (considering point 2 below) local law in order to determine whether to extradite a Requested Person. Generally speaking, the US Government will not have an additional privilege from the absence of a bilateral treaty.
2- international conventions that both the UAE and the USA are party to and whether additional provisions or declarations from either side exist.
The United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 and the United Nations Convention against Transnational Organized Crime of 2000 agree mutual co-operation regarding extradition. Both the UAE and the USA are parties to these two Conventions.
Neither the UAE nor the USA have declared any reservation regarding the provision of both conventions. Therefore, the Judge may adjudicate within the terms of these Conventions.
The 2000 Convention mentions that the UAE can independently consider extradition. However, if the US Government does not base its extradition request on the two above mentioned Conventions then, in practice, it is likely that the UAE Courts would refer to internal law without reference to the two mentioned conventions.
As such, the inapplicability or reliance on an international convention does not preclude the UAE courts from determining whether or not to extradite a Requested Person.
Internal law underpinning the UAE Courts considerations is discussed below.
3- Whether the ‘reciprocity principle’ will apply between the UAE and the USA
Yes, the principle of reciprocity would be applied in UAE Courts although Judge would require confirmation. The reciprocity principle asks what would happen if the tables were turned:
If the UAE were the requesting state and submitted an extradition request to the US authorities, would the US authorities in these circumstances allow extradition?
The below are points that the legal representative of the Requested Person must consider:
How can the UAE Court determine if the ‘reciprocity principle’ applies between the UAE and the USA?
The first and foremost, the Judge will want to establish the existence of a mutual agreement that contains a reciprocal approach.
There is not, so the Judge will want to establish if there is a convention that both parties have agreed upon and if reciprocal provisions and obligations exist between the UAE and USA.
From reading the two conventions mentioned before, it is difficult to conclude that both the UAE and USA carry mutual obligations in terms of extradition for the same offence and in the same circumstance.
As such it can be argued that the reciprocity principle does not apply, based on existing conventions and mutual treaties.
However, the reciprocity principle would still apply if, for example, the UAE had previously made an extradition request to the USA and, along with the request, issued an official declaration or undertaking stating that it would agree to a similar extradition request, taking into account the offence and circumstance.
As such, the first step would be for the legal representative to undergo a comprehensive study regarding previous extradition requests between the UAE and USA. The relevant Government
body in the UAE is the Department of International Mutual Co-operation within the UAE Ministry of Justice.
Likewise, the reciprocity principle would apply if the US Government, along with extradition request, were to submit an official letter to the Minister of Justice or the Ministry of Justice of the UAE undertaking that, if the UAE were to extradite the Requested Person, then the UAE could expect the USA to reciprocate under similar circumstances in the future.
Example Case: The Romanian Government made an extradition request to the UAE and along with the request, the Minister of Justice of Romania sent an undertaking, stating that they would extradite a person from Romania to the UAE in the future for the same offence. The UAE court accepted and concluded that letter met the reciprocity principle as per the requirements of UAE law.
However, it is important to note that the UAE operates a system of civil law, whereas the USA operates a system of common law.
Under the UAE system of civil law, a reciprocity undertaking is obligatory, while under the common law system, a reciprocity undertaking is not obligatory. This means that even if the US were to communicate an undertaking to the UAE Government then the US Government would apply the reciprocity principle in the future for a similar matter. There is opportunity to argue that such undertaking would not be a legally binding arrangement and therefore, that the Requested Person must not be extradited to the USA.
It is therefore advisable for the legal representative of the Requested Person, as a second step, to seek legal opinion from an US law expert to support the argument in the UAE. This must include an understanding of whether the Secretary of Justice in the USA, or any other governmental body in the USA, can make such an undertaking, in the absence of a mutual judicial co-operation agreement having passed through Congress.
The legal representative will need to request further information from the Department of International Mutual Co-operation of the UAE Ministry of Justice regarding the USA-UAE agreements. This request will need to include information on the UAE’s relation with other common law systems, especially examining differences between the letter of undertaking sent by the US Government and UAE Civil Law. This shall be done after collaborating first with the US lawyers.
4- Whether the conduct upon which the offence is based is punishable under the law of both the UAE and the USA by deprivation of liberty for a period of at least one year or more, or by a more severe penalty
Under this condition, the UAE Court will not examine the merits of the case nor study the Requested Person’s offence. The Court will broadly examine only the request of the US Government and the offence mentioned in the request, including the supporting documents (these documents may include the indictment, reference to the US law and the definition of the offence under the US law).
For example, if the request is made in relation to a financial crime (money laundering) or in relation to organized crime, the UAE Court would typically only look at the U.S Code to establish the provisions of law in relation to the stated offence. The UAE Court would look to its internal law for provisions that criminalize money laundering or organized crime (this is called the dual criminality test).
There are provisions under both UAE and US laws that criminalize both offences. Therefore, in this case the UAE would not examine the conduct of the Requested Person or make reference to the crime, it would only look to internal law to establish if provisions cover the offence upon which the extradition request is based.
Therefore, if the legal representative of the Requested Person can prove that the dual criminality test applies and argue that the conduct upon which the request of the US is based is not punishable under the UAE law, then it is likely that the Judge will refuse to extradite the Requested Person.
As such, the legal representative must consider, in collaboration with an experienced US lawyer, whether the alleged offence is considered an ‘offence’ under both US and UAE law in order to establish the proper legal basis to reject extradition.
5- Whether the Requested Person is a UAE national
The UAE court will consider whether or not the Requested Person is a UAE national. If the Requested Person is a UAE national, then the Judge will likely reject the US request to extradite the Requested Person.
6- Whether the laws in the UAE has jurisdiction to try the Requested Person
If the UAE has jurisdiction to try (to examine the case and resolve the dispute by means of trial) the Requested Person, then it is likely that the Requested Person will not be extradited to the USA.
If the UAE Public Prosecutor chose not to bring criminal proceedings against the Requested Person, then the Court would not look at the law to decide whether the UAE has jurisdiction to try the Requested Person.
However, there is a room for argument that if the USA failed to explicitly mention in its request where the Requested Person committed the offence, then the UAE Judge would be unable to determine whether UAE has jurisdiction to try to Requested Person in the UAE.
This may not lead to the automatic release of the Requested Person, as the UAE Court could still ask the USA for clarification and the USA could provide further information.
Furthermore, consideration must be given as to whether the Prosecutor could be persuaded to file proceedings against the Requested Person. This requires extensive examination by the legal counsel in advance in order to define a suitable defence strategy.
7- Whether the offense for which extradition is requested is a political offense or an offence against military obligations or for reasons related to ethnic or religious affiliation, or nationality or political opinion
This is a different topic and will be discussed extensively in a separate article.
8- If the criminal lawsuit is terminated or if the sentence is forfeited by time limitation when submitting the request for surrender
This is a key questions that the legal representative must consider from the outset.
If the purported offence was historical, could the UAE extradite the Requested Person? The answer is that it could, but based on the US law and not the UAE law. UAE court would not be required to refer to UAE law, instead it could rely on the relevant US law to determine if the statute of limitations had lapsed.
Again, the Judge must consider this as per US law and not UAE law. This is a mistake made by many lawyers, in referring to the time limitation under the UAE law and not the US law.
As such, it is advisable that your legal representative consult with a US lawyer from the outset to determine whether the offence has lapsed by time limitation under US law.
9- The Investigation Report
In deciding upon extradition, the UAE Court, would request, among other things, an official document containing all of the investigation materials and evidence to support the prosecution of the purported crime including the time and the place that the offence took place.
However, investigation reports are confidential in the US so it is likely that the US would instead send an indictment.
If this is the case, and if the time and place of the offence were not mentioned, then there is a chance that the Judge could reject the request. Additionally, there may be grounds to differentiate between the indictment and an investigation report. This however is extremely detailed and requires considerable attention.
Example: The German Government requested that the UAE extradite a German citizen, who was accused of committing financial crimes under German Law. In its request, the German Government provided all of the requested documents to the UAE but not the investigation report. However, the German Government did attach the arrest warrant that contained the description of the crime, the time and location of the crime.
In this case, the UAE Court concluded that such description did not equate to an investigation report and rejected the extradition request.
Therefore, the legal representative in the UAE must, in collaboration with the US lawyer, comprehensively examine the meaning of the indictment under the US law and evaluate the legal difference between the investigation report under the UAE laws and the indictment.
10- Whether the Requested Person has been subjected to investigation or trial procedures in the UAE for the same crime for which the USA is requesting the Requested Person; if the Requested Person was previously tried for the same crime he is requested for and a Judgement of acquittal or conviction is rendered; and whether the Requested Person has fully served the sentence. Additionally, If an irrevocable Judgement is rendered by the courts in the UAE regarding the crime for which the surrender is requested or whether the Requested Person was subjected or may be subjected to torture, inhuman or insulting treatment or a sever sentence not appropriate to the crime or if the minimum standard of guarantees determined in the panel procedures code are not available.
The legal representative of the Requested Person must from the outset know the entire history of the Requested Person in terms of previous or existing lawsuits, investigation, trial procedures and any matter that may be classified as an offence under both UAE and US Law.
This is important, as if proven the Judge may decide to reject the extradition request.
Other points to be taken into consideration
As per the internal laws of the UAE, in urgent matters, the Public Prosecutor can ask for a provisional arrest of the Requested Person for a maximum period 15 days. If the US Government, is late in providing the documents, the Prosecutor may extend the detention of the Requested Person for a maximum of 40 days. In this instance, the Prosecutor may order the release of the Requested Person upon the provision of a personal or financial guarantee.
If arrested, the Requested Person will need to be present before the Federal Prosecutor within two days and, thereafter the Prosecutor shall refer the Case to the Court within 15 days.
After the matter is referred to the Court, a judgment must be issued. However, it is not clear how long the Court will take to make such a decision.
If the Court decides not to extradite the Requested Person, then he shall be immediately released. The Court may reconsider its decision in the event of the US Government issuing a new extradition request with additional conditions.
Finally: What else?
1- The legal representative must consider whether an opinion from an American lawyer (or an expert report from the US end) is considered as acceptable evidence in the UAE.
2- There is a way whereby two countries ask the UAE to extradite the Requested Person before the Judge makes a decision. Your legal representative must examine this and consult with experts, which may extend beyond to US and UAE law.
3- The legal representative must consider the ‘Speciality’ rule. The Speciality rule simply means that the Requested Person will be not be tried for any offence other than the basis upon which the request was made.
4- The legal representative:
(a) must consider the prosecution process including, how much time it would take the Court to issue a judgement, how many times pleas and memorandums can be submitted, how much time is available call for expert reports, additional legal opinion, collaboration with the US lawyers and with additional experts;
(b) needs to fully understand the provisional arrest warrant, the official request and be able to counter with a suitable strategy,
(c) must examine, the ‘Conspire to Commit’ offence under the US law, as it is likely that the USA would rely on this offence to request the extradition of the Requested Person and
(d) must discuss with the US lawyer the remote co-operation mechanism during or after the Requested Person is detained (and before making a judgement).
Summary: In short, the Requested Person must consult with a specialised legal advisor from the outset and with US lawyers and experts in advance to draw up the proper strategy. It is ideal if the UAE legal representative manages the entire relationship with all of the other attorneys and experts.
By Mr Ahmad H. Haddad
Managing Partner/Abu Dhabi