Suçluların geri verilmesi
Extradition
- Tez No: 100164
- Danışmanlar: YRD. DOÇ. DR. TÜRKAN SANCAR
- Tez Türü: Yüksek Lisans
- Konular: Hukuk, Law
- Anahtar Kelimeler: Belirtilmemiş.
- Yıl: 2001
- Dil: Türkçe
- Üniversite: Ankara Üniversitesi
- Enstitü: Sosyal Bilimler Enstitüsü
- Ana Bilim Dalı: Kamu Hukuku Ana Bilim Dalı
- Bilim Dalı: Belirtilmemiş.
- Sayfa Sayısı: 269
Özet
Özet yok.
Özet (Çeviri)
Extradition is a process by which one state, upon the request of another, effects the return of a person for trial, suspected or convicted of a crime punishable by the laws of the requesting state and committed outside the state of refuge. According to the principle of territorality of criminal law, a state does not apply its penal statutes to acts committed outside its boundaries except in the protection of special national interests. In view of the solidarity of nations in the repression of crime, however, states are usually willing to cooperate in bringing a criminal to justice. As a matter of fact it can be said that extradition is one of the the oldest form of cooperation between states in the struggle against criminality. Its origins go back to the very beginnings of formal diplomacy. In what has been described as the oldest document in diplomatic history, the peace treaty between Ramses n of Egypt and the Hittite prince Hattusili III (1280 B.C.), provisions was made for the return of the criminals of one party who fled and were found in the territory of the other. The law of extradition evolved through bilateral and multilateral conventions, internal extradition laws and customary international law. Extradition first became a common policy in the 19th century with bilateral and multilateral conventions which states signed. There are commonly accepted provisions and conditions in extradition law which restricts the return of the fugitive. These are as follows: International law does not recognize extradition as an obligation in the absence of a treaty, and although a state may, as a matter of courtesy, refuse asylum to a fugitive and honor a request for extradition, virtually all extradition takes place under the authority of bilateral treaties. One of the main restriction in extradition is nationality. Civil law states do not usually extradite their own nationals. Common law states never adopted such a restrictive genaral approach. But in recent years civil law states for instance Italy, Switzerland and Germany made arrangements in their Penal Laws and Constitutions which allows to extradite their own nationals under some conditions. 253The other restriction is political offence exception. The concept of a political offence as a formal limitation on the practice of extradition, is of relatively recent origin. And in todays International law, this exception is a standart clause in almost all extradition treaties and also specified in the municipal laws of many states. For instance according to Turkish Criminal Code Article 9,“extradition shall be refused if the offence regarded as a political offence or acts connected with a political offence”. The European Convention on Extradition Article 3 constitutes the same exception as:“Extradition shall not be granted if the offence in respect of which it is requested is regarded by the requested Party as a political offence or as an offence connected with a political offence”. But in recent years with the developments in international law and international policy states made some arrangement about this exception. The starting point of these works is the establishment of Nuremberg International Criminal Court. With the statue of the court crimes against humanity, crimes against peace and war crimes were regarded as an international offence. After that with the support of U.N. a world-wide Genocide Convention was signed. Increasing aircraft hijacking with political aims in 60's and 70's, the states made 3 conventions about this problem. According to these conventions (Tokyo, Hague, Montreal), unlawful seizure of aircrafts regarded as an extraditable offence which the hijackers aim does not matter whether it is political or not. The other two restrictions on return of the fugitive are military offences and fiscal offences. Nevertheless“Second Additional Protocol to the European Convention on Extradition”Article 2 which replaced the Article 5 of the Convention concerning non- extradition of fiscal offences declares that 'Tor offences in connection with taxes, duties, customs and exchange extradition shall take place between the Contracting Parties in accordance with the provisions of the Convention if the offence, under the law of the requested Party, corresponds to an offence of the same nature“. After this arrangement it is difficult to say fiscal offences are limitations of extradition. Military offence exception is ordered in the 4th Article of the European Convention on Extradition. According to the article: ”Extradition for offences under military law which are not offences under ordinary criminal law is excluded from the application of this Convention“. The 9th Article of Turkish Criminal Code constitutes the same provision. 254As seen in some multilateral conventions capital punishment can be a restriction on extradition. According to the Article 11 of the European Convention on Extradition: If the offence for which extradition is requested is punishable by death under the law of the requesting Party, and if in respect of such offence the death-penalty is not provided for by the law of the requested Parry or is not normally carried out, extradition may be refused unless the requesting Party gives such assurance as the requested Party considers sufficient that the death-penalty will not be carried out”. Italy made a reservation to this Article at the time of signature of the convention which declares that it will not, under any circumstances, grant extradition in respect of offences punishable by death under the law of the requesting Party. As remembered, two years ago this reservation was the cause of a political problem between Italy and Turkey about the Ocalan Case. As mentioned above these limitations can be named“the principles of non- extradition”. In some circumstances extradition may be refused. These are as follows: a) If the competent authorities of the requested state have decided eitjer not to institute or to terminate proceedings against the person for the offence for which extradition is requested, b) If the prosecution in the requested state is pending for the same offence, c) If the offence has been committed outside the territory of either party and the law of the requested state does not provide for jurisdiction over such an offence committed outside its territory, d) If the offence is regarded under the law of the requested state as having been committed in whole or in part within the state, e) If the person whose extradition has been requested has been sentenced for the same offence, 255f) If the person whose extradition has been requested has, under the law of either party, become immune from prosecution or punishment for any reason, including lapse of time, amnesty or complaint. One of the main important principle of extradition is“rule of speciality”. This principle means, the fugitive person who has been extradited to the requesting state shall not be proceeded against, sentenced, detained, re-extradited to a third state, or subjected to any other restriction of personal liberty in the territory of the requesting state for any offence committed before surrender other than, an offence for which extradition was granted, any other offence in respect of which the requested state consents.
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