Extradition

Extradition (범죄인인도/犯罪人引渡) is the process by which a person charged sith an offence is forcibly transferred to a State for trial, or a person convicted of an offence is forcibly returned to a State for the enforcement of punishment.

Key words
extradition, Model Treaty, Council of Europe, double criminality, political criminal

Conditions
When extraditing a person, the first issue is whether it is even possible to have him extradited. Accordingly, there are various conditions and limitations that must be met before extradition can be granted. The exact conditions differ depending on the country and treaty.

Double Criminality
The offences eligible for extradition are often limited by the double criminality requrement, which dictates that the offence must be a crime in both states. Most extraditions are also limited to offences that are punishable by more than a year of imprisonment, or some other specified time set by the countries. Theses conditions would be laid out in the extradition treaty.

As such, an extradition treaty creates an obligation to extradite for extraditable offences as defined by the treaty. The obligation arises for the requested state once it receives the extradition request. The obligation is subject to the treaty provisions and applies to persons in relation to an extraditable offence.

UN Model Treaty on Extradition
Article 1. Obligation to Extradite
 * Each Party agrees to extradite to the other, upon request and subject to the provisions of the present Treaty, any person who is wanted in the requesting State for prosecution for and extraditable offence or for the imposition or enforcement of a sentence in respect of such as offence.

This clause is the fundamental basis of the Model Treaty on Extradition. It is the clause that creates the obligation to extradite for an extraditable offence.

For a long time, neither domestic laws nor international treaties existed regarding the conditions or procedures of extradition. Bilateral extradition treaties did not begin to emerge until the 1800's. One of the first multilateral conventions was the influential European Convention on Extradition in 1957, still in force today.

In order to promote new extradition treaties and to provide guidance in their drafting, the United Nations prepared a Model Treaty on Extradition in 1990.

In addition to these general treaties on extradition, provisions on extradition have also been included in several international conventions that deal with specific subjects, such as the United Nations Convention agaist Transnational Organized Crime (UNTOC, Palermo Convention) and the United Nations Convention against Corruption (UNCAC).

In Korea
Extradition found itself into Korea for the first time in 1991. The number of extradited criminals, both inbound and outbound, is on the increase. The Ministry of Justice has established real time one-to-one relationship with officials in charge of extradition in foreign countries for a speedy and efficient extradition. Once the criminal to be extradited to Korea is specified, his/her passport will be immediately nullified in cooperation with the Ministry of Foreign Affairs, and investigation records on the subject will be translated without delay into the relevant foreign language.

Bilateral/Multilateral Treaties
After the extradition treaties have been executed with Australia, Canada, Spain, etc., the European Convention on Extradition (범죄인인도에 관한 유럽협약) was acceeded on September 29, 2011 and came into force on December 29, 2011 (Treaty No. 2070) being consented by the National Assembly on March 10, 2011. As a result, Korea may request the 47 plus 2 Member States of the Council of Europe to extradite the criminals to be punished in due course to Korea. At the same time, Korean government has reinforced the cooperative relationship with South Asian countries, including Thailand, Indonesia, Philippines and Malaysia, where Korean culprits are usually fleeing to evade punishment.

Judicial Review
In accordance with the Extradition Act, a criminal who committed a crime in a foreign country but is staying in the territory of the Republic of Korea is entitled to a judicial review of Seoul High Court, which has an exclusive jurisdiction on the extradition case. Article 3 of the Act.

In November 2012, when a Chinese sentenced to imprisonment of 10 months on charge of intentional arson (throwing a firebomb at the gate) of the Japanese Embassy in Korea was about to be released, the Japanese government requested the Korean government to extradite him to Japan. Mr. Riu Chiang also attempted to set fire at the gate of Yaskuni Shrine (靖國神社) in February 2011. Considering the domestic law, international law and humanitarian principles, the Ministry of Justice resolved to order Seoul High Public Prosecutors' Office to apply for the extradition warrant against Mr. Riu. On January 3, 2013, however, Seoul High Court held that the culprit is classified as a political criminal, whose family members fought against, and suffered the agony of Comfort women by, the Japanese army, and refused to grant extradition of him to Japan. Accordingly Mr. Riu was set free the same day.