Extradition of Fugitive

Extradition of Fugitive Alleging Failure to Comply With Requirements of Extradition Treaty in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): On December 20, 2011, the U.S. Court of Appeals for the Second Circuit reversed the district court's grant of habeas relief to a Greek fugitive whom the U.S. government sought to extradite to face charges as an accessory to homicide in Greece. Skaftouros v. United States, 667 F.3d 144 (2d. Cir. 2011). Skaftouros successfully challenged his extradition in the district court based on purported failures to comply with requirements of the Extradition Treaty between the United States and Greece (“the Treaty”). First, he claimed that the arrest warrant issued in Greece was not valid because it had not been signed by the clerk of the court there. Second, he claimed that the applicable statute of limitations had expired.

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The Court of Appeals held that the district court had improperly placed the burden of proof on the government to prove compliance with the extradition treaty and had further erred in engaging in an analysis of the foreign country's laws and procedures beyond what was needed to ensure compliance with the extradition treaty. With the proper allocation of burden and inquiry, the Court concluded that the arrest warrant was valid under the Treaty and the statute of limitations had not run. The Court reversed and remanded, directing the district court to order extradition.

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The Court also explained that the district court's error was based in part on a misreading of another Second Circuit decision that was issued while the Skaftouros habeas petition was under review, Sacirbey v. Guccione, 589 F.3d 52 (2d Cir.2009). In that case, the Second Circuit held that the arrest warrant of the fugitive was invalid under the extradition treaty because the court in Bosnia that had issued it had been dissolved and no new warrant had been issued. The Court in Skaftouros explained that the circumstances in Sacirbey were extraordinary and distinguishable from those in Skaftouros.

The Second Circuit's opinion is excerpted below with footnotes and the discussion of the background in the case omitted.

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B. The District Court Erred in Granting Skaftouros's Habeas Petition …[W]e hold that the District Court erred in granting Skaftouros's petition for a writ of habeas corpus. The District Court's primary error was in imposing the burden of proof on the Government to show that the requirements of Greek law had been met. As a result of this underlying error, the District Court wrongly concluded that Greece had not produced a valid arrest warrant and that the statute of limitations had expired. We address each error in turn.

1. The District Court Erred in Imposing the Burden of Proof on the Government It is apparent from the opinion under review that the District Court placed the burden of proof on the Government in the habeas proceeding. With respect to the statute of limitations issue, this placement was explicit: “Although the Government need not prove beyond a reasonable doubt that the statute of limitations has not run in an extradition proceeding, …. [t]he internally inconsistent documents submitted without sufficient explanation do not serve to meet even the Government's lesser burden of proof on the statute of limitations issue.”

Skaftouros II, 759 F.Supp.2d at 360–61. Although the District Court did not expressly place the burden of proof on the Government with respect to the issue of whether Greece had satisfied the Treaty's requirement of a “duly authenticated warrant,” it interpreted the U.S. opinion in Sacirbey to “obligate [ ] the Government to prove the existence of a 'valid arrest warrant' ” in order to defeat the habeas petition. Skaftouros II, 759 F.Supp.2d at 358 (quoting Sacirbey, 589 F.3d at 67 (emphasis in Skaftouros II )). We hold that it was error for the District Court to effectively impose on the Government the burden of proving that Skaftouros was not “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3).

Extradition of Fugitive Alleging Failure to Comply With Requirements of Extradition Treaty in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): Importantly, the U.S. analysis in Sacirbey was limited to determining whether the requirements of the extradition treaty were met; the majority opinion did not engage questions of Bosnian law. See 589 F.3d at 63. Thus, when we stated that “the proof required under the Treaty to establish that an individual has been 'charged' with a crime is a valid arrest warrant,” id. at 67, we were not referring to validity as a matter of technical compliance with Bosnian criminal procedure, but rather to validity under the applicable treaty. To the extent the language in the U.S. opinion in Sacirbey has engendered confusion on this point, we now clarify that a “valid arrest warrant” is one that is “duly authenticated” as required by § 3190 and the applicable treaty, and sufficient to show that the fugitive is currently charged with an offense recognized by the treaty. It must, in other words, show that the fugitive is in fact “prosecutab[le]” upon extradition to the demanding country. See McMullen, 989 F.2d at 611.

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Unlike the arrest warrant in Sacirbey, which failed to show that the fugitive was currently charged and prosecutable, the arrest warrant provided by Greece in this case satisfies these requirements. The defects that Skaftouros identifies—namely, that the warrant does not contain the signature of the Clerk or a sufficiently detailed description of his face—are technical in nature, not jurisdictional as in Sacirbey. And, as we have stated before, arguments that “savor of technicality” are “peculiarly inappropriate in dealings with a foreign nation.” Shapiro, 478 F.2d at 904 (quoting Bingham, 241 U.S. at 517, 36 S.Ct. 634 (internal modification removed)).

Skaftouros is, of course, free to raise these technical objections before the courts of Greece, which, we are confident, will be more competent to address them than an American court. …. the U.S. concern is solely with the requirements of the Treaty and the federal extradition statute. We hold that the arrest warrant satisfies these requirements because it is duly authenticated and shows that Skaftouros is currently charged with an offense recognized by the Treaty, and is therefore prosecutable.

3. The Treaty's Requirement that the Statute of Limitations on the Charged Offense Not Have Expired is Satisfied.

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The District Court properly noted that the Treaty does not permit extradition where, “'from lapse of time or other lawful cause, according to the laws of either of the surrendering country [sic] or the demanding country, the criminal is exempt from prosecution or punishment for the offense for which the surrender is asked.' ” See Skaftouros II, 759 F.Supp.2d at 359 (quoting Treaty art. V). Because the Treaty itself requires an examination of whether the statute of limitations of either the demanding or asylum country has expired (and because the United States does not have a statute of limitations for first degree murder…), it was proper for the District Court to examine Greek law for the limited purpose of determining whether its statute of limitations had expired. In so doing, however, the District Court again improperly placed the burden on the Government to prove that the statute of limitations had not run, rather than on Skaftouros to prove that it had.

The parties agreed that the Greek statute of limitations for aggravated murder is ordinarily twenty years. The Government, however, argued that the normal statute of limitations had been extended under Article 113 of the Greek Criminal Code, which states that the statute of limitations may be tolled for up to five years when it is not possible to commence or continue a prosecution. … In support of this argument, the Government submitted a letter from the Public Prosecutor of the Court of Appeals of Athens stating that the statute of limitations had been so tolled in this case, owing to Skaftouros's failure to appear to answer the charges against him. In order to show that Skaftouros had been properly served with the indictment, a requirement of Article 113, the Government produced the April 17, 1991, request from the Public Prosecutor that police serve the indictment; the May 6, 1991, confirmation from the police to the Public Prosecutor that the indictment had been served on Skaftouros's mother; and the October 1991 Order suspending the proceedings, which noted the “legal service” of the indictment on May 5, 1991. In the habeas proceeding, it was Skaftouros's burden as the petitioner to show that the statute of limitations had not in fact been extended by operation of Article 113 and therefore had expired. This Skaftouros attempted to do by arguing that only the original certificate of service of the indictment would suffice to show that the statute of limitations had been extended. However, Skaftouros offered no authority for this position, save for the unsworn and unsupported assertion of his own lawyer in Greece.

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We find that the averment of Skaftouros's Greek counsel was insufficient to satisfy Skaftouros's burden of proving that the statute of limitations had not been extended. The District Court's contrary holding was error, and derived from its improper placement of the burden of proof on the Government. See Skaftouros II, 759 F.Supp.2d at 360 (finding that “the Government has not provided adequate proof that the Order extending the statute of limitations was served on Skaftouros or his close relative”).

In placing the burden of proof on the Government, the District Court relied on the U.S. opinion in Jhirad v. Ferrandina, 536 F.2d 478 (2d Cir.1976). In Jhirad, however, the U.S. consideration of the question of burdens of proof was limited to whether the demanding country in an extradition proceeding should have to prove beyond a reasonable doubt that the American statute of limitations was tolled by virtue of 18 U.S.C. § 3290, which provides that “[n]o statute of limitations shall extend to any person fleeing from justice.” See Jhirad, 536 F.2d at 484–85. Noting that the interests served by the beyond-a-reasonable-doubt standard apply “with less force in the context of an international extradition proceeding,” we held that India, the demanding country and real party in interest, was only required to prove by a preponderance of the evidence that the statute had been tolled. Id. at 484. We did not address the assignment of the burden of proof in a habeas proceeding challenging the legality of an extradition proceeding, but rather the assignment of the burden in the extradition proceeding, itself.

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The evidence before the District Court strongly suggested that the statute of limitations had been tolled by virtue of the October 1991 Order. Skaftouros's argument that the October 1991 Order was ineffective because there was insufficient proof that he had been served with the indictment is supported only by the word of his own Greek attorney—an averment lacking any indicia of reliability whatsoever. It is clear to us, therefore, that Skaftouros did not meet his burden of proving, even by a preponderance of the evidence, that the applicable Greek statute of limitations had expired or that Article V of the Treaty had not been satisfied.

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See Also

• International Criminal Law
• Extradition
• Mutual Legal Assistance