Extradition Treaty Requirements

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Extradition Treaty Requirements

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”): Habeas corpus, it is well known, “is not a neutral proceeding in which the petitioner and the State stand on an equal footing. Rather, it is an asymmetrical enterprise in which a prisoner seeks to overturn a presumptively valid judgment….” Pinkney v. Keane, 920 F.2d 1090, 1094 (2d Cir.1990) (construing 28 U.S.C. § 2254); see also Fernandez, 268 U.S. at 312, 45 S.Ct. 541 (habeas corpus “is not a means for rehearing what the magistrate already has decided. The alleged fugitive from justice has had his hearing….”). Because we accord a presumption of validity to a judgment on collateral review, it is the petitioner who bears the burden of proving that he is being held contrary to law; and because the habeas proceeding is civil in nature, the petitioner must satisfy his burden of proof by a preponderance of the evidence. Parke v. Raley, 506 U.S. 20, 31, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992) (“Our precedents make clear … [that] the presumption of regularity that attaches to final judgments makes it appropriate to assign a proof burden to the [petitioner].”); Walker v. Johnston, 312 U.S. 275, 286, 61 S.Ct. 574, 85 L.Ed. 830 (1941) (“On a hearing [the § 2241 petitioner has] the burden of sustaining his allegations by a preponderance of evidence.”).

More about Extradition of Fugitive Alleging Failure to Comply With Requirements of Extradition Treaty

Although we are not aware of any specific authority on the subject, we see no reason why the general habeas corpus standard of proof would not apply to habeas petitions arising from international extradition proceedings. As the Supreme Court held in a case construing the interstate extradition statute, 18 U.S.C. § 3181, “[p]rima facie[, the petitioner is] in lawful custody and upon him rest[s] the burden of overcoming this presumption by proof.” South Carolina v. Bailey, 289 U.S. 412, 417, 53 S.Ct. 667, 77 L.Ed. 1292 (1933). Similarly, collateral review of an international extradition order should begin with the presumption that both the order and the related custody of the fugitive are lawful.

We therefore hold that, in order to merit habeas relief in a proceeding seeking collateral review of an extradition order, the petitioner must prove by a preponderance of the evidence that he is “in custody in violation of the Constitution or laws or treaties of the United States,” 28 U.S.C. § 2241(c)(3), which, in this context, will typically mean in violation of the federal extradition statute, 18 U.S.C. § 3184, or the applicable extradition treaty.


This is not to say that a judge considering a petition for a writ of habeas corpus arising out of an extradition proceeding is expected to wield a rubber stamp. To the contrary, as we observed in Sacirbey, despite the narrow scope of habeas review in the extradition context, “[i]t is nevertheless 'our duty … to ensur[e] that the applicable provisions of the treaty and the governing American statutes are complied with.' ” 589 F.3d at 63 (quoting Petrushansky, 325 F.2d at 565). However, Sacirbey did not impose a general burden of proof the Government in the context of a habeas proceeding. Although we held that the applicable extradition treaty required the demanding country to “provide, inter alia, a valid warrant,”

589 F.3d at 67 (emphasis added), that holding related to the initial extradition proceeding, where the Government, on behalf of the demanding country, does indeed bear the burden of proof. We did not hold that the burden remains with the Government at the habeas stage, after a presumptively valid certificate of extradition has already been issued.

The District Court's placement of the burden of proof on the Government in this case was error. As explained in more detail below, this error caused the District Court to improperly examine Greece's compliance with its own law and to determine that certain requirements of the Treaty were not satisfied. These were legal determinations, which we review de novo. …. Upon a review of the record, we conclude that the requirements of the U.S. extradition statute, 18 U.S.C. § 3184, and the Treaty have been satisfied.


2. The Treaty's Requirement of a “Duly Authenticated” Warrant is Satisfied Had the burden of proof been properly assigned by the District Court, in order to obtain the writ of habeas corpus, Skaftouros would have been required to prove, by a preponderance of the evidence, that the arrest warrant provided by the Greek government did not satisfy the Treaty's requirement of a “duly authenticated warrant” sufficient to show that he was “charged” with a crime recognized by the Treaty. Upon a review of the record, we hold that Skaftouros did not, and cannot, carry this burden.

More about the Issue

In common with other extradition treaties, the U.S.-Greece Treaty requires that, in cases where a fugitive is “merely charged with crime, a duly authenticated copy of the warrant of arrest in the country where the crime was committed, and of the depositions upon which such warrant may have been issued, shall be produced.” Treaty art. XI. Greece fully complied with this requirement by submitting a warrant for Skaftouros's arrest that was authenticated by the U.S. Ambassador to Greece, along with an indictment demonstrating the existence of probable cause to believe Skaftouros had committed the crime charged. In most cases, the production of an arrest warrant authenticated by the principal diplomatic officer of the United States in the demanding country will suffice to satisfy a treaty's “duly authenticated warrant” requirement. … In this case, however, the District Court went further, and imposed on the Government the burden of proving that the arrest warrant was technically valid as a matter of Greek law. In so doing, the District Court explained that it relied on the U.S. opinion in Sacirbey, and in particular the U.S. reference therein to the invalidity of a foreign arrest warrant. But Sacirbey was not intended as a break from the previous, well-established authority that the question of whether an arrest warrant is in technical compliance with the law of the demanding country is not to be decided by U.S. courts. Rather, Sacirbey stands for the unexceptional proposition that a foreign arrest warrant cannot suffice to show that a fugitive is currently charged with an offense, as required by most extradition treaties, where the court that issued the warrant no longer has the power to enforce it.


See Also

  • International Criminal Law
  • Extradition
  • Mutual Legal Assistance

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