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[Music]
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[Music]
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Hi academic greetings, the success of the Indonesian government in
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repatriating fugitives for the BNI Bank case from
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Serbia to Indonesia has an
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interesting side related to extradition.
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Our lecture today will discuss what
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extradition is
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[Music]
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In this lecture I will
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explain what is related to it's extradition
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because I consider knowledge
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about extradition useful for all.
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Extradition has actually been
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carried out since ancient times,
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history records that the ancient Egyptians had
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carried out the extradition process in
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the BC and the development of
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extradition then gained a place
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in international relations was
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seen as a customary
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international law and was later codified
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in several international treaties.
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What exactly is extradition? So if in
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the definition of extradition,
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extradition is actually a
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process of handing over a
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criminal act who has become a
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suspect or has undergone a trial
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process as a defendant or has been
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decided to be a convict
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but the perpetrator has fled to
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a country. Where the perpetrator
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is located, surrendering the perpetrator.
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this crime to the country where
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the criminal event occurred or it can be said to be
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a locus delicti or the place where
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the legal incident occurred.
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In the study of extradition, we often
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use two terms to make it easier to
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recognize how this incident
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occurred, we know that there is namely
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requesting state
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and the requested state .
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Requesting state
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is a locus delicti or a
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place where criminal cases occur.
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or where the criminal is
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doing criminal
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while the requested state is
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the state where it is known that in
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the region
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the Brandals someone who is a
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criminal who is wanted by the requesting state.
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If the requesting state finds out that
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this criminal is in the territory of the
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requested state then there is a process in international law whereby
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the requesting state can submit a
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request for surrender from
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the requested state to the requesting state.
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But, of course it is not that simple
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in international law and international relations process in the request and submission.
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Now let's see What is the basis of
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a request and what is the basis for the
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submission of criminals in
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the extradition process
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There are three possibilities that could be the basis for
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this extradition process,
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The first is a bilateral agreement between requesting
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countries and the countries requested.
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The second is a multilateral
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agreement followed by these two
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countries which in the agreement
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is regulated in connection with the
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possibility of an extradition process
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if someone violates the law
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related to the agreement that has been
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agreed. and The third alternative
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is the principle of reciprocity, which
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is a reciprocal relationship
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diplomatically between one country and another.
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[Music]
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Bilateral agreements related to two
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countries which contain an agreement
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to carry out the extradition process between the two, we also call it an
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Extradition treaty.
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In an extradition treaty, we recognize that there are two
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approaches that can be taken by
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each party in entering
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into an agreement related to any crime or
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crime that the perpetrator
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can be submitted to in an extradition process,
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The first concept is to clearly state a list of crimes
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for which the perpetrator can be requested. extradition by each party
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Its usually call the enumerative system or the extradition
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treaty system that uses a list
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To facilitate understanding related to the agreement with this list
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I give an example, our country Indonesia
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holds an agreement of extradition with
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a country before, for example, Malaysia,
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Indonesia and Malaysia agreed in the extradition treaty
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a list of crimes that can be extradited, for example,
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there are 25 types of crimes agreed, if the perpetrator is found to be
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in one of the treaty countries ,
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the requesting state can request to do so. Submit
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extradition to the requested state
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and the requested state should be surrender the perpetrator based on an agreement
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that has been agreed upon there is a standard
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that crimes listed in
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this context are generally crimes
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that have a mass threat of a sentence of
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at least one year provided this note
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there is a principle in the agreement.
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extradition to note that there should
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be dual criminality or
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the crimes included
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in the list I Identify examples of 25 should constitute
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a criminal offense that recognized
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under Indonesian law and is also recognized in Malaysian law.
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So that at any time if there is a criminal
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act that occurs in Indonesia
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then the perpetrator runs away to
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Malaysia then
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the Indonesian government cannot
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ask for surrender or cannot
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extradite from Malaysia to
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Indonesia if by chance Indonesia does not
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do anything It is not
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a criminal act in Malaysia,
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This is called the double criminality principle
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and it has been agreed from the beginning in an
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extradition treaty in general.
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Well that is with a list system.
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The weakness of this system
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is this agreement of course only
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will reach out to criminal acts
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listed in the extradition treaty and
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if in the future unfortunately
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a new type of crime occurs, I will give
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an example, for example, the one that is rife is
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cybercrime, but coincidentally,
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because Indonesia and Malaysia the extradition agreement
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has been old enough and has
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never been renewed then cybercrime which has not been included
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in the extradition treaty So if
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there is a perpetrator who want to extradite,
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so it will bump into the rules on 25
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or the list that is in this extradition treaty.
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Now that's a weakness that is found if an
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extradition treaty then uses a
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checklist system. Regarding the weakness of this
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system, the international customary practice
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and also recognized in
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international diplomatic relations,
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a second concept is recognized, namely a
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concept that is eliminative in a system
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or a concept that does not list
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but provides a limitation related
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to which criminal offense can be
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requested for extradition,
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for example To simplify one
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of the conditions
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or limitations given
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is for example this way that this
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extradition treaty is related to one
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criminal, in each country has a minimum sentence of
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one year in prison
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From here we will see that we still
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use double criminality that
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each country recognizes that
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there is a crime or
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also recognized as a criminal offense
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in each country and then there is a
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limit that the minimum sentence
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for each country is one year,
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there is a flexible one so it will not only reach out to the perpetrator. - the perpetrator of
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a criminal offense that occurred at the time
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the agreement was carried out with one year of worth.
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So if for example for a new crimes, like cybercrime,
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then it will still apply automatically
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because, for example, cybercrime in both sides
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threat of punishment is more than one year.
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this is more flexible and more accessible and can last a long time for the treaty.
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[Music]
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Next, if we have discussed the
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bilateral agreement , there is another
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multilateral agreement, this agreement is
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followed by many countries.
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Multilateral treaty which contain
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rules related to the extradition process
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between countries participating in
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multilateral treaty , in general, we will
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find in multilateral agreements
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that regulate certain crimes
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so that they are more specific, for
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example, the United Nations
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convention against corruption, so there is
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a Convention or international
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agreement established by the
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United Nations which is an international
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agreement against corruption.
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Indonesia was also
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bound by this agreement.
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In a regulation in this treaty, it was said that
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extradition would be a mechanism if there was a
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suspect or defendant or
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convicted of a corruption case that
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occurred in a participating country of
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this multilateral agreement.
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then in the territory of a country that
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is also a participant in
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this multilateral agreement , then
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there is an extradition process that can be
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carried out between countries participating in
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the multilateral agreement
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with the note once again that based on the pacta sunt servanda principle
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This is only binding on the parties
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So if this agreement is followed, for example, 50 countries then the 50 countries have
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a bond to do and agree
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to abide by the agreement because
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there is good faith from each of them to
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make the agreement and that means there is an
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obligation to implement the regulations.
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That and therefore in the extradition process
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that can be carried out between
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the 50 countries or among the treaty
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participants, that's about the
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concept that we can recognize if the
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agreement that is the background of an
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extradition process is carried out
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based on a multilateral agreement.
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Another multilateral agreement
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which also introduces the concept of extradition is the international treaties
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related to extra ordinary crimes or serious crimes.
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of very serious crimes against
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the international community
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these activities are primarily
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activities related to
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humanity, so these humanitarian activities
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have been granted as an international crime and
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the concept of jurisdiction has been expanded to
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become universal jurisdiction,
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what are the implications of a crime
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being an international crime
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based on universal jurisdiction, then
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every country that knows that there are
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perpetrators of this universal crime in the
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territory of its country, there is an obligation
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for it to
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arrest and detain even
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given the authority to try the
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perpetrator by using its
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national law regardless
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of the nationality of the perpetrator and
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also what is the locus delicti or location
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of the extra Ordinary
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international crime
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if the country does not want to
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try this term unwilling or
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if the country is unable to prosecute
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then the country can extradite the perpetrator to
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a country that has the authority or
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has jurisdiction over the incidents of
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crimes against humanity
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committed by the perpetrator so
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here it seems that there is a difference. a concept
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based on universal jurisdiction of extradition
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different from ordinary crimes promised by extradition treaties.
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How if the requesting country and the requested country do
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not have an extradition treaty, what can be done?
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In the concept of international law, we know the
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principle of reciprocity
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which can be a diplomatic step in
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international relations
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between countries. A country
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that is asked to hand over a
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criminal who happens to be known to
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be in the territory of his country can
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give or hand over the requested
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perpetrator to the country
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requesting based on good relations
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because the reciprocal relationship
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may be reciprocal because there is something bargains
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Or there could be
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reciprocity, for example the exchange of fugitives
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or other political decisions
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which are then agreed upon by the state
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requested to surrender, so its the character of reciprocity
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I is also known in international law
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that extradition can be carried out
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in these ways, are
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diplomatic and what is the
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principle of reciprocity and what has been
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done by the Indonesian government and Serbia.
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There some of the main principles in
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the extradition must be considered in
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an event extradition, The first principle
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is the principle of specificity or
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commonly called the specialty principle.
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states requesting such has been received the
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surrender of criminals then
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process of litigation or also
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the sentencing of
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offenders who have been given it
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only against crime or
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a crime that is requested to be submitted
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so simple example so that
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requesting country asks a principal
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of the requested state
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over the al crime, for example murder.
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with particular case, then when
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the killers arrived in a country that asked
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this killer can only be
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sentenced or threatened with punishment related
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to the crime of murder, can not
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be subject to other crimes
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even though he is known to be the culprit,
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that is meant by the principle of specialty.
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the next principle is the principle of nationality
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In the concept of extradition it is known that, and it is
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recognized that, a country is not obliged
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to surrender its citizens to be
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surrendered in the extradition process
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I give another example, there was a Malaysian
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citizen who committed a criminal act in
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Indonesia and then managed
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to escape back to his country to
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Malaysia
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Indonesia, which already has an
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extradition treaty with Malaysia
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knowing that the perpetrator is back in Malaysia then
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submits a request for extradition or
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submission of the perpetrator
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based on the principle of nationality in international law
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that a requested country is
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not obliged to surrender its
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own citizens in an
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extradition process, but if
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the Malaysian state wishes to enforce the law, t
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the Malaysian government may surrender the perpetrator to be
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surrendered in the extradition process,
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but still under the principle of nationality there is no obligation
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The next principle to the principle of nebis in idem
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this principle states that a perpetrator can not
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be sentenced twice for
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one case which means that if,
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for example, he has been tried in one
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country then other countries may not
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ask for surrender or extradition
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for the same case to be tried
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again because he has received a
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sentence or court process on the
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basis of a criminal act
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So if the perpetrator has already been tried and then the
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court has decided whether
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he has been sentenced to a criminal sentence or is he
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declared acquitted then for the incident that occurred The
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requesting state may not be terminated
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again by the requesting state which is
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called the principle of nebis in idem.
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The next principle that has received a
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lot of debate and discussion is
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related to the absence of submissions
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with political criminals.
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This becomes a debate because there is no single or definitive
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interpretation either in national
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law and international law,
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what is meant by
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political crimes depends on the
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interpretation of each country to
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view a legal event that
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occurs over a political event,
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so often when a political event
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occurs and then there is an actor whose
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extradition is wanted by
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a country There is a theory that we
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find in various literatures
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called the preponderance theory
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lIt lays the basis of analysis on the
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concept that to determine whether this is a political crime or not,
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the state can see and
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analyze whether the political event is political
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or not. the political motive is bigger
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than the general criminal motive or
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usual crimes. If it is said or the
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state concludes that this is
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politically motivated then it
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is a political activity
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therefore based on the concept of
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extradition or is also raised in various extradition
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treaties between
00:24:14
states , it is said that for cases involving
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Politically related or
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motivated, there is no obligation
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to surrender actors from
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the requested state to the requesting country,
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but there is also a clause
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which we find in the context of tradition
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and in various literatures, namely
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about Attentat Clause.
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It is stated even though it
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is a political event. but
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if it is an assassination attempt or planned
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assassination against the head of state and /
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or his family then it must not be
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viewed as a political
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event , it is a crime that
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can be requested for extradition. This is seen as a attentat clause.
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and we also find many in various
00:25:08
extradition treaties in various countries .
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Other thing also accepted apart from
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politics is that there is no
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surrender of criminals, if
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it is related to ethnicity, religion and race in a process of
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requesting extradition then there is also
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no submission. the perpetrator if it
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is a crime within
00:25:42
the scope of a military crime if the crime is not
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something of a general criminal nature
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Another principle that we will also find a little difference in
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practice is related to death penalty.
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We understand that there is a state legal system in terms of
00:26:02
death penalty, there are countries that still
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adhere to the death penalty for
00:26:07
certain crimes, but there are countries that
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completely remove the threat of the death
00:26:12
penalty in a criminal offense or
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this criminal law becomes a matter of
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debate and becomes an
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obstacle in an extradition process.
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or even when starting to
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carry out extradition treaties because
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countries that have abolished the
00:26:30
death penalty will declare that
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this country does not have an
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obligation to hand over a
00:26:37
perpetrator if it finds out that the perpetrator
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is brought to trial in the country
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requesting that he has the potential to be
00:26:47
threatened or sentenced to death.
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then the country concerned feels that this principle
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can refuse to surrender extradition.
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This is also commonly raised in the extradition treaty agreement
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that there is a principle of not surrendering an
00:27:04
offender whose punishment
00:27:07
may potentially be given a
00:27:09
death sentence.
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The last principle is expired.
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as we know that
00:27:17
the expired principle are also
00:27:20
differences in the legal system in various
00:27:22
countries, there are countries that adhere to the principle of
00:27:25
expired for one particular crime
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there is a certain time limit for a
00:27:31
crime that can be processed in
00:27:33
court or can be sentenced to,
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for example, given a time limit
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25 years, then one crime, one
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legal event, he will make
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expired 25 years later when it also
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reaches an expiration date, the
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legal event can no longer be in the process in court.
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But there are countries that
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do not adhere to an expiration date This means
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that a crime
00:28:00
can still be processed at any time. to
00:28:02
be tried for punishment.
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if there are two different countries this legal
00:28:07
system continues then wants to make
00:28:09
an extradition process
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or even go through the initial process of work
00:28:14
This situation usually also has
00:28:16
obstacles here, there must be
00:28:18
a fairly in-depth discussion related to
00:28:20
how to use it with the future.
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This expiration must be mutually agreed upon and it is
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entirely clear that the agreement
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In additional note. Our
00:28:29
country Indonesia has had
00:28:32
several extradition treaties with
00:28:35
several countries including, for example
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, Malaysia Thailand India with
00:28:41
South Korea and Australia, a
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country which until now also
00:28:46
still exists. erus in the discussion of the
00:28:48
agreement is Singapore and this
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is always the subject of discussion
00:28:53
because there is information that Singapore
00:28:58
is the country where
00:29:00
fugitive corruptors in Indonesia have fled,
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so the extradition treaty with Singapore
00:29:07
is very important.
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Even so, the
00:29:11
moment that has just happened is the
00:29:13
arrest of fugitive bank robbers. BNI
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in Serbia of course, this being good
00:29:21
news for us that turned out without
00:29:25
extradition treaty also by
00:29:27
utilizing the principle of reciprocity, so of course
00:29:31
we can establish cooperation
00:29:34
with Singapore to catch
00:29:38
the fugitive criminal, especially in
00:29:42
cases of corruption that have not been
00:29:43
handled or resolved Up
00:29:46
to at the moment
00:29:52
These legal principles are the
00:29:53
basis for consideration of carrying out
00:29:56
an extradition process either through
00:30:00
a bilateral agreement or through
00:30:03
a multilateral agreement or perhaps
00:30:05
based on the principle of reciprocity
00:30:08
This is what I can deliver in a bit,
00:30:15
actually related to what is
00:30:18
extradition with the hope that this can
00:30:20
add to our collective insight so that
00:30:23
when an extradition process occurs
00:30:25
we get information related
00:30:28
to it, then we can
00:30:30
analyze that and examine the extent of
00:30:35
the extradition process or event
00:30:38
. based on the principles that exist
00:30:40
in international law or in
00:30:44
international customs in a
00:30:45
process of international relations
00:30:48
I think that's our lecture today, hopefully there useful
00:30:52
seems to be less, I
00:30:54
beg your forgiveness and as usual you can convey
00:30:58
suggestions and topic suggestions
00:31:01
via email to riksawaninstitute@gmail.com
00:31:04
Thank you, goodbye and greetings academics
00:31:16
hi hi
